The estate of the late Charles James Mark Kamoga & Another v Attorney General & 9 Others (Civil Appeal 1 of 2022) [2024] UGSC 15 (1 February 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Mwondha, Tibatemwa-Ekirikubinza, Chibita, Musoke, Madrama, JJ. SC

# CIVIL APPEAL NO. 01 OF 2022

1. THE ESTATE OF THE LATE **CHARLES JAMES MARK KAMOGA** 2. JAMES KIMALA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. ATTORNEY GENERAL 2. MUGABO PETER BAGONZA 3. LEE SUNG 4. PATRICK OKWARE OKILANGOLE **EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10 EXAMPLE 10** 5. ANN KATABARWA LEMA NORAH 6. J. K SEWANYANA 7. YUSUF AHMED 8. EDITH BAINOMUGISHA 9. SILVER OJAKOL - **10. JOATHAM KAPASI KAKAMA**

(An appeal arising from the judgment and orders of the Court of Appeal Civil Appeal No. 192 of 2019 at Kampala, before Buteera, DCJ, Cheborion, Musota, JJA dated 25th November, 2021)

## JUDGMENT OF MWONDHA, JSC

This is a second appeal, the Appellants were dissatisfied with the judgment and orders of the Court of Appeal and appealed to this court on two grounds as follows: -

- 1. The learned Justices of the Court of Appeal erred in law when they held that High Court Civil Suit No. 450 of 2016 is not res judicata and the same ought to be set down for hearing and determination of the issue of fraud thereby causing miscarriage of justice. - 2. The learned Justices of the Court of Appeal erred in law when they failed to find that High Court Civil Suit No. 450 of 2016 was time barred thereby reaching a wrong conclusion.

The Appellants prayed that this Court: -

- a) Allows the appeal and set aside the judgments of the Court of Appeal and High **Court orders therein.** - b) The costs of this appeal and the Courts below be provided for.

#### **Background.**

The facts of this appeal as accepted by the Court of Appeal are that the suit property was formerly described as Freehold Register Volume 44 Folio 2 Mbuya Hill, Kampala and it formerly belonged to an Asian named Gangaram Teckchand.

On 25th may 1954, Saraswati Gangaram, the widow to Gangaram Teckchand, who upon her husband's death had been registered as proprietor of the suit land, leased part of the suit land comprised of Plots 69 and 70 Mbuya Hill, to Uganda Consolidated Properties Ltd for a period of 49 years from 1st may 1954. On or about the 19th of November 1980, Uganda Consolidated Properties Ltd transferred Plot 70 Mbuya Hill to Uganda Advisory Board of trade and on 7th December 1988. Uganda Advisory Board of trade was dissolved by Uganda Advisory Decree (now repealed).

The statute vested all assets, liabilities, functions and any other responsibilities falling under the former Uganda Advisory Board of trade in the Government of Uganda under the ministry responsible for Commerce. In September 1995, the government, through the Uganda Land Commission divided Plot 70 Mbuya Hill into 10 Plots and offered them to the civil servants, who were in occupation, under the Civil Servants Pool Houses Sales Scheme.

The offer to take up the said pool houses was taken up by the 2nd, 3rd, 4th, 5th, 8th, and 9th respondents and leases in respect of the said Plots were granted to the said respondents by the Uganda Land Commission in 1996 and certificates of title were processed by Uganda Land Commission in respect of the said leases. The 3rd, 7th and 10th respondents subsequently acquired their interests from John Ssimbwa, M. Nakasijia and Betty Kemirembe respectively.

The late Charles James Mark Kamoga and the 2nd appellant, claiming to be descendants of the late Gangaram Teckchand instituted High Court Civil Suit No. 1183 of 1997 against the respondents and the Uganda Land Commission, seeking declaration that they were the lawful owners of the suit property. The $1^{st}$ appellant and the $2^{nd}$ appellant, together with the Uganda Land Commission entered a consent judgment and decree dated 26th October 2001 in which the 1st respondent and Uganda Land Commission consented that the appellants were the lawful owners of the suit property.

Six months after entering the consent judgment, the $2nd$ to $10th$ respondents started the process of setting aside the consent judgment and decree, which process went up to this Court. Following the decision of this Court, the 1st respondent filed an application in the High Court vide Miscellaneous Application No. 1018 of 2015 to set aside the consent judgment and decree. Before the application was heard, Justice Bashaija, J ordered the 1st respondent to file a suit so that the issues relating to fraud are determined. One of the issues that arose in that application was whether the application to set aside the consent decree was res judicata. The Court held that the dismissal of a suit on technicalities or preliminary points not based on the merits of the case did not give rise to the doctrine of res judicata. The appellants did not appeal against this decision.

