Ochieng v Kassim & 2 Others (Civil Suit 53 of 2021) [2024] UGHC 895 (30 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL SUIT NO. 53 OF 2021

# DAVID OCHIENG OKOLONG ::::::::::::::::::::::::::::::::::::

## **VERSUS**

### 1. KASSIM MUHAMED HASSAN

### 2. SEKIDDU SEMEI KAKUNGULU

# 3. KYANGWA KAKUNGULU :::::::::::::::::::::::::::::::::::

#### BEFORE HON. JUSTICE LUBEGA FAROUQ

## **RULING**

# 1. Introduction

- 2. At the mention of this case on 16th September 2024, counsel for the Plaintiff informed this court that; the Plaintiff, the 2nd and 3rd Defendants had resolved their differences for which reason they had entered into a partial consent to the effect that - i. The $2^{nd}$ and $3^{rd}$ Defendants relinquished their interest in the suit property having lawfully sold the same to the Plaintiff by the agreement on $8^{\text{th}}$ June 2021; - ii. Orders as to mesne profits, general damages and costs have not been preferred in the circumstances; - iii. The $2^{nd}$ and $3^{rd}$ Defendants intend to be witnesses for the Plaintiff in any claims about the suit property. - 3. Counsel for the 1st Defendant objected to the said consent settlement on the ground that it is fraudulent and in one way or another, it will prejudice his client.

# 4. Legal Representation

5. Counsel Ogalo Dan Wandera together with Counsel Brian Othieno appeared for the Plaintiff, Counsel Okuku James appeared for the 1st Defendant while Counsel Maasa Joseph appeared for the 2nd and 3rd Defendants.

# 6. Objection by counsel for the $1^{st}$ Defendant

- 7. Counsel submitted that the partial consent talked about is a fraudulent one for reasons that the contested property of which they agreed was lawfully bought by the $1^{st}$ Defendant from the $2^{nd}$ and $3^{rd}$ Defendants through their agent Wegoye Samuel and he is in lawful possession of the same. - 8. He added that the main purpose of the proceedings of the day was for him to raise a preliminary objection to the effect that the suit discloses no cause of action against the 1st Defendant because he was not privy to the Plaintiff's consent with the $2nd$ and $3rd$ Defendants and therefore that the consent cannot be admitted on record unless the preliminary objection he intends to raise is admitted.

# 9. Reply by counsel for the $2^{nd}$ and $3^{rd}$ Defendants

- Counsel Maasa submitted that his clients were sued and that is the 10. reason why they were in court and they saw it wise to settle the matter amicably hence the reason they came up with a partial settlement with the Plaintiff. - $11.$ He added that counsel for the $1^{st}$ Defendant has no right whatsoever to stop the consent because he does not represent any of the parties therein and therefore his clients are finding way not to fall victim of the consequences of these proceedings.

#### $12.$ Reply by counsel for the Plaintiff

- Counsel Wandera Ogalo submitted that counsel for the 1st Defendant 13. imputes that the document represented totally lies about its self but the parties who signed it and their respective counsel were all in court and are not questioning the same. He added that the ground that the 1st Defendant lawfully purchased the suit land is what court will determine. - $14.$ Counsel Othieno submitted that entering the said partial consent does not stop counsel for the 1st Defendant from raising his preliminary objection. - 15. He added that ever since they filed the instant suit in 2021, every time they would appear in court, counsel for the 1st Defendant always

threatened to raise a preliminary objection and that he always told him to do so, but it seems he has failed or refused to raise the same.

He concluded by submitting that if court is inclined to allow him, he 16. should raise it orally and they respond to the same and close that chapter.

