Uganda Air Cargo Corporation Limited v Moses Kirunda and Others (Civil Appeal 208 of 2015) [2025] UGCA 168 (9 May 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

(Coram: Dr. Asa Mugengi, Musa Ssekaana, & Stetla Alibateese, JJA)

#### CIVIL APPEAL 2O8 OF 2015

# (Arlsine from Misc. APPlication 385 of 2O13 Arisine from Hteh Court Kampala HCCS 169 of 2OO1l

# UGANDA luR CARGO CORPORATIOIT LIMITBp ============= APPELLANT VERSUS

- 1. MOSES KIRUITDA - 2. ROGATIIYO MUGISHA - 3. JACK CALNAN - 4. ADMINSTRATOR OF ESTATE OF JOSEPH ITYAKANA - 5. DICK BWIBALE KABALA - 6. BUMALI MIIWANQ/\ ============================= RESPONDENTS

### JUDGMENT OF DR. ASA MUGENYI. JA

#### INTRODUCTION

1 This is an appeal arising from the decision of the High Court by Steven Musota J. delivered on 24tt September 2OI4 where the court dismissed an application to set aside a consent judgment entered into by the parties which awarded Shs. 99,000,000 and US\$ 854,214 to the respondents. The appellant claimed that the Attorney General who represented them did not have instructions to enter a consent judgment. The appellant being aggrieved by the ruling of the trial judge appealed against it.

### BACKGROUND

2 The respondents were employees of the appellant. The appellant was listed arnong the institutions for privatisation under the Public Enterprise Reform and Divesture Statute 1993. The respondents filed HCCS 169 of 2001 seeking damages of Shs. 22g,671,596 and US\$ 854,214 forunlawful termination of their services. A default judgment which was entered against the appellant was set aside. The parties filed a consent judgment which awarded Shs 99,000,000 and US\$ 8S4,2L4 to the respondents. The appellant filed Miscellaneous Application 385 of 2Ol3 to set aside the consent judgment on the ground that the Attorney General did not have authority to enter the consent on its behalf. The application was dismissed by the High Court. The appellant being dissatisfied with the decision filed this aPPeal.

#### GROUNDS OF APPEAL

- The appellant raised the following grounds of appeal. 3 - 1) The learned trial Judge erred in law when he held that the Attorney General, being a representative in Court for the appellant (a government institution) could enter a consent judgment without the knowledge and instruction of the appellant's accounting officer. - 2) The learned trial Judge erred in law and fact when he held that, the Attorney General had futl instructions to represent the appellant in court, and hence had apparent authority to compromise all matters connected with this action, which included entering a consent judgment. - 3) The trial Judge erred in law and fact when he held that a consent judgment entered by a Judge cannot be easily set aside. - 4) The trial Judge erred in law and fact when he failed to evaluate evidence on record, thus coming to a wrong conclusion.

#### Representation

4 When the matter came up for hearing on 19th March 2025, the appellant was represented by Mr. Twalhat Ssebumpenje, while the respondent was represented by Mr. Richard Nsubuga and Ms Monica Namuli .

#### ANALYSIS AND DETERMINATION

5. This is an appeal from a decision of the High Court. The duty of a first appellate court is to re-appraise the evidence on record and draw its own inference. Rule 30(1) of the Judicature (Court of Appeal Rules) Directions SI 13-10 states that:

> "On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may:

- (a) Reappraise the evidence and draw inferences of fact ..." - The said duty was re-stated in Kifamunte Henry u Uganda, SCCA 10 of L997 as: "The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial Judge. The appellant court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

Taking the above into consideration, I shall continue to determine the appeal.

6. Both parties addressed grounds 1 and 2 together.

#### DETERMINATION OF GROUNDS 1 AND 2.

Ground 1. The learned trial Judge erred in law when he held that the Attorney General, being a representative in Court for the appellant (a government institution) could enter a congent Judgment without the knowledge and instnrction of the appellant's accounting ofllcer.

