Cherukut & Another v Tugonzaruhanga & 3 Others (Miscellaneous Application 84 of 2023) [2023] UGHC 469 (31 October 2023)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUKONO MISCELLANEOUS APPLICATION NO.84 OF 2023 ARISING FROM CIVIL SUIT NO.14 OF 2023 CHERUKUT TOSKIN AND ANOR:::::::::::::::::::::::APPLICANTS

VERSUS

TUGONZARUHANGA JOSEPH

AND 3 ORS::::::::::::::::::::::::::::::::::::

HON. LADY JUSTICE CHRISTINE KAAHWA

RULING

Introduction:

The Applicants brought this application by Notice of Motion under Section 33 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap71 Order 52 Rule 1 and 2 of the Civil Procedure Rules (CPR) SI 71-1 seeking orders that:

- 1. The Consent settlement and or order in Civil Suit No.14 of $2023$ be set aside. - 2. General damages to a tune of 50,000,000 Uganda shillings and interests thereon at an interest rate of 25% per annum from the date of ruling.

The Applicant lay down the ground of this Application on the Notice of motion as;

- 1. The Applicants are the 4^th and 6^th Defendants in Civil Suit No.14 of 2023 - 2. The $1^{st}$ Applicant is the Executive Secretary of the $2^{nd}$ Applicant. - 3. The 4^th Respondent is merely a nominal Respondent. - 4. The $1^{st}$ , $2^{nd}$ and $3^{rd}$ Respondents together with the $4^{th}$ Respondents wrongfully and illegally executed a Consent Settlement and or order purportedly binding the 2^nd Applicant. - 5. The $2^nd$ Respondent has never been appointed as the $2^nd$ Applicant's Executive Secretary and or authorized to execute any Consent Settlement and or order on behalf of the $2^{nd}$ Applicant. - 6. The 2^nd Applicant's Executive Secretary is appointed by the Board of trustees. - 7. The 2^nd Respondent wrongly and illegally held himself as the Executive Secretary of the 2^nd Applicant whereas not and went ahead and signed the Consent Settlement on behalf of the $2^{nd}$ Applicant. - 8. The 2^nd Applicant has never resolved to enter into a Consent Settlement with the 1^st Respondent in respect of Civil Suit No. 14 of 2023. - 9. That the Mediation Hearing Notice dated 4^th April 2023, from which the impugned consent arises was deliberately never served on the 6^th Defendant's Lawyers on record and on other Defendants in Civil Suit No.14 of 2023 apart from the 4^th Respondent.

- That the Consent Settlement was wrongly and illegally $10.$ negotiated and executed by unauthorized persons. - That the 2^nd Applicant will be prejudiced if the Consent $11.$ Settlement is enforced. - That this Application has been made without undue 12. delay. - That it is just, fair and equitable that the Consent 13. Judgment and or Settlement be set aside, ex debito justitiae.

The Applicants supported their Application by an affidavit deposed by CHERUKUT TOSKIN the 1^st Applicant and Executive Secretary of the $2^{nd}$ Applicant and states that,

That he is the 4^th Defendant and also the Executive Secretary of 2^nd Applicant (6^th Defendant in Civil Suit No.14 of 2023). That he has served in that position since 2019 and has never been lawfully removed from office to which he attached a copy of his appointment letter.

That the 3^rd Respondent through a Meeting held with some student leaders attempted to remove him from office which removal was blocked by the Permanent Secretary Ministry of Education and Sports through a letter dated 20^th March, 2023. That as a result of the improper removal from office by the 3^rd respondent and other student leaders, the Permanent Secretary Ministry of Education and Sports halted all the transaction on the 2^nd Respondent's Bank Account held with Stanbic Bank. The deponent stated that he is still the legally appointed Executive

Secretary of the $2^{nd}$ Applicant as stated on the plaint as well as the written statement of defence. That the appointment of the Executive Secretary is a preserve of the 2^nd Applicant's Board of Trustee as per her Constitution and that the Board of Trustee has never appointed the $2^{nd}$ Respondent as the $2^{nd}$ Applicant's Executive Secretary.

The Applicant was shocked when he learnt from his Lawyers that the Respondents purportedly attended a mediation session in respect of Civil Suit No.14 of 2023 in which they wrongfully and illegally executed a consent binding the 2^nd Respondents yet it was neither authorized or approved by the 2^nd Applicant. That worse still the mediation hearing Notices were never served on the $1^st$ Applicant in his own capacity as the Executive Secretary of the $2^{nd}$ Applicant, presumably that the $1^{st}$ applicant would have clarified that he is not agreeable to the consent terms. Additionally, all the other defendants save for the 4 Respondent were equally not served.