Following that decision, the 1st respondent filed a suit and the appellants filed a written statement of defence in HCCS No. 450 of 2016. The plaint in that suit was subsequently amended to indicate the addition of the $2nd$ to $10th$ respondents. When HCCS No. 450 of 2016 came up for hearing, the appellants raised a preliminary objection that the suit was res judicata and it was dismissed on ground that it had been conclusively determined in Miscellaneous Application No. 1018 of 2015 and was not res judicata.

The appellants, were dissatisfied with the decision of the High Court and so they appealed to the Court of Appeal. The Court of Appeal found no merit in the appeal and dismissed it and ordered that High Court Civil Suit No. 450 of 2016 be set down for hearing for the determination of the issue of fraud. The appellants were dissatisfied with the decision and orders of the Court of Appeal hence this appeal on the grounds already stated in this judgment.

## **Representation.**

At the hearing of the appeal, the appellants were represented by learned Counsel Mr. Hudson Ssegamwenge. The 2nd, 4th, 6th, 8th and 9th respondents were represented by learned Counsel Mr. Ali Siraji and Ms. Stella Nakato. The 1st respondent was represented by Mr. George Kalemera, learned Commissioner Civil Litigation and Ms. Jacqueline Amusogut, learned State Attorney. The 3rd, 5th, 7th and 10th respondents were represented by Mr. Joseph Banoba

#### **Appellants' submissions**

#### Ground 1

Counsel for the appellants submitted that the learned Justices of the Court of Appeal failed to re-evaluate the evidence on record and wrongly held that High Court Civil Suit No. 450 of 2016 was not res judicata. Counsel relied on section 7 of the Civil Procedure Act and the case of Mansuklal Ramji Karia & Anor Vs. Attorney General & 2 Others SCCA No. 20 of 2002, where this court laid down conditions that have to be satisfied where the issue of res judicata arises; (1) that there have to be a former suit or issue decided by a competent court; (2) that the matter in dispute in the former suit between parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; (3) that the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title.

Counsel submitted that parties in both Civil Suit No. 1183 of 1997 and Civil Suit No. 450 of 2016 were the same parties who litigated under the same title (FRV 306 Folio 20 and FRV 314 Folio 13 formerly FRV 44 Folio 2 Mbuya Hill) and that the matter was decided by competent courts. Counsel argued that a consent judgment was entered into between the appellants and the $1^{st}$ respondent where in it was agreed that the $1^{st}$ respondent wrongly and unlawfully granted leases to the $2nd - 10th$ respondents. That this matter was heard and determined by this Court which confirmed the consent judgment. Counsel submitted that the learned Justices of the Court of Appeal were wrong to hold that the decision of this Court did not conclusively determine the issues pertaining fraud and that the same ought to be determined by filing the proper pleadings. Counsel prayed that this ground be allowed.

## Ground 2

Counsel submitted that Civil Suit No. 450 of 2016 was brought after 43 years when the cause of action arose and that it was therefore time barred as per section 5 of the Limitation Act that limits actions for recovery of land to 12 years. Counsel submitted that the learned Justices of the Court of Appeal misdirected themselves when they found that Civil Suit No. 450 of 2016 was filed on the basis of the High Court Decision by virtue of section 98 of the Civil Procedure Act and section 33 of the Judicature Act.

### 1st Respondent's submissions

#### Ground 1

Counsel submitted that the learned Justices of the Court of Appeal rightly held that HCCS No. 450 of 2016 is not res judicata because the former suits did not decide the merits of the case. Counsel argued that this Court's decision in Civil Appeal No. 8 of 2004 merely determined the points of law in respect to the forum and procedure but never determined the substantive issues of the alleged fraud.

Further counsel submitted that Civil Suit No. 1183 of 1997 did not determine the interests of the parties in the subject matter either. Counsel argued that the main dispute between the parties is ownership of the suit property and allegations of fraud which were neither determined by the High Court nor the Supreme Court.

Counsel submitted that the appellants are estopped from raising the issue of res judicata because it was determined by High Court in Miscellaneous Application No. 1018 of 2015 and the appellants did not appeal against that decision.

# Ground 2

Counsel submitted that HCCS No. 450 of 2016 was filed on orders of the High Court in Miscellaneous Application No. 1018 of 2015. Counsel submitted that Court has discretion under section 98 of the Civil Procedure Act to make order that it may deem fit to meet the ends of justice.