Ground 2. The learned trial Judge erred in law and fact when he held that the Attorney General had full instnrctlons to represent the appellant in court, and hence had apparent authority to compromise all matters connected with this action, whlch lncluded entering a consent Judgment

### a) Appellants submissions

- 7 Counsel for the appellant submitted that the High Court correctly relied on Attorney General u lJganda Land Commission, SCCA 8 of 2OO4 and Harani u Kasam, [19521 EACA 131 which provide the grounds of setting aside a consent. Counsel submitted that the trial Judge however misapplied the said authorities to the facts of the case. Counsel also cited Mohammed Aliblni u W. E Bukenga and another, Civiil Appeal 56 of 1996. The counsel submitted that in the instant case there was ignorance of material facts before the consent was entered into. - 8 Counsel for the appellant submitted that the Attorney General misrepresented from the beginning on its instructions from the appellant. He submitted that there was incompetence in the exercise of the instructions. The Attorney General was given instructions and all the detailed documents but it failed to file a defence in time and a default judgment was entered against the appellant. The said judgment was set aside. - g. Counsel for the appellant submitted further that the trial Judge ignored the evidence in the affidavit of Major Eria Nantarnu, the Corporation Secretary of the appellant which pointed to the fact that the Attorney General entered into a consent judgment without consultation of the appellant, acting by mistake and misapprehension of material facts. Counsel submitted that the affidavit showed that the consent was not signed by any of the appellant's senior officials. When the deponent consulted Ms. Robinah Rwakoojo, the Acting Director of Civil Litigation, he was informed that there were no instructions. Settlement of suits where the subject matter was above Shs. 20O,OO0O,OOO required to be approved by the Attorney General. There was no memorandum showing his approval of the settlement to enter into the said consent. The deponent stated that some of the claims settled were not in the respondents'terms and conditions of service. Others were in respect of claims where a crew was detained in Congo while

working for a company called L. C. Aviation. Counsel submitted that there was a supplementary affidavit by Major Charles Wacha Angula, the acting General Manager of the appellant that the claim of US\$ 854,214 in the consent judgement was relating to unlawful arrest and detention in Congo which was supposed to be paid by L. C. Aviation and the government of Congo. This evidence was not controverted. The State Attorney did not have material facts relevant to the case or acted in mistake. Counsel for the appellant submitted that the State Attorney entered a consent with the respondent making the appellant liable for claims it is not supposed to pay. The counsel submitted that the Acting General Manager did not admit to any liability.

# bl Respondent's submissions.

- 10. Counsel for the respondent submitted that the principles for setting aside a consent judgment/decree have been elucidated in several cases. He cited Attorney General and qnother u James Mark Kamoga and another, SCCA 8 of 2OO4 where Mulenga JSC relied on Hirani u Kassint (supra). They submitted that courts will normally not interfere with a consent judgment on the ground it is treated as a fresh contract entered by a party who are free to set their own terms. - 11. Counsel for the respondent submitted that it is not stated anywhere in the ruling by the judge who heard the application that the Attorney General could enter a consent judgment without the knowledge and instruction/ approval of the appellant's accounting officer. Counsel submitted that the Judge after considering the evidence on record made a finding that the Attorney General had been fully instructed by the appellant to prosecute Civil Suit 169 of 2001 and therefore had apparent authority to compromise the suit. Counsel for the respondent cited BM Technical Seruices u Francis X. Rugunda, ll999l KALR 821, which was followed in Lenina Kemigisha Mbambazi/ Starfish Limited u Jing Cheng International Trading Limited, MA 344 of 2OI2 where it was stated that:

"the court cannot set aside a consent judgment when there is nothing to show that counsel for the applicant has not entered into it without instructions. Furthermore, that even in cases where an advocate has no specific instructions to defend the suit, the position would not change so long as counsel is acting for a party in a case and his instructions have not been terminated, he has full control over the conduct of the trial and apparent authority to compromise all matters connected with the action."

The respondent submitted that the trial Judge found that" "The fact that the Attorneg General was instructed. and. giuen all documents and facts relating to the respond.ent's claim, he hadfull instntctions and apparent authoritg to compromise all matters connected. utiththis action." Counsel submitted that the appellants do not deny instructing the Attorney General to prosecute HCCS 169 of 2001 but only claimed not to have instructed the Attorney General to enter into a consent settlement in the above matter. They submitted that there is overwhelming evidence that the Attorney General had been instructed to defend the appellant which he did from 2OOl till October 2013 when he was served with a notice of change of instructions.