#### 17. In rejoinder by counsel for the $1^{st}$ Defendant

- Counsel submitted that this court cannot entertain an illegal consent. 18. First that a consent agreement is a contract and one of the basic ingredients of a contract is that, it must be lawful and therefore that it will not prejudice the $1^{st}$ Defendant. - 19. **Analysis of court** - 20. Order 25 Rule 2 of the Civil Procedure Rules SI 71-1 provides that-"*When a suit has been set down for hearing it may be withdrawn* prior to the hearing by either the plaintiff or the defendant upon *filing a consent signed by all the parties.*" - The above provision means that a suit may be withdrawn by consent of 21. the parties prior to its hearing and the same must be signed by all the parties. - 22. In the instant case, the Plaintiff has entered into a partial consent settlement where the $2^{nd}$ and $3^{rd}$ Defendants have relinquished their right of ownership in the suit property. In other words, they no longer have any claim in the suit land. The $2^{nd}$ and $3^{rd}$ Defendants further consented that they intend to be the Plaintiffs witnesses. - 23. The position of the law is that the Plaintiff has a right to decide who to sue and not to sue following his claim. In the same vein, he can decide to withdraw his claim against any party he has sued. (See: Mumbai International Airport (P) Ltd V. Regency Convention Centre and Hotels (P) Ltd (2010) 7 SCC 417) - It is also the position of the law that the Defendant can as well withdraw 24. his or her claim in the matter that is lodged against him or enter a partial consent settlement where he or she agrees upon some facts of the case while others remain uncontested. - 25. The partial consent settlement in the instant case is however ambiguous. The rights which the 2nd and 3rd Defendants are relinquishing

are the rights which are under contention in this suit and in Civil Suit No. 36 of 2021 which the parties did not address this court about. This would therefore imply that whether the 2nd and 3rd Defendants relinquish their rights in the suit property or not, to this court, it has no effect to the Plaintiff's case since the suit property has other claimants. In other words, the 2nd and 3rd Defendants ownership of the suit land is still under challenge.

- Secondly, according to the partial consent settlement, under clause 3, 26. the $2^{nd}$ and $3^{rd}$ Defendants indicate that they intend to be the Plaintiff's witnesses. This court however wonders whether the 2nd and 3rd Defendants are going to be Plaintiff's witnesses as well as Defendants because, the Plaintiff has literally not withdrawn his case against them. I find this outrageous. - Thirdly, it is notable from the court record that the $2^{nd}$ and $3^{rd}$ 27. Defendants instituted Civil Suit No. 36 of 2021 against the 1st Defendant and a one Wegoye Samuel (allegedly lawful attorney) but the same abated for failure to take out summons for direction. The 2nd and 3rd Defendants then appealed against that order to the High Court under Civil Appeal No. 91 of 2021 but the same was withdrawn on 13th of October, 2021. - It should however be noted that the major issue between all the parties 28. arises from the power of attorney which the $2^{nd}$ and $3^{rd}$ Defendants allegedly gave to a one Wegoye Samuel and used it to sale the suit land to the 1st Defendant. The same land was further sold to the Plaintiff by the $2nd$ and $3rd$ Defendants. These are the questions which court needs to answer instead of the partial consent settlement which the Plaintiff, 2nd and 3rd Defendants wants this court to admit on court record. - To this court, the partial consent settlement is ambiguous and its effect 29. cannot be established as of now. - Secondly, as already observed, the court record indicates there are 30. other parties who claim to have interest in the same subject matter as the Plaintiff. Court cannot therefore enter a consent settlement which may fundamentally be prejudicial to the other parties who have the same claim in the suit land.

- In the view of the above, the partial consent settlement is hereby 31. rejected. - Court shall therefore proceed to hear the matter inter-parties as they 32. appear on the court record. - 33. I so order.

$\mathcal{L} = \mathcal{L}_{\mathcal{L}_{\mathcal{L}(\mathcal{L})}}$

$= 2 - \varepsilon$

LUBEGA FAROUQ Ag. JUDGE Ruling delivered via the emails of the parties on $30th$ of September, 2024.

$\langle \infty \rangle = \langle \infty \rangle$

$\mathbb{R}^{n} \longrightarrow \mathbb{R}^{n} \longrightarrow \mathbb{R}^{n} \longrightarrow \mathbb{R}^{n} \longrightarrow \mathbb{R}^{n}$