Counsel argued that computation of limitation commenced on 5th February 2016 when court ordered the respondents to institute a suit in which they would have an opportunity to adduce evidence of fraud. That HCCS No. 450 of 2016 was instituted on 21st December 2017 which is within the 12 years' limitation period as per section 5 of the Limitation Act. $\&$ Counsel prayed that this court finds no merit in the appeal and be dismissed with costs.

# 2nd, 4th, 6th, 8th and 9th respondents' submissions

# Ground 1

Counsel submitted that HCCS No. 450 of 2016 is not rejudicated because both the Court of Appeal in Civil Appeal No. 72 of 2002 and this Court in Civil Appeal No. 8 of 2004 did not conclusively determine the issues pertaining to fraud. Counsel submitted that the Court of Appeal rightly found that its judgment in Civil Appeal No. 72 of 2002 did not close the chapter of litigation between the parties over the consent judgment (page 108 of the Record of Appeal).

# Ground 2

Counsel submitted that HCCS No. 450 of 2016 was filed on the orders of the court which exercised its discretion under section 98 of the Civil Procedure Act. Counsel submitted that the learned Justices of the Court of Appeal re-evaluated the evidence on record properly and rightly found that the suit was not time barred. Counsel prayed that the court to uphold the decision of the Court of Appeal and dismiss the appeal with costs.

# $3rd$ , $5th$ , $7th$ and $10th$ respondents' submissions.

## Ground 1

Counsel submitted that decision of this court in Civil Appeal No. 8 of 2004 only dealt with the technicalities but not the substantive issues of the suit.

Counsel raised three preliminary points of law that (1) the appellants misrepresented themselves to obtain consent judgment (2) the 1st appellant's name does not correspond with the names in Electoral Commission Register and (3) the respondents were not granted a fair hearing.

Counsel submitted that the consent judgment was executed on misrepresentation of the appellant having stated that he was the biological son to the late Gangaram Teckchand the proprietor of the suit property whereas not. Counsel submitted that the consent judgment was obtained illegally and courts cannot enforce such illegality as was held in the cases of Macula International Ltd Vs. His Eminence Cardinal Nsubuga & Anor SCCA No. 4 of 1981 and Active Automobile Spares Ltd Vs. Crane Bank & Rajesh Pakesh, SCCA No. 21 of 2001.

Counsel submitted that the respondents were not heard before the execution of the consent judgment. Counsel submitted that the consent judgment was entered into by the 1st Q respondent and the Uganda Land Commission without the participation of the 3rd, 5th, 7th and 10th respondents. Counsel argued that the respondents were deprived of their right to fair hearing as guaranteed under Article 28(1) of the Constitution. Counsel prayed Court to dismiss the appeal and order for trial of Civil Suit No. 450 of 2016.

#### Appellants' submission in rejoinder

Counsel submitted that a consent judgment is a judgment on merit once endorsed by court. Counsel submitted that the consent judgment in question was upheld by both the Court of Appeal and this Court and it was therefore a judgment on merit. Further, Counsel submitted that this Court determined the issue of fraud in its judgment (pages 310-312) of the Record of Appeal.

Counsel submitted that a court does not have jurisdiction to enlarge time where it is provided by statute except in instances where the exceptions are provided by the Limitation Act itself. Counsel relied on J. Hannington Wasswa & Anor Vs. Maria Onyango Ochola & Others SCCA No. 3 of 1992, where this court held inter alia that; "it is a firm principle that the inherent powers of the court do not extend to altering a statutory period of limitation, except as the statute may provide for extending the period."

Counsel submitted that the 3rd, 5th, 7th and 10th respondents' cross appeal is not sustainable because the Preliminary points of law raised contest the consent judgment rather than part of the Court of Appeal Judgment where the cross appeal should arise.

## **Consideration of the appeal.**

This is a second appeal and the duty of a second appellate Court was long settled in various decisions of this Court. In the case of Tito Buhingiro Vs. Uganda SCCA No. 8 of 2014. it was stated, "it is trite law that as a second appellate court, we are not expected to reevaluate the evidence or question the concurrent findings of fact by the High Court and Court of Appeal. However, where it is shown that they did not evaluate or reevaluate the evidence or where they are proved to be manifestly wrong on findings of fact, the court is obliged to do so and to ensure that justice is properly and timely served." See also Kifamunte Henry Vs. Uganda SCCA No. 10 of 1997.