## Appellants submissions in rejoinder

12. In rejoinder, the counsel for appellant submitted that there is no proof from the letters, emails or any other authorization from the appellant to the Attorney General authorizing it to enter into a consent judgment on its behalf. The State Attorney did not have express authority to act on the appellant's behalf to enter a consent. Counsel submitted that it would set a dangerous precedent to put the fate of litigants in the hands of advocates who would enter consents irrespective of whether they had authority. Counsel for the appellant submitted that the appellant at all times communicated with the Attorney General in writing. There was no written authorization to enter into a consent. Counsel cited GeoJfrey Gatete and another u William Kgobe, Civil Appeal No. 7 of 2OO5, where a consent judgment was overturned because it had been entered into without the knowledge of another partner.

- 13. Counsel for the appellant also cited Betuco (u) Limited and another u Barclays Bank of Uganda, Civil Appeal No. 1 of 2017, where it was held that it is a well settled principle that a consent judgment has to be upheld unless it is vitiated by a reason that would enable a count to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. Counsel submitted that parties to a consent judgment are required by the court to appear personally to confirm the contents of a consent judgment. Courts also require companies to avail authorization in the form of resolutions or board minutes. Courts usually summon the controlling persons to confirm the contents of a judgment. - 14. Counsel for the appellant submitted that the appellant took a number of steps to defend the matter. These included the application to set aside a default judgment. It filed a written statement of defence to show that the respondents are not entitled to the claims in the plaints. The appellant filed a notice of change of instructions from the Attorney General to a private firm. It filed an application to set aside the consent judgment. It filed an Auditor General's report to show that the respondents are not entitled to the sums claimed. The appellant filed a letter dated 12th November 1997 confirming that the respondents received their full benefits. The counsel submitted that there is no way the State Attorney handling the matter would have an alternative position. The State Attorney proceeded to enter into the consent judgment without all the material facts touching the matter which was a mistake in the course of performing her duties.

# cl Analysis and determination

15. On 2"d June 2OIO, the parties executed a consent judgment. The appellant being dissatisfied with the consent filed an application seeking to set it aside. The main ground for setting aside the consent judgment was that Attorney General had no instructions and or authority to enter the said consent. The appellant contended that the actions of the State Attorney who signed for the Attorney General were tantamount to a collusion with the respondents. The court refused to set aside the consent resulting into this appeal.

- 16. The gist of the first two grounds of appeal revolve around the instructions to the Attorney General. The appellant contends that the Attorney General had no instructions to enter into a consent. The respondents contend that fact that the Attorney General had full instructions to represent the appellant in court, he had apparent authority to compromise the suit. - t7. Before I can delve into whether the Attorney General could enter a consent judgment on behalf of the appellant, I need to look at the grounds for setting aside a consent. In Harani u Kasam, ll952l EACA 131, the court considered following passage from "seaton on Judgments and Orders", Tth Edition Volume 1 page 124 which reads:

"Prima facie any order made in the presence and with a consent of counsel is binding on all parties to the proceedings or action and cannot be varied or discharged unless obtained by fraud, or collusion or by an agreement contrary to policy of court or if the consent was given without sufficient material facts or in misapprehension or ignorance of material facts or in general for a reason which would enable court to set aside an agreement."

ln Mohammed Alibhai u W. E Bukenya and arlother, Civil Appeal 56 of 1996, it was also stated as follows:

ult is well settled therefore that a consent decree has to be upheld unless it is vitiated by reason that would enable Court to set aside an agreement, such as fraud, mistake, misapprehension or contravention of court policy. This principle is on the premise that a consent decree is passed on terms of a new contract between the parties to the consent judgment. It is in light that I have to consider the consent decree in the instant case."

From the said authorities it is clear that a consent judgment maybe set aside if there is fraud, a mistake, collusion, misrepresentation or where the consent was given without sufficient material facts or in misapprehension or ignorance of material facts or in general for a reason which would enable court to set aside an agreement.

18. A consent agreement is a fresh agreement entered into by the parties. It sets new terms and conditions which binds the parties.ln Peter Mulira u Mitchel Cotts, CACA 15 of 2OO7, Kitumba JA stated;

> "The law regarding consent judgment is that parties to a Civil Suit are free to consent to a judgment. They may do so orally before a judge who then records the consent or they may do so in writing and affix their signatures on the consent. In that case still the Court has to sign that judgment. A consent judgment may not be set aside except for fraud, collusion or for ignorance of material facts."