The Applicant imputes connivance in negotiating and executing the impugned consent and that upon learning of the said consent, the 1^st Applicant through a letter requested Court not to endorse it. It is again the Applicants' Affidavit evidence that the 3^rd Respondent was not authorized by the 2^nd Applicant to negotiate and enter into the said consent more so involving payment of money and yet the transactions of the 2^nd Applicant's account were halted by the Permanent Secretary Ministry of Education and Sports. The Applicants further state that conducting a forensic audit will unnecessarily burden the 2^nd

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Applicant whose Financial Report for 2022 were presented at her annual General meeting and were discussed.

The Applicants further state that the 2^nd Applicant's Financial Report will be presented at its Annual General Meeting in accordance with her Constitution. That the 3^rd Respondent violently grabbed accountability documents and a laptop from the Accounts Assistant, Noreen Mugimba and locked out office Secretary and staff from accessing the office to which the matter reported at Wandegeya Police Station Vide SD was Ref.91/27/03/2023. That setting aside the impugned consent will not prejudice the 4^th Respondent as it does not impose any burden on her and that there is no need for a Court Order for a settlement to be negotiated with the $1^st$ Respondent.

Finally, that the Application has been made without any reasonable delay and that it is just, fair and equitable that the consent judgment is set aside ex debito justitiae.

The Application was opposed by Respondents who chose to reply individually.

The 1^st Respondent, (Tugonza-Ruhanga) Joseph stated in paragraph $1(1)$ of his Affidavit in Support that he will raise two preliminary objections which include,

- a. The competence of the Application. - b. That the Affidavit in Support is incurably defective. - c. The Application by the $2^{nd}$ Applicant is a misrepresentation and that the actual Uganda National Students' Association

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has never instructed any lawyers to file any Application challenging the Consent it entered with the $1^st$ Respondent.

- d. That the 1^st Applicant be arrested and handed over to police and investigated for forgery and uttering false documents, perjury and subordination, fraud and misrepresentation. - e. That he has been advised by his Lawyers that this Application is barred in law and should be struck out with costs to 1^st Respondent as it lacks Merit.

The 1^st Respondent contended in paragraph 4 of his Affidavit in Reply that the $1^st$ applicant has never been appointed as the Executive Secretary of the 2^nd Applicant but was only appointed in 2019 as an acting Executive Secretary and Suspended on 17^th March, 2023. That the Permanent Secretary Ministry of Education and Sports and a none Member of the National Executive Committee has no authority to reverse a suspension of an employee of a private entity and to reprimand a leader or Director/Chairperson/Managing Director of a private entity. That the Permanent Secretary is being investigated by the IGG of corruption, misrepresentation of funds and abuse of office involving using the $2^nd$ applicant as a vessel to steal government funds in connivance with the $1^{st}$ Applicant.

That the said correspondences were written by the Permanent Secretary to protect the 1^st Applicant from being audited since she was also involved in many of the fraudulent and illegal transactions that have the audit queries. In reply to paragraph 5 of the Applicants' Affidavit in Support, the 1^st Respondent avers that the Permanent Secretary has no mandate to stop any

transactions on an Account of a private entity and that the purported stoppage was a downplay on the monies collected by the 1^st Applicant and never deposited on the Bank Account of the $2^nd$ Applicant yet all her monies have to be deposited into the Bank Account as per the Constitution.

That the $1^st$ applicant was still in an acting capacity at the time of filing the suit and shortly after the plaint and summons were served which raised a red flag, he was suspended and immediately reported to police which commenced investigations. That in reply to paragraph 7 of the affidavit in support, the appointment of the Executive Secretary is done by the Board of Trustee but only on recommendations and approval of the National Executive Committee. That the National Executive Committee informed the Board of Trustees about the Suspension of the 1^st Applicant and recommended and approved the appointment of the 2^nd Respondent as the Executive Secretary. That in further reply to paragraphs 7 and 8, the second Respondent is still in acting capacity as the Executive Secretary pending his final appointment by the Board of Trustees.

Paragraph 11 of the 1^st Respondent's Affidavit in Reply allude to the fact that the Consent Settlement binds the 2^nd Applicant since it was made by her Officers as opposed to the $1^st$ Applicant who was and still on suspension with several criminal charges including defrauding the 2^nd Applicant, forgery of documents and fraud. That in reply to paragraph 11 and 12 of the Affidavits in Support, the mediation hearing notices were served on all the Defendants and the 1^st Applicant could not receive them or be

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served as the Executive Secretary yet he was on suspension at that time, that the Consent between the 1^st Respondent and the $2^nd$ Applicant were on matters of principle.