I shall proceed to resolve the grounds raised in the appeal, bearing the above principles in mind.

# Ground 1

The complaint on this ground was that the learned Justices of the Court of Appeal erred in law when they held that Civil Suit No. 450 of 2016 is not res judicata. Counsel for the appellants submitted that this Court pronounced itself in this matter in Civil Appeal No. 8 $R$ of 2004.

The Black's Law Dictionary 8th Edn defines res judicata as *an affirmative defence barring* the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit.

The Black's Law Dictionary (supra) states three essential elements of res judicata to include $(1)$ an earlier decision on the same issue $(2)$ a final judgment on the merits and $(3)$ the involvement of the same parties or parties in privity with the original parties.

The doctrine of res judicata is set out in section 7 of the Civil Procedure Act as follows: -

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been *subsequently raised, and has been heard and finally decided by that court.*"

In Mansukhlal Ramji Karia & Anor Vs. Attorney General & 2 Others SCCA No. 20 of 2020, this court stated that the above provision of the law indicates minimum conditions for res judicata to be satisfied; (1) there have to be a former suit or issue decided by a competent court, $(2)$ the matter in dispute in the former suit between parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar and $(3)$ the parties in the former suit should be the same under whom they or any of them claim, litigating under the same title.

From the above res judicate means that a matter that has been finally determined by a court of competent jurisdiction cannot be re-litigated by the same parties or their privities in a later suit. This means that a judgment in a prior suit bars any subsequent suits based on the same cause of action. The purpose of the doctrine is to provide finality to litigation and to protect parties from being aggrieved by the same matter twice.

I have carefully read the Record of Appeal and considered the submissions of all Counsel. and I find that; firstly, this Court in Civil Appeal No. 8 of 2004 determined different issues from those raised in Civil Suit No. 450 of 2016. The matter for consideration is the allegation of fraud. Civil Appeal No. 8 of 2004, Court determined the following issues (page 113 of the Record of Appeal): - $\mathscr{R}$

*The learned justices of appeal erred in law and fact in holding: -*

- 1. That the trial judge had no powers to review a consent judgment entered by the Registrar of the High Court - 2. That the appellants were not aggrieved parties - 3. That the consent judgment could not be reviewed or varied

Secondly, I accept counsel for the appellant submissions that a consent judgment is a judgment of Court once endorsed by court and it is therefore a final judgment. However, the said consent judgment was entered upon agreement by only two (2) parties to it. It is clear on record that the respondents upon discovery of the fact that the appellants had misrepresented themselves to be descendants of the late Gangaram Teckchand, they applied for review on allegations of fraud.

Thirdly, it is clear that the consent judgment in question which is the subject of contention was entered into between the 1st respondent and the Uganda Land Commission. The 2nd- $10th$ respondents were not involved in the negotiations and it cannot be concluded that the same was reached between all the parties to Civil Suit No. 450 of 2016. The first paragraph of the consent agreement (page 76 of the Record of Appeal) states; "*Following discussions* between the plaintiffs and the $1$ st and $2$ nd defendants the said parties have agreed that the case between them be settled and judgment be entered for the plaintiffs against the $1st$ and $2^{nd}$ defendants..."

I am therefore satisfied that Civil Suit No. 450 of 2016 is not res judicata. The issue for determination by court is fraud.

In Kampala Bottlers Ltd Vs. Damanico (U) Ltd Civil Appeal No. 22 of 1992, Wambuzi, CJ as he then was observed that; "Further, I think it is generally accepted that fraud must be proved strictly, the burden being heavier than on a balance of probabilities generally applied in civil matters." See also Fredrick Zaabwe Vs. Orient Bank Ltd & 5 others Civil Appeal No. 4 of 2006.

It is trite law that allegations fraud are of a serious nature and it is required by law to be specifically pleaded and strictly proved. I do not agree with counsel for the appellants that the question of fraud was determined by this Court. This court could not have delved into determining the issue of fraud when it was not one of the grounds of the appeal as already reproduced in this judgment.

It has to be pointed out that Article 44 (c) is instructive. It provides: $-$

"Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—

$(a)$ ...

$(b)\dots$

$(d)$ ...."

Also Article 28(1) of the Constitution provides: -

"In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law."

From the above provisions of the Constitution, this Court is empowered to make appropriate orders to have the $2nd$ -10th respondents heard to meet the ends of justice.

So ground 1 fails.

#### Ground 2

The complaint in this ground was that the learned Justices of the Court of Appeal erred in law when they held that Civil Suit No. 450 of 2016 is not time barred.

