Nasari v Kabere & 4 Others (Miscellaneous Application 5 of 2024) [2025] UGHC 73 (27 February 2025)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0005-2024

(Arising from HCT-05-CV-CS-0038-2023)

NASARI RODAH KABEERE !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! **VERSUS**

1. KABERE PETER

2. BASHEMEIRE HELLEN

3. IZOOBA FREDRICK

4. MUTUNGI FELIX

5. J. BAINOMUGISHA ::::::::::::::::::::::::::::::::::::

## **BEFORE:** Hon Lady Justice Joyce Kavuma **RULING**

### Background

This application was brought by a Notice of Motion under **Section [11** 82 and 98 of the Civil Procedure Act, Order 9 Rule 12, Order 11A Rule 1(2) and 1(6), Order 46 and Order 52 of the Civil Procedure Rules as **amended).** The Applicant sought for the following orders:

- 1. The consent/judgment entered on 23rd May 2023 between the 5th Respondent and the rest of the Respondents endorsed by this court be reviewed. $\mathscr{M}$ - 2. That the consent/judgment entered on the 23rd day of May **2023** between the $5th$ Respondent and the rest of the Respondents endorsed by this court be set aside. - 3. That civil suit no. 38 of 2023 abates with costs to the 2nd Applicant. - 4. The costs of the application be provided for.

**[2]** The application was supported by an affidavit deposed to by Nasari Rodah Kabeere the Applicant and it was opposed by an affidavit deposed to by John Bainomugisha the 5th Respondent. I took cognizance of the contents of both affidavit while making this ruling.

#### Background.

$[3]$ The background of the instant application as can be deduced from the Applicant's pleadings was as follows;

It is stated that the 1st, 2nd, 3rd and 4th Respondents instituted HCT-05-CV-CS-0038-2023 against the Applicant and 5th Respondent. That by 30th May 2023, the Plaintiffs had not taken any step towards the prosecution of HCT-05-CV-CS-0038-2023 prompting the Applicant's advocates to apply for the suit to abate. That at the time the 5th Respondent entered into the consent in HCT-05-CV-CS-0038-2023, he had no capacity to do so since he had no defence on the record. That the 5th Respondent together with the 1st, 2nd, 3rd and 4th Respondents illegally and erroneously entered a consent judgment in HCT-05-CV-CS-0038-2023 in toto ignorance of all material particulars relating to the application for letters of administration of the late Kabere. It is further stated that the 5th Respondent colluded and in misapprehension of all material particulars relating to the suit smuggled the consent on court record and had it illegally endorsed by this court. That the consent was tainted with collusion, misapprehension, illegality and was erroneously endorsed by this court. That the Applicant has never been personally informed, participated or consented to the said judgment and not served with it yet she is a party to it.

The gravamen of the $5th$ Respondent's reply to the instant $[4]$ application was that he entered the impugned consent with the Plaintiffs in HCT-05-CV-CS-0038-2023 under free will and not in ignorance of the material particulars of the suit as the Applicant herein claimed. That he filed a written statement of defence in HCT-05-CV-CS-0038-2023 on 18th May 2023 and had never instructed the Applicant's lawyers in the matter to file one on his behalf.

#### Representation.

The Applicant was represented by Mr. Musasire Allan while the **[5]** 5th Respondent was represented by Mr. Muhumuza Ben. Both counsel filed written submissions in the matter which I have considered while making this ruling.

#### Analysis and decision of court.

Two issues were raised by counsel for resolution by this court to $[6]$ wit:

- 1. Whether the consent/judgment dated 23rd day of May, 2023 can be reviewed and set aside. - 2. What remedies are available to either party?

# Issue 1: Whether the consent/judgment dated 23rd day of May, 2023 can be reviewed and set aside.

The jurisdiction to review consent decrees is derived from Section $[7]$ 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules. (See Attorney General and Anor vs Mark Kamoga and Anor (Supreme Court Civil Appeal no. 8 of 2004)).

Section 82 of the Civil Procedure Act provides that;

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"Any person considering himself or herself aggrieved-(a) by a decree or order from which an appeal is allowed this Act but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed...may apply for a review of the judgment to the court which passed the decree or made the order...." (Emphasis is added)

Order 46 Rule 1 of the Civil Procedure Rules in so far as it applies to the instant application provides that:

## "1. Application for review of judgment.

(1) Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made..."[Emphasis Added]

From the above provisions of the law, it follows that for an applicant to succeed on an application for review, they ought to prove to court any of the following grounds; first, that there is discovery of a new and important matter of evidence previously overlooked by excusable misfortune. (See Re Nakivubo Chemists (U) Ltd [1979] HCB 12) Secondly, that there was a discovery of some error or mistake apparent on the face of the record. (See Independent Medico Legal Unit vs The Attorney General of The Republic of Kenya (Application no. 2 of 2012) (EACJ). Thirdly and lastly, that there exists any other sufficient reason of a kind analogous to the first two aforementioned grounds. (See Yusuf vs Nokorach [1971] EA 104).

