Wairugala and Others v Attorney General (Civil Appeal No. 103 of 2019) [2023] UGCA 54 (15 February 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL No. 103 of 2019 (ARISING OUT OF HCCS No. 544 OF 2003)

#### **CORAM** $\mathsf{S}$ Hon. Mr Justice Richard Buteera, DCJ Hon. Lady Justice Catherine Bamugemereire, JA Hon. Mr. Justice Stephen Musota, JA

#### FRED WAIRUGALA & ORS:::::::::::::::::::::::::::::::::::: 10 VERSUS

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: (Appeal from the ruling and orders of Musa Ssekaana, J in HCCS No. 544 of 2003 dated 30<sup>th</sup> August 2018 at High Court- Civil Division).

#### **JUDGMENT OF CATHERINE BAMUGEMEREIRE JA**

This is an appeal against the decision of Musa Ssekaana J in which he dismissed an application to reinstate High Court Civil Suit No. 544 of 2003 and failed to determine the outstanding claims against the respondent.

#### **BACKGROUND**

The brief background to this appeal is that the appellants are former employees of Internal Security Organisation (ISO) who sued the respondent in HCCS No. 5444 of 2003 for unlawful 25 termination of employment and sought among other things payment of outstanding terminal benefits, gratuity and statutory allowance amounting to UGX $3,720,501,903/$ = (**Three Billion** Seven hundred twenty million Five Hundred One thousand **Nine hundred Three shillings**), payments in lieu of termination 30 notice, general damages, interest, costs of the suit, among others. When the matter came up for hearing, the parties agreed to enter a settlement in respect of which the court endorsed two consent

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Judgements on 11th May 2OO4 arrd 29th June 2OL2, respectively. The admitted claim dated 11tt' May 2OO4 was paid in instalments over a long period, the last instalment being paid in May 2017.

5 This appeal evolves from an application in which counsel for the appellants moved the trial court to reinstate HCCS No. 544 of 2OO3 claiming that the matter was never concluded to its finality. On hearing the application, the learned trial Judge dismissed it on grounds that the matter was consented to and closed in 2OL2. Being dissatisfied, the appellants lodged this appeal with two grounds as stated in the Memorandum of Appeal below; 10

# Grounds of Appeal '

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- 1. The learned trial Judge erred in law in failing to properly evduate the evidence on record and thereby holding that this matter was closed with consent of the parties dated 29th June 2OI-2 and the later judgment of Justice Kabiito dated 13th February 20 15. - 2. The learned trial Judge erred in law in failing to properly evaluate the evidence on record thereby holding that the Appellants are professional litigants who want to cheat government by claiming colossal sums of money.

## Representation

The appellant was represented by counsel from Messrs ORTUS and Co while the respondent was represented by learned Principal State Attorney Kodoli Wanyama from the Chambers of the Attorney General. 25

'

#### The Appellant's Case

Ground No. 1: The learned trial Judge erred in law in failing to properly evaluate the evidence on record and thereby holding that this matter was closed with consent of the $\mathsf{S}$ parties dated 29<sup>th</sup> June 2012 and the later judgment of Justice Kabiito dated 13<sup>th</sup> February 2015.

- It was counsel's submission that HCCS No. 544 of 2003 was a representative suit through High Court Miscellaneous Application 10 No. 113 of 2003 in which a substantial part of the appellant's claim was admitted by the respondent and the parties were given time to work out a consent. Counsel submitted that the parties on their own free will made a partial settlement for UGX $1,174,080,574/$ = (One Billion One Hundred Seventy-Four 15 **Eighty Thousand Five Hundred** Seventy-four **Million shillings),** which was duly endorsed as the first consent in the lower court on $11$ <sup>th</sup> May 2004. - Counsel for the appellants submitted that the respondent committed to pay off the agreed sum as and when it became $20$ available and the matter was set down for proof of the remaining $27$ <sup>th</sup>March 2012, the issues. Counsel submitted that on appellant's counsel informed the court that the appellants had agreed to the respondent's proposal for a (second) settlement and the trial court entered judgment in favour of the appellants, 25 subject to preparation of a formal consent order. Counsel averred that the second settlement in HCCS No.544 of 2003 which was duly endorsed by the trial court on 29<sup>th</sup>June 2012 for UGX