Counsel for the appellants submitted that Civil Suit No. 450 of 2016 was instituted after 43 years outside the limitation period of 12 years provided for under section 5 of the Limitation Act.

Section 5 of the Limitation Act provides: -

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."

In the instant case, according to the Record of Appeal, the consent judgment was entered into in 2001. It is also shown that the $2^{nd}$ -10th respondents filed Civil Application No. 162 of 2002 to set aside the consent judgment a year after the consent judgment was executed. It is clear therefore that, the cause of action arose in 2001 when the consent judgment was entered. That was the time the limitation period started running. The respondents started the litigation process of recovering their land in or about one year after the cause of action arose. The subsequent applications and appeals resulted until the judgment of this court in $\mathbb{Z}$ 2008 and thereafter the decision and orders of the High Court in Miscellaneous Application No. 1018 of 2015 in 2018. The High Court directed that a suit be filed to address the issue of fraud. The delay and long process of litigation in courts of law cannot be attributed to the respondents to their detriment. The ends of justice demand that justice must not only be done but also be seen to be done and in order to meet the ends justice in the instant case. Civil Suit No. 450 of 2016 must be heard and determined on its merits.

#### So ground 2 fails too

Before I take leave of this matter, I hasten to state that counsel for the 3rd, 5th, 7th and 10th respondents filed a notice of cross appeal and raised three grounds in regard to illegalities in the consent judgment. I have already discussed the issue that the respondents were not accorded a fair hearing when the consent judgment was entered without having been heard. The issue of consanguinity under the Succession Act is a matter that requires a full-fledged trial. It can be best determined under a proper and full trial which this court, at this stage is not empowered to delve into.

In the result, I find no merit in the appeal and I would dismiss it in the following terms: -

a) Appeal dismissed and I uphold the judgment and orders of the Court of Appeal.

- b) The Civil Suit No. 450 of 2016 should be fixed and heard expeditiously in the High Court. - c) Each party shall bear its own costs.

#### Decision of the Court.

Since all the other members of the Coram, Hon. Justice Tibatemwa-Ekirikubinza, Hon. Justice Chibita, Hon. Justice Musoke, Hon. Justice Madrama concur with the lead judgment, the appeal is dismissed in the terms stated therein.

Dated at Kampala this ....................................

Glmendel

**Mwondha Justice of the Supreme Court**

Judgment delivered as denoted by He Hon. Justicias & the Afreguner $\frac{1}{102}$ loge

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: MWONDHA, TIBATEMWA-EKIRIKUBINZA, CHIBITA, MUSOKE, MADRAMA, JJ. SCJ

### CIVIL APPEAL NO. 01 OF 2022

#### **BETWEEN**

## 1. THE ESTATE OF THE LATE **CHARLES JAMES MARK KAMOGA** 2. JAMES KIMALA:::::::::::::::::::::::::::::::::::

$15$

$10$

#### AND

- 1. ATTORNEY GENERAL - 2. MUGABO PETER BAGONZA - 3. LEE SUNG - 4. PATRICK OKWARE OKILANGOLE - 5. ANN KATABARWA LEMA NORAH **:::::::::::::::::RESPONDENTS** - 6. J. K SEWANYANA - 7. YUSUF AHMED - 8. EDITH BAINOMUGISHA - 9. SILVER OJAKOL - 25 10. JOATHAM KAPASI KAKAMA

(An appeal arising from the judgment and orders of the Court of Appeal Civil Appeal No. 192 of 2019 at Kampala, before Buteera, DCJ, Cheborion, Musota, JJA dated 25th November, 2021.)

$30$

## JUDGMENT OF TIBATEMWA-EKIRIKUBINZA, JSC.

I have had the benefit of reading the judgment of my learned sister, Hon. Justice Faith Mwondha, JSC. I agree with her decision that the appeal be dismissed.

I also agree with her order as to costs.

Dated at Kampala this .................................... 35

Lusaleme.

HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

$\mathsf{S}$

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

## (CORAM: MWONDHA, TIBATEMWA-EKIRIKUBINZA, CHIBITA, MUSOKE, MADRAMA, JJSC.)

### CIVIL APPEAL NO: 01 OF 2022

#### **BETWEEN**

1. THE ESTATE OF THE LATE JAMES MARK KAMOGA

2. JAMES KIMALA ::::::::::::::::::::::::::::::::::: AND

ATTORNEY GENERAL & 9 ORS :::::::::::::::::::::::::::::::::::

(Appeal from the decision of the Court of Appeal [Buteera, DJC, Cheborion and Musota, JJA,] in Civil Appeal No. 192 of 2019 dated 25th November 2021)

### **IUDGMENT OF CHIBITA, ISC**

I have had the benefit of reading in draft the judgment prepared by my learned sister, Hon. Justice Mwondha, JSC and I agree with her reasoning and her conclusions that this appeal be dismissed.

