Tumuhimbise Asafu and Another v Bogere Paul (Civil Revision No. 34 of 2023) [2025] UGHCCD 63 (24 March 2025)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

# [CIVIL DIVISION]

## CIVIL REVISION NO.34 OF 2023

[Arising from Civil Suit No. 836 Of 2020]

I. TUMUHIMBISE ASAFU

2. ASTON INTERNATIONAL LTD APPLICANTS/DEFENDANTS

### VERSUS

BOGERE PAUL RESPONDENT/PLAINTIFF

### BEFORE: HON. JUSTICE EMMANUEL BAGUMA

#### RULING

This application is by notice of motion under section 83(c) of the CPA, Order 48 rule 2 and Order 52 rule 2 of the CPR seeking for orders that; -

- a) The unendorsed consent dated 3'd April 2021 and proceedings arising from the same be set aside. - b) Costs of the application be provided for.

The application is supported by the affidavit of Tumuhimbise Asafu whose details are on record but briefly stated that; -

- l. The Respondent was the plaintiff in civil suit No. 836 of 2020 where a consent was entered into by the parties on the 3'd day of April 2021 for payment of a decretal sum amounting to UGX. 1 1,200,000/: to the Respondent. - 2. The Respondent went ahead and executed on the unendorsed consent to the detriment of the applicant. - 3. The applicant did not appear in court to confirm the contents ofthe purported consent. - 4. The Respondent received a sum of 15,000,000/= from the applicants but is silent about the same and doesn't mention it.

- 5. The Respondent's lawyer Mr. Edward Okumu received UCX. 19,000,000/: from the applicants for onward transmission to the Respondent but the same is not mentioned. - 6. On 22d September a warrant of arrest in execution was issued against the I " applicant for a sum of39,400,000/= wherein the applicant paid the respondent cash of UGX. 10,000,000/= in the presence of the trial Magistrate. - 7. I have been informed by my lawyers of M/S Wakabala & Co. Advocates which information I verily believe to be true that the said order was illegal as it did not posses a court seal as required by law and the trial Magistrate failed to exercise jurisdiction vested in it by issuing orders to execute on illegal document of consent and warrant of arrest. - 8. It is only fair that the order of the trial Magistrate issued in CS No. 836 of 2020 be revised and set aside together with the execution order.

In reply, the Respondent opposed the application and in an affidavit swom by Bogere Paul whose details are on record but briefly states that; -

- l. I instituted a summery suit against the applicants who were properly served, applied for leave to appear and defend but the application was dismissed. - 2. The applicant did not execute any illegal consent as alleged by the applicants and the applicants have not proven any grounds for revision' - 3. The application is an afterthought and an abuse ofcourt process.

## Representation

Counsel Wakabala Herbert represented the applicant while counsel Mulindwa Aminsi together with counsel Mbago Aquila Timothy represented the respondent.

At hearing parties agreed to argue 3 grounds to determine the revision to wit; -

- I. Ll/helher the unendorsed consent wos lawfully execuled? - 2. Whether execulion was lowful? - 3. Whether there are any remedies svailable to lhe parties?

However, counsel for the applicant in his written submissions tried to add another issue to the effect that; -

# The affitlovit in reply filed by the Responclenl after l5 days without leave of courl be struck oul with costs?

I have considered the circumstances of this case. The Respondent filed his affidavit in reply though outside the l5 days stipulated under the rules, it was before the date fixed for hearing and the same did not cause a miscarriage ofjustice to the applicant.

In the case of Nalional Enterprises Corporotion Vs Mukisa Foods COA Civil Appeal No.42 of l997,court held that denying a subject a hearing should be the last resort.

In the supreme court decision of Banco Arab Espanol Vs Bonk of Uganda <sup>1999</sup> UGSC No. l, court held that; -

# ,,the administration of justice should normally require that lhe substance of all disputes should be investigaled and decided on lheir merits and lapses or errors should not necessorily debar a litigant from pursuit of his rights".

Article 126 (2) (e) of the constitution provides for administration ofjustice without undue regard to technicalities.

It is my considered view that basing on the authorities cited above, the filing of an affidavit in reply after l5 days will not defeat the ends ofjustice and accordingly dismiss this objection.