# $242,220,439/$ = (Two Hundred Forty Two million Two Hundred Twenty Thousand Four Hundred Thirty Nine shillings).

It was counsel's argument that there was no express provision indicating that the second consent was the full and final settlement of the appellants' outstanding claim in HCCS No.544 $\mathsf{S}$ of 2003 and that the trial judge erroneously relied on extrinsic evidence to imply that the original suit was closed on 29<sup>th</sup> June 2012 by consent. He cited **Attorney General & another v James** Mark Kamoga & another; SCCA No.08 of 2004, where Mulenga, JSC held that; "Unlike judgments in uncontested 10 cases, consent judgments are treated as fresh agreements..." Counsel also relied on General Industries (U) Ltd v Non-Performing Assets Recovery Trust; S. C. C. A. No. 05 of 1998 for the proposition that; "the main rationale behind that exclusion rule in section 91 is stated in Phipson On Evidence 15 (10<sup>TH</sup> Ed pg. At pg. 720 paragraph 1782), to be; "that when the parties have deliberately put their agreement into writing it is conclusively presumed that they intend the writing to form a full and final settlement of their intention, and one which should be placed beyond the reach of future controversy, bad faith or $20$ treacherous memory; the rule is founded on a presumption that what is written in the contract reflects fully what the parties agreed to be bound by. It seeks to protect those agreed terms from unwarranted alteration and unnecessary dispute."

Counsel faulted the learned trial Judge accusing the appellants $25$ of applying to reinstate a matter without setting aside the consent judgment. His argument was that there was no need to set aside the consent judgment since the parties on their own

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<sup>t</sup> free will agreed to enter a partial settlement in respect of which the court endorsed a consent judgment on lltt' May 2OO4 and 29th June 2012. He added that the application to reinstate was in regard to the outstanding contentious claim in HCCS No.113 of 2003.

Counsel further submitted that Dr Kagoro Kaijamurubi's case was tried separately before Justice Benjamin Kabiito therefore the learned trial Judge erred when he relied on the proceedings before Justice Benjamin Kabiito to find that the matter was 10 closed with consent of parties on 29th June 2012. lt was counsel's submission that Dr. Kagoro Kaijamurubi elected to prosecute his claim separately and therefore his matter was not the full and final settlement of the appellant's claim.

Counsel invited this honourable court to find that the learned 1s trial Judge's finding that this matter was closed with consent of the parties on 2gthJune 2Ol2 was based on speculation and conjecture, which resulted into a miscarriage of Justice to the appellants. He prayed that this court allows Ground No. 1.

Ground No. 2: The learned trial judge erred in law in failing to 20 properly evaluate the evidence on record thereby holding that the appellants are professional litigants who want to cheat government by claiming colossal sums of money.

Counsel defended the appellant's claim. He was critical of the trial judge for finding that the appellants had the intention to zs defraud the state when they instructed their lawyers to fix the matter for mention. He added that the appellants had a legitimate expectation guaranteed by Article 28 (1) of the Constitution.

He argued that when the appellants instructed their lawyers to fix the matter for mention before the Hon. Mr. Justice Musa Ssekaana they acted in good faith and fought for their right to the outstanding contentious claims in the trial and to bring the s matter to an expeditious conclusion. Counsel submitted that the appellants as former employees of ISO between the years L987- 2OO3 were entitled to their outstanding terminal benefits as contained in Article 25,4 of the Constitution, the Security Organisations Act, Cap.3OS, and the Security Organisations 10 (Terms & Conditions of Senricef Regulations, 2OOO.

It was counsel's submission that the appellants had a legitimate cause to bring the matter into its conclusion. It was counsel's contention that in concluding that the appellants were taking court for granted by using the case to continue getting money 1s from the government the trial Judge caused a miscarriage of justice to the appellants. Counsel invited this court to allow the appeal.

### The Respondent's Case

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Counsel for the respondent opted to argue Grounds No. | & <sup>2</sup> 20 jointly. He submitted that HCCS No. 544 of 2OO3 was <sup>a</sup> representative suit and the appellants were represented by one counsel. Counsel argued that it is trite that parties are bound by the consent of their counsel and are thus estopped from denying their counsel's actions in this case. He cited Hiram v Kassam 2s (1952) 19 EACA 131 where court held that;

> "... Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the

> > 6

<sup>a</sup> proceedings or action and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collision or by an agreement contrary to the policy of the court or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of the material facts or in general for a reason which would enable the court to set aside an agreement."