[8] According to counsel for the Applicant's submissions, the ground upon which the Applicant seeks for review is on the second aforementioned ground, that is; that there was an error of the face of the record.

The court in **Independent Medico Legal Unit vs The Attorney** General of The Republic of Kenya (supra) restated the law on what an error apparent on the face of the record means in the following terms:

> "First and foremost, the term "error apparent on the face of the record" is not/hardly a term of art: one whose meaning has been definitively settled, once and for all. Rather, it is a nebulous legal concept the fluidity of whose content must be interrogated in every case – using the rich jurisprudence that has grown up around it. Second, implicit 🥎 in that term, is the notion that review of a judgment has a limited purpose. It must not be allowed to be an appeal in disguise. The purpose of review is not to provide a back door method by which unsuccessful litigants can seek to reargue their cause. On these two principles hang all the law of "apparent error".

It follows from the above that what constitutes an error apparent on the face of the record varies from case to case therefore each case ought to be decided upon its unique facts. The only unique aspect of such an examination is that the examination must be done with the notion that to review a decision of the court is not to sit as an appellate court. The application before the court should not be a disguised appeal.

The court further laid out the following principles which I shall reproduce;

- (a) The court in determining the expression "error apparent on the record" should do so sparingly and with great caution. - (b) The error apparent must be self-evident; not one that has to be detected by a process of reasoning. - (c) No error can be said to be apparent where one has to travel beyond the record to see the correctness of the judgment. - (d)It must be an error which strikes one on mere looking at the record, and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. - (e) A clear case of "error apparent on the face of the record" is made out where, without elaborate argument, one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it. Drawing from the above, the error complained of by an Applicant must be manifest and self-evident not requiring an elaborate discussion of evidence or argument to establish. (See also Edison Kanyabwera vs Pastori Tumwebaze SCCA no. 6 of 2004).

- [9] The error that the Applicant in the instant matter calls this court to interrogate as has already been indicated in the background of this matter and counsel for the Applicant's submissions lay in a consent judgment which the Applicant alleges was smuggled onto the trial court record, signed by the 5th Respondent who had not filed a written statement of defence in the matter. The Applicant stated that the making of the said consent stifled her non derogable right to be heard by this court. - [10] A general rule exists to the effect that once a judgment has been passed and entered by a court of law, even though tan by consent and under a mistake, it cannot be set aside unless either where there has been a clerical mistake or an error arising from an accidental slip or omission or the judgment as drawn up does not correctly state what the court actually decided or intended to decide. (See Daniel on Chancery Practice, 7th Edition, Vol. 1585).

A consent judgment or order is meant to be the formal result and expression of an agreement already arrived at between the parties to proceedings embodied in an order of court. Such decrees and orders derive their foundation from the agreement of the parties.

A judgment based upon consent of the parties, it is therefore generally accepted that there can be no error in a decree founded on it (consensus tollit errorem) and there can equally be no injustice in such a decree (volenti non fit injuria). (See Webb vs Webb 3 Swantson 658 per Lord Nottingham).

The court, may however, upon proper action by one of the parties, have jurisdiction to set aside a judgment reached by consent upon proper evidence that no consent was ever given, or if the parties had not been consensus ad idem, or if consent of one was procured by misrepresentation, under influence or coercion or any other ground on which an agreement in the terms would be set aside. (See Attorney General and anor vs Mark Kamoga and anor SCCA no. 08 of 2004 and Hudderfield Banking Co. vs Henry Loster & Sons, Ltd. (1895) 2 Ch. 273).

[11] The facts of the instant matter as I understand them are this; the $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ Respondents instituted HCT-05-CV-CS-0038-2023 against the Applicant and 5th Respondent on the facts that the two had fraudulently acquired Letters of Administration for the estate of the late F. K Kabere for whose estate they had failed to make an inventory as required by law.