The parties are free to consent to a judgment. There are some questions which arise when entering consents. Is a counsel a representative or agent of a party? Do parties entering consent extend to counsel represent them consenting on their behalf without the parties' consent? Would that not be misrepresentation? Can an agent bind the principal when he acts without authority and or in contravention of the interests of the principal? As we resolve these, maybe we will get a clearer picture on setting aside consents entered by counsel.

19. In B. M. Technical Seruices u Francis X Rugunda, (19991KALR 821, it was observed inter alia, that once counsel's instructions from client have not been terminated he or she has full control over the conduct of the trial and has apparent authority to compromise all matters connected with the actions including entering consent judgment. In Lenina Kemigi"slw Mbambazi/ Starfish Limited u Jing Cheng International Tlading Limited, MA 344 of 2OL2, it was stated that:

> "the court cannot set aside a consent judgment when there is nothing to show that counsel for the applicant has not entered into it without instructions. Furthermore, that even in cases where an advocate has no specific instructions to defend the suit, the position would not change so long as counsel is acting for a party in a case and his instructions have not been terminated, he has full control over the conduct of the trial and apparent authority to compromise all matters connected with the action."

The trial Judge in the application, which is the subject matter of this appeal, found that" "The fact that the Attorneg General utas instnrcted and giuen all doanments and facts relating to the respondent's claim, he had full instructions and apparent authoritg to compromise all matters conruected with this action." Therefore, he dismissed the application to set aside the consent judgment.

20. The above position seems to be different from the position in JosephRufus Bisase u Stephen Musisi Katabulq Miscellaneous Application 695 of 2018, where the court cited Regulation 2(1) of the Advocates (Professional Conduct) Regulations SI No. 267-2 which states that:

> "No advocates shall act for arly person unless he or she has received instructions from that person or his or her duly authorized agents."

The court held that "the instructions haue to be reduced in writing and in anA case tlrut such powers u)ere exercised in good faith. In this case, hou.teuer there u)as no notice of instntctions issued by the applicantto the said counsel." The Regulations aim to guide the professional conduct and etiquette of advocates. The court further stated that even if it were to be stated that he had the authority, under Regulation L2 it is stipulated that:

"Every advocate shall advise his or her clients in their best interest, and no advocate shall knowingly or recklessly encourage a client to enter into, oppose or continue any litigation, matter or other transaction in respect of which a reasonable advocate would advise that to do so would not be in the best interests of the client or would be an abuse of court process."

The Judge noted that"All in all, utithout a notice of instructions on record, it is not knoutn in uthich capacity the learned counsel has acted when he endorsed the consent purporting to act on his client's instructions." The said Regulations require an advocate to act in the best interests of the clients or and to enter into any Iitigation or matter, or transaction in their best interests. It is not in doubt that when the State Attorney entered into the consent, which was the subject of this appeal on behalf of the appellant it was not in the best interests of the latter. That is why it sought to set it aside. - 21. The Advocates (Professional Conduct and Etiquette) Regulations were passed on 9th March 2OL8. By the time B. M. Technical Seruices u Francis X Rugunda, (supra) was decided the Regulations were not passed. At the time the trial court dismissed the application to set aside the consent judgment on 24tt' September 2014, the subject matter of this appeal, the Regplations were also not in force. However, by the time, we are listening to this appeal, the Regulations are in force. - 22. In my view, the trial court in setting aside the consent ought to have determined whether the grounds that may vitiate an agreement were available to the facts of the application? That is, was there fraud, mistake, misapprehension or contravention of court policy as stated in Harani u Kasam (supra), or collusion and ignorance of material facts as stated in Peter Mulira u Mitchel Cotts (supra)? A counsel may have full or no instructions from a party or has the best interests of his or her clients but acts under a mistake or misrepresentation, or fraudulently or in contravention of court policy. Does a counsel having full instructions absolve him from acting fraudulently or by mistake? I do not think SO - 23. In ground 1, the appellant contended that the Attorney General could not enter a consent judgment without the knowledge and instruction of the appellant's accounting officer. Where a counsel does not have full instructions, he may act out of ignorance of material facts. The affidavit of Major Charles Wacha Angula, the acting General Manager of the appellant shows that the claim of US\$ 854,214 in the consent judgement was relating to unlawful arrest and detention in Congo which was supposed to be paid by L. C. Aviation and the government of Congo. This evidence was not controverted. The appellant submitted that some of the claims settled were not in the respondent's terms and conditions of service. Paragraph 9(i) of the plaint shows a tabulation of allowances which includes wrongful arrest and imprisonment in Zarre. Major Charles Wacha Angula also stated that the respondents were paid part of the terminal benefits. The consent did take that into consideration. Therefore, the State Attorney when he entered