It was counsel's submission that the finding of the trial Judge that the matter was closed with the consent of the parties on 29th June 2Ol2 was the most appropriate decision in the circumstances.

Counsel asserted that the said decision was a confirmation that the trial Judge properly evaluated all the materials before him and came to the conclusion that there was no outstanding claim since the mater had been fully concluded. Counsel fu,rther argued that there was no miscarriage of justice occasioned by the ruling of the trial court dismissing the application to reinstate

Counsel averred that this appeal is misconceived, frivolous, vexatious and without merit and it should be dismissed with costs. 20

HCCS No. 544 of 2003.

In rejoinder, counsel for the appellants reiterated his earlier submissions but added that the terms and conditions of the second consent were clear and there was no express provision ' zs indicating that the second consent was a full and final settlement of the appellant's outstanding claim in HCCS No. 544 of 2003.

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# Decision of the Court

We have carefully considered the evidence on record, the submissions of both counsel and the law and authorities cited. This being a first appeal, this court is obliged under rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions to reappraise the evidence and draw inferences of fact. This duty was well expounded in Kifamunte Henry v Uganda SCCA No. 1O of L997 to this end:

"The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial Judge. The appellate court must then make up its'olt'n mind not disregarding the judgment appealed from, but carefully weighing and considering it..."

We shall bear the above principles in mind as I resolve the grounds of appeal in this case. This appeal is based on two grounds, which I shall resolve jointly. 15

- 1. Ground No. 1: The learned trial Judge erred in law in failing to properly evaluate the evidence on record and thereby holding that this matter was closed with consent of the parties dated 29th June 2OL2 and the later Judgment of Justice Kabiito dated 13u February 20 15. - 2. Ground No. 2: The learned trial Judge erred in law in f,ailing to properly evaluate the evidence on record thereby holding that the Appellants are professional litigants who want to cheat government by claiming colossal sums of money.

!

The case for the appellant is that there was no express provision in the consent judgments indicating that there was full and final settlement of the appellants' claims. The respondent on the other hand argues that the matter was closed with the consent of the parties.

Before we conclude this matter, we shall make reference to the two consent judgments entered into by the parties and the Judgment of Justice Kabiito dated 13th February 2015.

As ascertained from the court record, the lirst Consent Judgment was entered into on the llth May 2OO4 before Yorokamu Bamwine J (as he then was) in the presence of John Matovu, counsel for the plaintiffs and Phillip Mwaka, counsel for the defendant. It was agreed as follows;

- a) That Judgment be and is hereby entered agains[ tt're defendant for a sum of Shs L,l7 4,O8O,57 4 / : . <sup>t</sup> - b) That the plaintiffs shall prove the balance of their claim at the hearine in court (Emphasis is mine).

c) The costs shall await the conclusion of this case.

On 27th March\_20L2, during the court hearing, Herbert Dusabe represented the 28 plaintiffs while Kodoli Wanyama represented the Attorney General. 20

Dusabe submitted that there were altogether 28 plaintiffs, 24 of the plaintiffs had agreed to the defendant's proposal. However, he was not in touch with the 3 others and that t had written protesting the Attorney General's proposal. He prayed for <sup>a</sup>

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consent order to be entered for the 24 platntiffs, interest and costs of the suit.

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Court entered judgment for the 24 plaintiffs with interest at court rate and costs of the suit. On the s€une day, Mr. Dusabe prayed for judgment for the 3 plaintiffs which court granted and entered in the same terms as the 24 platntiffs.

On 1lth April 2OL2, Dusabe indicated to court that the othet 27 plaintiffs have accepted the calculation and are waiting for the duly signed order. He added that the additional amount claimed by Mr. Kagoro is in the region of UGX1, 500,000.

Court noted., "... Judgment has already been entered for the 27 plaintiffs the defendan t. That position is ed. A consent order shall be prepared by the parties and placed before the Deputy Registrar, civil division, for sealing purposes. The file shall be forwarded to the Deputy Registrar for re-allocation purposes, to enable the remaining plaintiff, Mr. Kagoro

Kaijamurubi, prove his claims against the defendant as by law established., unless the course of the parties decides otherwise."