I will now proceed to consider the revision on its own merit'

## Su bm issions bv both counsel.

## Issue No. I

# l{hether lhe unendorsetl consent was lawfully execaled?

Counsel for the applicant submitted that the consent based on by the trial Magistrate was not signed and endorsed by court. This made its execution illegal and irregular.

In reply counsel for the Respondent submitted that the applicants have not led evidence to prove that the execution was based on the consent order. He stated that when the applicant flled an application for leave to appear and defend and the same was dismissed, court proceeded to enter judgment in the summary suit and the execution proceeded on that decree and not on the alleged consent judgment.

He contended that the applicant has not proven the grounds for revision as stated under section 83 of the CPA and the trial Magistrate properly exercised the jurisdiction so vested in her.

## Issue No. 2

## Whether the execution was lawful?

Counsel for the applicants submitted that since the consent offends the provisions of the law, it is our prayer for court to find that the execution was unlawful and irregular.

In reply counsel for the Respondent submitted that the Respondent sued the Applicants under order 36 rule 3 of the CPR for recovery of 30,000,000/:. The applicants filed an application for leave to appear and defend which was dismissed and judgment entered against the applicants. The Respondents applied for the execution ofthe decree under order 22 rule 19. That the l" applicant during the course ofexecution paid 10,000,000/= and the balance of21,000,000/: is still due and this application is an afterthought.

## Issue No.3

## l{hether lhere ore any remedies availoble to the porties?

Counsel for the applicant submitted that the application remains unchallenged since the affidavit in reply was filed out of time without leave of court.

In reply, counsel for the Respondent prayed that the application together with its affidavit be rejected on grounds that it contains a lot of falsehoods and intended to mislead court.

### Determination of court.

#### Issue No. <sup>1</sup>

## ll/helher lhe unendorsed consent was lawfully execuled?

I have perused the lower court file and established that when the Applicants were sued under summery suit No. 836 of 2020, they filed application No. 665 of 2020 which was heard and dismissed. Then judgment was entered in the summary suit for 30,000,000/: at 80% interest per annum. The warrant in execution numbered EMA No. 186 of 2023 related to execution of the decree in CS No. 836 of 2020. There is nothing to suggest that the execution was arising from the consent as alleged by the applicants.

The applicants and the Respondents on an unknown date purported to execute a consent judgment which was never endorsed and sealed by court. The same cannot be taken to be a consent judgment that binds parties.

I accordingly find that execution did not arise from the consent.

However, it is the uncontroverted evidence of applicants in their affidavit in support ofthe application that they made part payment in satisfaction ofthe decree. It is there evidencethattherespondentreceived 15,000,000/=andalso 19,000,000/:werepaid to his lawyer/agent for onward transmission to the Respondent. it is also admitted by the Respondent that 10,000,000/= were paid by the Applicants before court. The respondent in his affidavit in reply did not mention anything about the part payment of 15,000,000/: and 19,000,000/= this amounts to a triable issue that warrants investigation by court.

In my view, the administration of justice in this particular case requires that the substance of all disputes in payments of the money should be investigated and the actual amount due be established in a full trial.

#### Issue No. 2

### Whether the execution was lawful

Since I have found that there were discrepancies in actual amount due, the execution was irregular.

### Issue No. 3

## l{hether there are any remedies available lo lhe parties?

This application succeeds in as far as there were discrepancies and irregularities in the actual amount due.

## Conclusion.

In the final result, this application succeeds with the following orders; -

- l. The judgment and decree in Civil Suit No. 836 of 2020 is hereby set aside. - 2. The taxation in TA No. 155 of 2022 and execution in EMA No. 186 of 2023 are hereby set aside. - 3. MA No. 665 of 2020 is hereby revised and the applicant is allowed unconditional leave to appear and defend CS No. 836 of2020. - 4. The applicants/defendants are given l5 days from the date of this ruling within which to file their defence. - 5. Civil suit No.836 of 2020 is hereby referred back to the Magistrate court for full trial before a different Magistrate. - 6. Considering the nature and circumstances of this revision, each party shall bear their own costs.

Dated, signed, sealed and delivered by email on this 24th day of March 2025'

E Baugma Judge.