the consent he was ignorant of material facts and acted under a mistake. He ought to have determined what amount was not paid and what was payable in consultation with the appellant. That information is within the purview of the accounting officer of the appellant. Without such information, or instructions from the accounting officer the State Attorney acted under a mistake. Those claims arising from the wrong full arrest in Congo by LC Aviation and Congo of Government may go to the jurisdiction of the trial court. A mistake can be a ground for setting aside an agreement and hence a consent. It is not clear why the mistakes by the State Attorney were ignored irrespective of whether he had full instructions or not.

- 23.. The affidavit of Major Eria Nantarnu, the Corporation Secretary of the appellant pointed to the fact that the State Attorney entered into a consent judgment without consultation of the Attorney General. When the deponent consulted Ms. Robinah Rwakoojo, the Acting Director of Civil Litigation, he was informed that there were no instructions to enter the consent. Settlement of suits where the subject matter was above Shs. 200,0000,000 required to be approved by the Attorney General. There was no memorandum showing his approval of the settlement to enter into the said consent. The said evidence was not controverted. If the Attorney General did not give his approtal, then the State Attorney who signed the consent did not have authority to do so. This was a misrepresentation of facts. Black's Laut Dictionary, 9th Edition, page 1O91 defines ,misrepresentation' as " 1. The act of making a false or misleading assertion about something, usually, with the intent to deceive." Misrepresentation is a ground for setting aside an agreement and in essence a consent. The State Attorney misrepresented the fact that the Attorney General had approved the consent, which was not true. Such misrepresentation cannot be allowed to stand. - 24. Furthermore, I notice that the consent was not signed by any of the appellant's senior officials. A counsel is an agent of his or her client. A consent agreement is a fresh agreement entered into by the parties. Can an agent enter into a fresh

agreement without the involvement and consent of the principal and bind him? An agent can bind a principal when they have actual authority or apparent authority to act on the principal's behalf. Actual authority is where the principal has explicitly authorized the agent to enter the fresh agreement. In our case, counsel was authorized or instructed to represent the appellant but not to enter the consent. Apparent authority arises when a principal's actions lead a third party to reasonably believe that the agent has the authority to act, even if the principal did not explicitly grant it. Therefore, a lawyer who has received instructions to handle a matter may enter a consent under the guise of apparent authority though he was not specifically instructed to enter the consent. However, to set aside a consent entered into by a counsel without instruction depends on the circumstances leading to the consent. His actions may border on fraud, misrepresentation or collusion or any other grounds for setting aside a consent. I notice that the State Attorney did not consult the senior officers of the appellant, nor receive instructions in respect of the consent. She did not obtain approval from the Attorney General nor was there a memorandum to that effect. The subject matter involved being high i.e. Shs. 229,671,596 and US\$ 854,214, there was need for consultation between counsel and the accounting officer who is supposed to make payment. Counsel is expected to exercise due diligence, professionalism and act in the best interests of his client whether the Advocates (Professional Conduct and Etiquette) Regulations were passed or not. There is a court policy that requires that consent judgments should be signed by the parties and their counsel. This was not done in the consent judgment. The reason why the parties did not comply with the policy are not stated. When one considers the circumstances stated above, collusion between the respondent and the State Attorney who signed the consent cannot be ruled out. The State Attorney also failed to abide by court policy requiring the party also to sign the consent. It would be in the interest of justice that such a consent is set aside. The actual claims payable should be determined after listening to the evidence by court. A party should not hide under a technicality that a consent was signed

by the counsel when it is apparent that there were mistakes, misrepresentation, collusion and failure to abide by court policy.

25. In resolving grounds 1 and 2 where a counsel enters into a consent agreement, and grounds for setting aside an agreement are proved, it is irrelevant whether the counsel had full instructions. Where there are no instructions, a consent maybe set aside on the ground that the consent was entered by mistake or misrepresentation. This can also happen where a counsel has full instructions. It does not matter whether a counsel was acting in the best interest of the client as long as he or she is mistaken or misrepresents the client. In this case, the appellant has showed that when the consent was entered there were mistakes and misrepresentation of its interest. Therefore, grounds 1 and 2 of the appeal succeed.