- On 29th June 2OL2, another consent Judgment was entered in the presence of Herbert Dusabe Murego for the plaintiffs and Wanyama Kodoli for the defendarrt settling a claim for payment of terminal benefits. Judgment was entered for the plaintiffs in the amount of UGX 242,22O,439f =. Interest was set at court rate and costs of the suit were provided for. 20 - It should be noted that in the first consent dated 1ltt' May 2OO4, Judgment was entered for the appellants for a sum of UGX 1,L74,O8O,5741= and in the second paragraph (b) it was noted 25

that the plaintiffs would prove the balance of their claim at a hearing.

As observed from the court record, the hearing of the matter commenced on $27<sup>th</sup>$ March 2012. Court entered judgment for the 24 plaintiffs with interest at court rate and costs of the suit. On $\mathsf{S}$ the same day, Dusabe prayed for judgment for the 3 plaintiffs which court entered in the same terms as the 24 plaintiffs. On 11<sup>th</sup> April 2012, Dusabe indicated to court that the 27 plaintiffs had accepted the calculation and were waiting for the duly signed order. On the same day, the court record showed that; $10$ "Judgment has already been entered for the 27 plaintiffs against the defendant. That position is reconfirmed. A consent order shall be prepared by the parties and placed before the Deputy Registrar, civil division, for sealing purposes." (Emphasis is mine)

A consent judgment once endorsed by the court becomes binding 15 on all the parties and they are therefore estopped from asserting different positions from the stipulated agreement. It should be noted that the need for contractual interpretation arises when the parties disagree about the meaning of a clause(s) in their contracts, in this case being the consent settlements. 20

In interpreting the consent settlements, this Court's role is to establish the meaning the parties assigned to the agreement by primarily considering the language employed in the two consents. In the persuasive English case of **Wood v Capita Insurance**

Services Ltd [2017] UKSC 24, Lord Hodge made the following $\approx$ 25 observation:

"The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning."

## In Attorney General & Anor v James Mark Kamoga & another SCCA No. 8 of 2OO4 Mulenga JSC; - , 10

"... It is a well-settled principle, therefore, that a cogsent decree has to be upheld unless it is violated by reason that would enable a 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..."

We have considered the two consent settlements in their entirety and in my interpretation, this matter was concluded with the second. consent settlement dated 29t". June 2o^12. We found no reason to fault the trial Judge's decision. The trial Judge acted correctly when he dismissed the application to reinstate HCCS No. 544 of 2OO3 since it had already been determined to its finality. 20 25

We therefore find that this appeal lacks merit and is hereby dismissed with costs to the respondents.

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Dated at Kampala this.................................... $\color{red}....2023$

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# **Catherine Bamugemereire** Justice of Appeal

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 103 OF 2019

(Arising from the judgment of the High Court Civil Division before Musa Sekaana, J in Civil Suit No. 544 of 2003)

Coram: [Buteera, DCJ; Bamugemereire, Musota JJA]

#### FRED WAIRUGALA & ORS **APPELLANT** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

### **VERSUS**

**RESPONDENTS** ATTORNEY GENERAL $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

## JUDGMENT OF BUTEERA, DCJ

I have had the benefit of reading in draft the judgment by my learned sister Bamugemereire, JA.

I agree with it and the orders proposed in that Judgment. As Musota JA, also agrees the appeal is dismissed with costs in the terms proposed by Bamugemereire, JA.

Dated this .................................... $\ldots \ldots \ldots \ldots \ldots \ldots 2023.$

R. Buteera DEPUTY CHIEF JUSTICE

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 103 OF 2019

(Arising from the judgment of the High Court Civil Division before Musa Sekaana, J in Civil Suit No. 544 of 2003)

FRED WAIRUGALA & ORS:::::::::::::::::::::::::::::::::::: **VERSUS**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ

HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

## JUDGMENT OF STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgment by my sister Hon. Justice Catherine Bamugemereire, JA.

I agree with her analysis, conclusions and the orders she has proposed.

Dated this 15 day of Jehnen 2023

Danta Turi?

**Stephen Musota** JUSTICE OF APPEAL