The Applicant alleges that she and the 5th Respondent instructed M/s Katembeko & Co. Advocates to file a joint defence which filed on 27th April 2023 and served upon counsel for the 1st, 2nd, 3rd and 4th Respondents. The 5th Respondent denied this stating that he has

never instructed the said M/s Katembeko & Co. Advocates to file an inventory on his behalf and that he filed his defence on 18th May 2023 a defence the Applicant contends was filed belatedly and without leave of court. The Applicant contended further by 30th May 2023, 1st, 2nd, 3rd and 4th Respondents had not taken any step in prosecution of HCT-05-CV-CS-0038-2023 so her advocates applied to have the matter abate. A consent, the subject of this application between the 1st, 2nd, 3rd and 4th Respondents and the 5th Respondent was filed and endorsed by this court on $23rd$ May 2023.

The Applicant contends that the said consent was tainted with collusion, misapprehension, illegality and error and therefore it ought to be reviewed.

[12] It is a settled principle of evidence that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove those facts exist. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof. This is the person whose suit or proceeding would fail if no evidence at all were given on either side. (See Section) 102 of the Evidence Act and Besigye Kiiza vs Museveni Yoweri Kaguta and Anor Supreme Court Election Petition no. 1 of 2001).

The standard of proof in cases like the instant one where a party alleges fraud and collusion is beyond mere balance of probabilities required in civil cases though not beyond reasonable doubt as the case is for criminal matters. (See Sebuliba vs Cooperative Bank

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## Limited [1987] HCB 130 and M. Kibalya vs Kibalya [1994 - 95] HCB $80)$ .

The Applicant who desired this court to set aside the consent judgment executed between the 1st, 2nd, 3rd and 4th Respondents and the 5th Respondent to be reviewed and set aside had the uphill task imposed on her by the law to prove to this court, on a standard beyond a mere balance of probabilities that there existed collusion, misapprehension, illegality and error as she alleged. Failure to do this will lead to a dismissal of the instant application.

[13] Collusion means secret agreement or cooperation especially for an illegal or deceitful purpose. It is an agreement to defraud another or to obtain something forbidden by law. (See Garner, B. A., & Black, H. C. (2009). Black's Law Dictionary. 9th ed. St. Paul, MN, West and "Collusion." Merriam-Webster.comDictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/collusion. Accessed 17 Feb. 2025).

Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such proceedings, the suit is said to be a mere sham.

Key to all the above definitions is the element of the existence of a fraudulent intent on the part of the Respondents.

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[14] It is now settled law that questions relating to collusion and fraud must be specifically pleaded and strictly proved to the court. (See Order 6 rule 2 of the Civil Procedure Rules; David Nalima vs Rebecca Musoke Civil Appeal no. 12 of 1985; J Okello Okello vs UNEB Civil Appeal no. 12 of 1987; Kampala Bottlers vs Damanico Uganda Ltd Civil Appeal no. 22 of 1992 and Fam international Limited and anor vs Mohamed Hamid El-Faith Civil Appeal no. 16 of 1993).

Questions of fraud and collusion should not be open for court's consideration on motions like the instant one in which the court ordinarily has to base its decision upon affidavits. (See Hon. Justice Prof. Dr. Kanyeihamba vs The Commissioner Land Registration and anor HCMC no. 79 of 2011).

Such allegations require a full and careful inquiry where witnesses can be cross-examined and this can only be appropriately done through an ordinary suit.

个

Whereas I acknowledge that collusion and fraud are valid grounds for setting aside a consent judgment, the procedure for proving them should be by way of an ordinary suit and not by motion.

The above notwithstanding, I have examined the Applicant's [15] affidavit in support of this application for any evidence of collusion and fraud on the part of the 1st, 2nd, 3rd and 4th Respondents and the 5th Respondent and have not found such evidence on the required standard of proof save for averments of the Applicant in **paragraphs** 13. 14 of the said affidavit.

The mere fact that one of the Defendants in HCT-05-CV-CS-0038-2023 who in this case is the 5th Respondent herein entered into a consent with the Plaintiffs in that matter does not in my considered opinion point towards actionable collusion or fraud. As a Defendant in the matter, he had an equal right to the Applicant herein, to consent on his part against claims brought against him.

This did not in any way stifle the Applicant's right to a fair hearing as she alleged since the suit against her still subsists because the consent was not with her but her co-defendant the 5th Respondent herein and she still has a chance to dispel any allegations made against her should she wish to.

In effect, this application is without merit and is accordingly dismissed without an order as to costs this being done to foster harmony between the parties who are family members.

HCT-05-CV-CS-0038-2023 shall accordingly be mentioned on 27th April 2025.

I so order.

Dated, delivered and signed at Mbarara this ......... day of ....... 2025.

rce Kavuma Judge