I also agree with the orders she has proposed.

Dated at Kampala this ....................................

**IUSTICE OF THE SUPREME COURT**

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 01 OF 2022

## 1. THE ESTATE OF THE LATE **JAMES MARK KAMOGA**

2. JAMES KIMALA:::::::::::::::::::::::::::::::::::

## **VERSUS**

- 1. ATTORNEY GENERAL - 2. MUGABO PETER BAGONZA - 3. LEE SUNG - 4. PATRICK OKWARE OKILANGOLE - 5. ANN KATABARWA LEMA NORAH - **6. J. K SEWANYANA** - 7. YUSUF AHMED - **8. EDITH BAINOMUGISHA**

## 9. SILVER OJAKOL

## 10. JOATHAM KAPASI KAKAMA:::::::::::::::::::::::::::::::::

(Appeal from the decision of the Court of Appeal (Buteera, DCJ and Cheborion and Musota, JJA) in Civil Appeal No. 192 of 2019 dated 25th November, 2021)

## HON. LADY JUSTICE FAITH MWONDHA, JSC **CORAM:** HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA -**EKIRIKUBINZA, JSC** HON. MR. JUSTICE MIKE CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, JSC

### JUDGMENT OF ELIZABETH MUSOKE, JSC

I have had the benefit of reading the judgment of my learned sister Mwondha, JSC. I concur with her conclusion that the appeal be dismissed, and also with the other orders she has proposed.

In my view, the fact that the High Court (Bashaija, J), in Miscellaneous Application No. 1018 of 2015, set aside the consent judgment in High Court

Civil Suit No. 1183 of 1997, upon which the appellants' plea of res judicata is founded, meant that the consent judgment is now non-existent and cannot form the basis of a successful plea of res judicata. The failure by the appellants to appeal against Bashaija, J's decision confirmed it as final and binding, regardless of any debate or criticism that may be levied against the reasoning upon which the decision was based.

As regards the issue of whether High Court Civil Suit No. 450 of 2016 was time barred, I noted that Bashaija, J, in his decision, permitted the respondents to file that suit within one week from the date of his decision in Miscellaneous Application No. 1018 of 2015. Therefore, reckoning of time had to be done in terms of the timelines permitted by Bashaija, J, especially since the appellants did not appeal against his decision, and not from the time of the original cause of action. This was the conclusion of the Court of Appeal, and I agree with it.

I would accordingly dismiss the appeal and make the orders that Mwondha, JSC proposes.

$\Lambda$ cf day of.. Dated at Kampala this .............. Elizabeth Musoke

Justice of the Supreme Court

## THE REPUBLIC OF UGANDA.

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: MWONDHA, TIBATEMWA - EKIRIKUBINZA, CHIBITA, MUSOKE, & **MADRAMA, JJSC)**

## CIVIL APPEAL NO. 01 OF 2022

1. THE ESTATE OF THE LATE CHARLES JAMES KAMOGA 2. JAMES KIMALA} ...................................

**VFRSUS**

- 1. ATTORNEY GENERAL - 2. MUGABO PETER BAGONZA} - 3. LEE SUNG - 4. PATRICK OKWARE OKILANGOLE - 5. ANN KATABARWA LEMA NOAH} - 6. J. K. SEWANYANA} - 7. YUSUF AHMED} - 8. EDITH BAINOMUGISHA - 9. SILVER OJAKOL - 10. JOATHAM KAPASI KAKAMA} ...................................

[An appeal from the decision of the Court of Appeal at Kampala before: Hon. Justices: Buteera, DCJ, Cheborion, and Musota, JJA dated 25th November 2021 in Civil Appeal No.192 of 2019]

## JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC

I have read in draft the judgment of my learned sister Mwondha, JSC.

I agree with the facts and legal principles she has set out. I am in agreement with her judgment and the orders she has proposed.

$|st|$ day of $\underline{\text{Feb}}$ 2024 Dated at Kampala the 30 Christopher Madrama Izama

**Justice of the Supreme Court**

$\mathbf{1}$

$\mathsf{S}$