The 1^st Respondent further contends in paragraph 15 of his reply that the consent was endorsed by court and has partially been executed by parties as agreed. That the right people executed the consent and that the National Executive Committee is an equivalent of the Board of Directors in a Private Company and that it was signed by the head of the National Executive Committee and the Acting Executive Secretary and the 2^nd Respondent after the 1^st Applicant had been summarily dismissed.

In reply to paragraphs 17 and 18 of the Affidavit in Support, conducting a forensic audit is very important as it is the only way through which the liability of $1^{st}$ and $2^{nd}$ Applicants can be ascertained since it has been recommended by police and the IGG, that it is only the 1^st Applicant and the Permanent Secretary who are avoiding having hide a way the previous Audit Reports from the members of the 2^nd Applicant in her AGM yet funds had been spent. That forensic Audit can always be done in the absence of accountability reports.

Under paragraph 19 of the 1^st Respondent's affidavit in reply, he states that the National Executive Committee is the brain and mind of the $2^{nd}$ Applicant led by her president or chairperson, that the $3^rd$ and $2^nd$ Respondents engaged him and his lawyers with a view of settling the case amicably having conceded about

some of the prayers in the plaint. That several pre-Mediation meetings were held to which the majority were agreeable that there was an issue of false accounting and misappropriation of funds estimated to be at a tune of Ug. Shs. $550,000,000/=$ (Uganda Shillings Five Hundred and Fifty Million). The Mediation arose from admissions from the $2^{\rm nd}$ and $3^{\rm rd}$ Respondents and parties agreed to have the matter resolved.

The 1^st Respondent under paragraph 26 of his Affidavit in Reply states that he has been advised by his Lawyers and which advise, he believes to be true that under the Constitution of the 2^nd Applicant, the National Executive Council Committee appoints service providers including Lawyers and makes standing orders. That in the interest of justice, this Application be dismissed with costs to the $1^{st}$ Respondent.

The 2^nd, 3^rd and 4^th Respondents also filed Affidavits in Reply which more or less allude to the same facts that Gem Advocates were instructed by the 1^st Applicant on behalf of the 2^nd Applicant to defend Civil Suit No.14 of 2023 and other averments which have been noted by this Court.

The Applicants filed an Affidavit in Rejoinder whose contents I have also taken into consideration.

Representation:

The Applicants were represented by Mr. Bazekutetta Derrick while the Respondents were represented by counsel Anthony from M/S Tumwebaze Emmanuel Advocates and Solicitors. The hearing was conducted and the parties file their written submissions, the Applicants filed while the Respondents did not furnish any written submissions in Court save for the affidavits in reply and the attachments thereto which were duly filed. I have considered the able submissions of Counsel for the Applicants and the aforementioned Affidavits in Reply and the attachments thereto in the course of resolution of the issues before this Court for determination.

In their Affidavits in Reply particularly that of the $1^st$ Respondent, he stated that he is intentioned to raise a preliminary point of law as to the competence of the Application, that the Affidavit in Support of this Application and that the Application by the 2^nd Respondent is a misrepresentation since she has not instructed any Lawyer to challenge the Consent, they entered with the 1^st Respondent.

I am alive to fact that the duty of this Court is to aid the parties to frame issues and to this end, the following will be the issues for determination.

- 1. Whether the Application is competent before this Court? - 2. Whether the Applicants' Affidavit in Support is incurably defective? - 3. Whether the Application by the $2^{nd}$ Applicant is a misrepresentation? - 4. Whether the Consent Judgement in HCCS No. 14 of 2023 a result of misrepresentation and was entered as misapprehension of facts and therefore illegal?

5. Whether there are any remedies available to the parties?

Resolution of the Issues:

Court takes note of the fact that the Respondents did not file any submissions in regards to the preliminary objections neither did they file submissions in respect of the substantive Application.

However, Court observes that, apart from merely stating that the Application is not competent before this Court, that the Affidavit in Support of the Application is incurably defective and that the 2^nd Applicant's Application is a misrepresentation. No evidence has been led to show the defect or misrepresentation.

Issue 4: Whether the Consent Judgement in HCCS No. 14 of 2023 was entered as a result of misrepresentation and misapprehension of facts and therefore illegal?