## DETERMINATION OF GROUND 3

Ground 3. The learned trlal Judge erred ln law when he held that a Judgement entered by a Judge cannot be easily set aside.

#### a) The appellant's submissiolls.

21. Counsel for the appellant submitted that the trial Judge erred when he concluded that a consent entered by a judge cannot be set aside. Counsel quoted a section of the judgment where the court stated:

> "The consent Judgment was entered by the Judge after due consideration of the circumstances of the case. It was therefore done diligently. A decree was extracted and a judgment debtor promised but failed to pay. The judgment by the judge cannot be easily set aside. It should be noted that a notice of change of instructions was only made at a time of execution implying that there were instructions before."

The counsel submitted that the trial Judge failed to apply the evidence presented to him. He erroneously stated that the appellant admitted liability after judgment had been entered.

22. The counsel cited Harani u Kasam (supra) and Brooke Bond Leibig (T) Limited u Mallga (supra), where the courts laid down the principle for setting aside a consent judgment. He submitted that the cases did not differentiate between consent judgments entered by a Registrar and those entered by a Judge. Counsel for the appellant cited Peter Mulira u Mitchell Cotts, CACA 15 of 2OO7, where Kitumba J. stated:

> "The law regarding consent judgment is that parties to a civil suit are free to consent to a judgment. They may do so orally before a judge who then records the consent or they may do so in writing and affix their signatures on the consent. In that case still, the court has to sign the judgment. A consent judgement may not be set aside except for fraud, collusion, or for ignorance of material facts."

Counsel for the appellant submitted that the appellant was not present in court nor did its senior officials sign the consent. The trial Judge ought to have required their presence in court.

#### bl Respondent's submissions.

23. The counsel for the respondent admitted that the trial Judge stated that "the Judgment entered by the judge cannot easily be set aside." Counsel cited Peter Mulira u Mitchell Cotts (supra). He argued that a consent judgment is entered into freely by the parties without any input by the trial Judge apart from endorsing what the parties have agreed to. A consent judgment is a new and fresh contract hence it can only be set aside upon grounds used to set aside an ordinary contract which are fraud, collusion, or ignorance of material facts. He argued in the absence of the stated grounds a consent judgment cannot be tampered with by the court. Counsel also cited Attorney General and anotlrcr u James Mark Kamoga (supra). Counsel submitted that the trial Judge did not make an error of fact or law when he made a finding that a judgment entered into by a judge could not easily be set aside.

# Appellants submissions in reJoinder

24. The counsel for the appellant submitted the trial Judge ought to have found that the procedure into entering the consent judgment was marred with illegalities. The appellant being disenfranchised from being part of the process in procuring the consent judgment was right to apply to set it aside'

## c) Analysis and determination

25. The appellant seems to be aggrieved by the statement by the trial Judge that a consent judgment entered by a Judge cannot be easily set aside. [n my view, this is a question of semantics. Whereas I agree that a consent judgment by a trial Judge cannot be easily set aside. It can still be set aside if it meets the requirements of setting aside an agreement i.e. misrepresentation, mistake, collusion, ignorance of material facts. Therefore, discussing such a ground serves no purpose apart from an academic purpose. Since I have resolved grounds 1 and 2, addressing this ground would be superfluous. I therefore strike it out.

## DETERMINATION OF GROUND 4.

Ground 4. The learned trtal Judge erred ln law when he fatled to evaluate the evidence on record, thus comlng to a wrong conclusion.

## a) The appellant's submissiotls-

26. The counsel for the appellant submitted that the trial Judge did not evaluate properly the evidence presented before him. This included the claims by the respondents involved sums which has already been paid. The claims included payments that were not within the respondent's terms and conditions of service like gratuity. The claims in dollars accrued in the Republic of Congo to be paid by its government and L. C. Aviation. The counsel for the appellant listed the evidence

presented to the trial Judge which he claimed the latter ignored and instead imported his evidence that the appellant admitted liability.

# bl Respondent's submissions.

27. The counsel for the respondent submitted that there is overwhelming evidence on the record to show that the Attorney General had been instructed to prosecute HCCS 169 of 2OOl on behalf of the appellants which he did until 2Ol3 when instructions were given to other lawyers. The trial Judge rightly held that the appellants had not proved any grounds for setting aside a consent judgment.

