Attorney General and Another v Konyen and 9 Others (HCT-00-LD-MA 963 of 2016) [2024] UGHCLD 223 (23 September 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. HCT-00-LD-MA-0963-2016 (ARISING FROM CIVIL SUIT NO.46 OF 2012)

1. ATTORNEY GENERAL

2. THE DEPARTED ASIANS PROPERTY CUSTODIAN BOARD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

1. KONYEN JOSEPH 2. MUGISA ALEX 3. KAMURALI FRANK 4. BENON MPEIRWE 5. KAFEERO RONALD 6. MWERERI LUKEMAN 7. BAHINGUZA JUSTINE 8. MARGARET MUTESI 9. NAMYALO SAFINAH

10. TWEGATTE NDEEBA WOMEN'S GROUP::::::::::: RESPONDENTS

BEFORE JUDGE BERNARD NAMANYA

RULING

1. The applicants seek an order to set aside a judgment on admission entered against them by the court on the 12 July 2016 in Civil Suit No.46 of 2012. The terms of the judgment on admission, include an order against the Attorney General and the Departed Asians Property Custodian Board to pay a sum of Ushs 7,400,000,000 (Uganda shillings seven billion four hundred million only) to the respondents as compensation for property comprised in Plots 135-141 Mbuya Hill, Esmail Road.

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- 2. The main reason upon which the application is based is that the said judgment on admission was made without the approval of the Attorney General. - 3. The application is supported by the affidavit of Mr. Denis Bireije, Ag. Director, Civil Litigation in the Ministry of Justice & Constitutional Affairs, sworn on the 28 July 2016; and the supplementary affidavit of Ms. Kiyingi Josephine, Principal State Attorney, sworn on the 7 August 2018. The respondents filed their affidavit in reply through Ms. Agnes Mbabazi Kabwisho sworn on the 13 September 2016. - 4. At the hearing of the application, the applicants were represented by Ms. Jackie Amusugut, State Attorney while the respondents were represented by Mr. Kasaija Robert of M/s Kasaija & Partners Advocates. - 5. The main issue for determination is whether the applicants have satisfied the conditions for setting aside the judgment on admission entered against them by the court on the 12 July 2016 in Civil Suit No.46 of 2012. - 6. The respondents contend that this court cannot set aside the judgment on admission because it is functus officio, and that the applicants should appeal if they are dissatisfied. - 7. I do not agree with the respondents' contention because the law stipulates that any person considering himself or herself aggrieved by a Judgment or Ruling of the court, may apply for a review of the Judgment or Ruling, to the court which passed the decision. See Section 82 of the Civil Procedure Act; Order 46 rule 1 of the Civil Procedure Rules; and FX Mubukuke v. UEB, High Court Miscellaneous Application No.98 of 2005.


8. Section 82 of the Civil Procedure Act provides that:

"82. Review

Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit."

9. Order 46 rule 1 of the Civil Procedures Rules provides that:

"1. Application for review of judgment.

(1) Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being

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respondent, he or she can present to the appellate court the case on which he or she applies for the review."

10. Order 13 rule 6 of the Civil Procedure Rules provides that:

"6. Judgment on admissions.

Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon the application make such order, or give such judgment, as the court may think just."

- 11. The position of the law is that before entering a judgment on admission, court must be satisfied that the admission by a party is clear, plain, obvious and unambiguous. The admission must leave no room for doubt. If a case involves complicated questions, the court should decline to exercise its discretion to enter judgment on admission. Nevia Company Ltd v. Biersdorf AG (Court of Appeal Civil Appeal No. 172 of 2014) [2019] UGCA 355 (per Percy Night Tuhaise, JA). - 12. On the 12 July 2016, when the impugned judgment on admission was entered by the court, the Attorney General was represented by Ms. Kiyingi Josephine, Principal State Attorney. According to the record of proceedings, Ms. Kiyingi informed court as follows: "We have seen the Government valuer's report dated 2/2/16 and the [Attorney General] is prepared to concede to the value returned being Shs. 7,400,000,000/- (seven billion, four hundred million shillings only)." However, the very same officials of the Attorney General's Chambers deponed affidavits to this court stating that

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the admission of liability of 7.4 billion shillings was made without express authority of the Attorney General:

- a). On the 7 March 2018, the said Ms. Kiyingi Josephine, Principal State Attorney, deponed an affidavit stating that, at the time she admitted Government liability before the court, she did not have express authority from the Attorney General to do so. - b). The affidavit in support of the application by Mr. Denis Bireije, Ag. Director of Civil Litigation, Ministry of Justice & Constitutional Affairs, also states that the judgment on admission was made without authorisation of the Attorney General. - 13. I have reviewed two documents that Ms. Kiyingi Josephine supposedly relied on to admit Government liability in the court proceedings that took place on the 12 July 2016: a) a letter dated 6 October 2014 addressed to the Solicitor General by Mr. Sam S. Male, Chairman, Divestiture Committee/ Ag. Executive Secretary; and a valuation report of the suit property dated 2 February 2016 prepared by the Ministry of Lands, Housing and Urban Development. However, none of these documents state that the Government has admitted to pay the respondents the sum of Ushs 7.4 billion. - 14. Having regard to the Court of Appeal case of Nevia Company Ltd v. Biersdorf (supra), it is my conclusion that the clear and unambiguous admission of the Government to pay the respondents the sum of Ushs 7.4 billion is lacking. I am satisfied with the evidence adduced by the Attorney General that he did not authorise the admission of Government liability to pay compensation of Ushs 7.4 billion to the respondents. - 15. Accordingly, there is sufficient reason under the law, to review and set aside the judgment on admission entered by the court on the 12 July 2016.

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- 16. In conclusion therefore, I order as follows: - a) The judgment on admission entered by the court in Civil Suit No.46 of 2012 on the 12 July 2016, against the Attorney General and the Departed Asians Property Custodian Board, requiring Government to pay Ushs 7,400,000,000 (Uganda shillings seven billion four hundred million only) to the respondents, is reviewed and set aside, under Section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules. - b) Each party shall bear its own costs.

IT IS SO ORDERED.

BERNARD NAMANYA JUDGE 23 September 2024

Delivered by E-mail & on ECCMIS:

| Counsel for the applicants: | director.litigation@justice.go.ug | |------------------------------|-----------------------------------| | Counsel for the respondents: | kasaijarlaw@gmail.com |