It was submitted by Counsel for the Applicant that the impugned Consent Judgment was not signed by the 1^st Applicant who is the duly appointed Executive Secretary of the 2^nd Applicant but was rather signed by the 2^nd Respondent a person who has never been appointed as such by the 2^nd Applicant and he referred this Court to paragraphs 3,6,7 and 15 of the Applicants' Affidavit in Support. Learned Counsel for the Applicant further submitted that consents must be signed by duly authorized persons and he relied on the case of The Kabaka of Buganda Vs Musiitwa Mulasa HCMA No.729 of 2019 where Court held that "signing of Consent is to be done by the parties or persons authorized to do the same".

It is the contention of Counsel for the Applicant that the 2^nd Respondent had not been authorized by the 2^nd Applicant to sign any Consent on her behalf and neither had he been appointed the Executive Secretary of the 2^nd Applicant and that the Court had a duty to satisfy itself with the legality of the documents before endorsing the Consent. That had the learned Registrar read the plaint and the written statement of defense, he would have realized that it was the $1^{\rm st}$ Applicant who is the Executive Secretary of the $2^{nd}$ Applicant not the $2^{nd}$ Respondent who wrongfully and illegally signed the Consent.

Counsel also contended that the Mediation proceedings which resulted into the impugned Consent and the subsequent endorsement were conducted without notifying the Applicants contrary to Court Policy. Counsel referred Court to paragraphs 9,10 and 11 of the 1^st Applicant's Affidavit in Support which allude to the fact that the Applicant was neither a party to negotiating the Consent nor was the said Consent authorized and approved by the 2^nd Applicant. That to add salt to the already decomposing injury, the Consent was endorsed in the absence of the 1^st and 2^nd Applicants, Counsel relied on the case of Abaasa Piston & Anor Vs Mbogo James & Others HCMA No.54 of 2023 to the effect that all parties must be present while a Consent is being endorsed.

Counsel for the Applicants further argued that the Respondents had a duty to notify Court that 1^st Applicant is the Executive Secretary of the 2^nd Applicant and not the 2^nd Respondent but chose to conceal this fact to Court hence the impugned Consent.

To this Counsel quoted the case of Edward Lubinga &Anor Vs Matovu Andrew & Ors HCMA No.2441 of 2021.

Counsel for the Applicants asserted that the 2^nd, 3^rd and 4^th Respondents have conceded to the Application and executed a consent which they attach on their respective Affidavits in Reply.

On the issue of remedies counsel for the Applicants prayed that the Consent Settlement and or Order in Civil Suit No. 14 of 2023 be set aside, prayed for general damages of Ug. Shs. $50,000,000/$ = [Uganda shillings Fifty Million] and interest of 25% per annum from the date of Ruling and costs.

Analysis and Determination:

It is settled law in our Jurisprudence that a Consent Judgement can be vitiated when it is proved that it was entered into without sufficient material facts or in misapprehension or in ignorance of material facts, or it was actuated by illegality, mistake, fraud in contravention of Court Policy as per the case of Attorney General & Uganda Land Commission versus James Mark Kamoga & James Kamala, SCCA No. 8 of 2004.

In the instant case, Counsel argues that the 2^nd Respondent (Ongwen Alfred) purportedly misrepresented himself as the acting Executive Secretary of the 2^nd Applicant and signed the Consent on behalf of the 2^nd Applicant yet he had no authority to do so. This Court had the opportunity to peruse the Applicant's Constitution and particularly Article 6:2.13 which is to the effect that the Executive Secretary shall be appointed by the Board of Trustees as recommended and approved by the NEC, this Article

further makes the Executive Secretary the Administrative Head and Accounting Officer of UNSA, on record there are also Annexure A which is a letter addressed to the 1^st Applicant appointing him as an Acting Executive Secretary dated 15^th March, 2019, Annexure 'B' is a letter from the Permanent Secretary Minister of Education and Sports to the effect that the actions of the Respondents were devoid of procedure and finally Annexure C which halts all transactions in the UNSA account.

The 1^st Respondent appears to put forth a very spirited fight, he attached several documents to prove his case against the Applicants to wit Annexture 'C' which is a letter suspending the 1^st Applicant from acting as the Executive Secretary dated 17^th March, 2023 and signed by the UNSA President Nasasira Bill Clinton who is the 3^rd Respondent in this matter, there is also Annexure 'D' letter dated 17^th March Appointing Mr. Ongwen Alfred as the Acting Executive Secretary of the $2^{nd}$ Applicant. Contrary to the assertions of the 1^st Respondent, Court notes that each of the Respondents filed separate affidavits in reply, to which the 2^nd Respondent acknowledged under paragraph 10 and 11 that he chaired a meeting which caused the suspension of the 1^st Applicant without seeking legal advice and was orchestrated by anger and also conceded that he negotiated the Consent in Civil Suit No.14 of 2023 on behalf of the 2^nd Applicant without authority.