## c) Submissions in rejoinder

28. The counsel for the appellant submitted that the trial Judge failed to evaluate the numerous correspondences that show that the appellant would never have entered into the consent judgment. By disregarding the said evidence, the trial Judge entered into a wrong judgment.

# dl Analysis and determination

29. Ground 4 states that "The learned trial judge erred in law when he failed to evaluate the evidence on record, thus coming to a wrong conclusion." The said ground is too general and is not concise. It does not show which evidence on record the judge did not evaluate which offended the appellant. It offends Rule 86(1) of the Judicature (Court of Appeal Rules) Directions which reads:

# "85. Contents of memorandum of appeal

1) A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongfully decided, and the nature of the order which it is proposed to ask the Court to make..."

ln Celtel Ugand.a limited. u Kantngi Susan, CACA 0073 of 2013, the impugned ground was framed as follows:

> 'The Learned Trial Judge erred in law and fact when they failed to evaluate the evidence on record and thereby arrived at a wrong conclusion."

The ground in the above appeal is similar to ground 4 in the appeal which is before us. Remmy Kasule JA, in striking out the ground, cited Ranchobhai shiuabhaiPatel Ltd andAnor u Henry Wambuga& anor, cA 06 of 2o17,where a similar ground was found to be

> ,,...too general and does not specify in what way and in which specific areas the learned Justices of appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned justices of appeal..."

Similarly, I find ground 4 is too general and does not specify the evidence which the appellant is seeking to challenge. I therefore strike out ground 4 of the appeal.

24. I note that the appellant was successful in grounds 1 and 2 of the appeal which would have the effect of overturning the decision of the trial Judge. Taking that into consideration, the appeal is allowed with costs to the appellant for the appeal and for the application in the lower court. The consent judgment is set aside and main suit should be heard. The civil suit was filed in 2OOL. This appeal resulting from an application is determined in 2025. I note and apologise for the delay in hearing the above suit, the application and the appeal. I make a further order that the main suit by urgently and expeditiously heard in the lower court in the interest of justice.

Dated at Kampala 1!di day of l]tm^f 2025.

\*n \

DR. ASA MUGENYI JUSTICE OF APPEAL

pg. 18

#### THE REPUBLIC OF UGANDA

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

(Coram: Dr. Asa Mugenyi, Musa Ssekaana, & Stella Alibateese, JJA)

#### CIVIL APPEAL 208 OF 2015

#### (Arising from Misc. Application 385 of 2013)

#### Arising from High Court Kampala HCCS 169 of 2001)

# **UGANDA AIR CARGO CORPORATION LIMITED ========== APPELLANT VERSUS**

- 1. MOSES KIRUNDA - 2. ROGATINO MUGISHA - 3. JACK CALNAN - 4. ADMINSTRATOR OF ESTATE OF JOSEPH NYAKANA - 5. DICK BWEBALE KABALA - 6. BUMALI MUWANGA ========================== RESPONDENTS

#### **JUDGMENT OF STELLA ALIBATEESE, JA**

I have had the benefit of reading in draft the Judgement of Hon. Justice Dr. Asa Mugenyi. I concur with the judgement and the orders proposed.

Dated and delivered at Kampala this $9 \frac{15}{0}$ of $\mathcal{M}$ 2025

Albateese

**STELLA ALIBATEESE** JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **CIVIL APPEAL NO:208 OF 2015** (ARISING FROM HIGH COURT CIVIL SUIT NO: 169 OF 2001)

# **UGANDA AIR CARGO CORPORATION LIMITED::::::::::::APPELLANT**

#### **VERSUS**

#### 1. MOSES KIRUNDA

- 2. ROGATINO MIGISHA - 3. JACK CALNAN - 4. ADMINSTRATOR OF THE ESTATE OF THE LATE JOSEPH **NYAKAANA** - 5. DICK BWEBALE KABALA - 6. BUMALI MUWANGA ::::::::::::::::::::::::::::::::::: $20$

# **JUDGEMENT OF SSEKAANA MUSA, JA**

I have had the benefit of reading the lead Judgment of His Lordship Hon. $25$ Justice Dr. Asa Mugenyi and I concur with the same.

Dated at Kampala this.................................... May $2025.$ $\dots$ day of..

gang.m

**SSÉKAANA MUSA JUSTICE OF APPEAL**

$30$

$\mathsf{S}$

$10$

$15$