The 2^nd Respondent who was purportedly appointed as the Acting Executive Secretary in a Meeting equally concedes that he did not know the procedure of appointing Executive secretary of the

2^nd Applicant and he signed the Consent Settlement without authorization of the $2^{nd}$ Applicant, so does the $3^{rd}$ & $4^{th}$ Respondents.

From the evidence on record, it goes without saying that the actions of the 2^nd, 3^rd and 4^th Respondents were marred with a lot of irregularities and or illegalities which this Court cannot condone.

As regards the 1^st Applicant, it is this Court's finding that he cannot fight for what does not exist; his affidavit in reply seems to be supportive of the notion that the $2^nd$ Respondent was duly appointed acting Executive Secretary whereas not. The 1st Respondent seems to have misunderstanding which is imputed from his failure or omission to recognize the $1^{\rm st}$ Applicant as the duly appointed Executive Secretary albeit in an acting capacity.

The person that 1^st Respondent recognizes on his own admitted the illegality and lack of authority in endorsing the Consent.

A perusal of the Consent Judgements I believe will give clarity to the issues at hand.

The Consent Order dated 6^th April 2023 between the parties allowed a forensic audit to access the accounts of the 6^th Defendant.

The other Consent Order is dated 24^th July 2023 arose in MA 84 of 2023 between the 2 Defendants (now Applicants in the instant Application) shows among others that $1^{st}$ Applicant was appointed as Executive Secretary; the 2^nd Respondent was not

validly appointed as Executive Secretary of the 2^nd Applicant; 2^nd Applicant did not authorize the entering of consent order in respect of Civil Suit 14 of 2023 and that Applicants are willing to withdraw and shall withdraw their dispute from Court against all the parties to the Consent. This Order is duly endorsed by all the parties although not sealed by the Court.

Counsel for the Applicants argued that the case against the $1^st$ Respondent Tugonzaruhanga Joseph is still alive since he was not party to the Consent Order of 23^rd July.

What is clear to me is that that party is not represented by Counsel for the Applicant and this Court perceives the Consent Order to be unequivocal to the extent of admitting the misrepresentation.

Withdrawal of matters is governed by Order 23 of the CPR and the withdrawal need not be by Consent therefore it is fallacious to argue that the 1^st Respondent did not Consent to the withdrawal.

However, this withdrawal seems to have its unique hitches because the respondents in that matter are also Defendants in the Civil Suit and cannot withdraw what they have not filed. It is also clear that the Plaintiff is not party to the withdrawal and therefore cannot be bound to what he did not Consent.

Civil Suit 14 of 2023 was filed by the 1^st Respondent Tugonzaruhanga and if he wishes to continue to prosecute the matter he is at liberty to do so. But as between the other Respondents the Consent seems to be to the effect that all

misrepresentation has been acknowledged. In light of that acknowledgement, that consent negates all admissions that were made in the consent order of 14^th April.

The position therefore is that no forensic has been admitted and the office bearers have relinquished their claim on the offices they had allotted themselves. This would by necessary implication mean that the Plaintiff has to prove every aspect of his case if he is correct.

The cases cited for the Applicants in this matter are the correct position of the law. However, the illegality seems to have been cured by the 2^nd Consent Order executed on 23^rd July 2023. That Consent reflects the agreement of the parties although it had not yet been sealed by the court.

This Court is mindful that that Consent Order was not signed by the 1^st Respondent/Plaintiff. However, since this illegality has been now presented by Consent of the Respondents then the Court cannot turn a blind eye to the illegality. And for clarity the court declares that Consent Judgement illegal because of what is contained in the Consent Order on 23^rd July 2023.

The issue of misrepresentation; is factual and was admitted by the parties in the consent order executed in 23^rd July 2023 and as correctly stated in the various case that misrepresentation and illegality negate the strength of the Consent or better still makes void ab initio.

It is clear that even though the consent order of $23^rd$ July 2023 does not yet bear the seal of the court and yet the minds of the Respondents are apparent in admitting the misrepresentation.

That would mean that the illegality has been brought to the attention of this Court and this Court finds that the Consent Order of 14^th April 2023 was entered without authority and is therefore illegal. It is consequently set aside.

Issue 5: What remedies are available to the parties?

The remedies in my view is to set aside the consent order of $14^{th}$ April 2023 and each party bears their own costs.

Dated at Mukono this 31^st day of October, 2023.

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Christine Kaahwa

JUDGE