Feed the Children LimitedUganda Limited v Olukutukei and 2 Others (HC Miscellaneous Application No. 943 of 2019) [2021] UGHCLD 106 (10 August 2021)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MISC. APPLICATION NO. 0943 OF 2019

(ARISING FROM CIVIL SUIT NO.748 OF 2006 AND CIVIL SUIT NO. 113 OF 2011)

FEED THE CHILDREN UGANDA LIMITED::::::::::::::::::::::APPLICANT

VERSUS

1. JESSY OLUKUTUKEI

- 2. JORAM ODEKE t/s FELBRIGHT & CO. - 3. FEED THE CHILDREN LARRY JONES INTERNATIONAL MINISTRIES INC::::::::::::::::::::::::::RESPONDENT

BEFORE: HON. MR. JUSTICE HENRY I. KAWESA

RULING

This application is seeking orders that the consent judgment and the result and decree in HCT-Civil Suit No. 113 of 2011 be reviewed and set aside.

That upon grsant of the above, Civil suit No. 748 of 2006 and Civil Suit No.113 of 2011 be consolidated. That Mr. Sam Mayanja and M/s Capson Ltd be added as Defendant and the aforementioned consolidated civil suit be heard and determined according to the law.

The application is surpported by the affidavit of Nicholas Kasangaki. The same is opposed by the Respondents vide an affidaqvit in reply of Frank Ssewagudde; Joram Odeke and John Oyambi.

The issues:

1. Whether the application discloses grounds upon which this Honourable Court may review and set aside Civil Suit No.748/2006 and HCT Civil Suit No.113 of2011.

The law:

Reviewing of a judgment is governed by section 83 of the Civil Procedure Act and O.46. The provision is to the effect that a person considering himself aggrieved by a decree or order from which no appeal is allowed, may apply for a review of judgment to the Court which passed the decree or made the order.

The Applicant must therefore prove that;

- a) It is aggrieved by a decree or order from which no appeal is allwed or, - b) There is a mistake or error apparent onn the face of the record,

c) There is other sufficient reason.

The 1st and the 2nd Respondents, from their affidavits and reply in submissions do not oppose this application and threfore the only opposition on record is the 3rd Respondent.

The 3rd Respondent raised points of law, while responding to the application which I will consider together with the entire resolutions of issues above.

I will handle the issues as listed and dispose them of as herebelow.

Issue No.1:

Whether the Applicant is an aggrieved party.

In law the defination of an aggrieved person is artuculated in the case of *Ladark Abdalla Mohammed Hussein versus Griffths Isingoma Kakuoza & 2 others; SCCA NO.08OF 1995*, as *a person who has suffered a legal grivance*. This defination excludes a person who is merely disappointed by the results of a legal grivence or process as per *Exparte side Bethamin in reside Batham (1880)14 ch. D.458 at 465.*

The defination is emphasied in *Re- Nakivubo Chemists (1979) HCB* which held that;

*"any person considering himself aggrieved under Section 82 of the Civil Procedure Act meant a person who has suffered a legal grievance. A legal griveance does not mean a person who is disappointed by a benefit which he/she must have received if no other order had been made"*

A person aggrieved must be a person who has suffred a legal grievance, a person against whom a decision has been pronounced, which has wrongfully deprived him/her of something or wrongfully affected his title (*James LJ; in re Betham; supra)*.

I agree that reading paragraphs 11,12,13,14 of the affidavit in support of the Applicant, it is clear that the Applicant and the Respondents entered a consent judgment in Civil Suit No.748 of 2006 and 113 of 2011- under a belief that the 3rd Respondent was a legal entity, only to discover that he was not.

According to the arguement for and against this positioin in submissions by Counsel for the Applicants and Counsel for the 3rd Respondent are noted.

However, in the main application, and supporting annextures and affidavits for and against, I note the following:

According to the affidavit of Nicholas Kasangaki under paragraphs 4- 20, there is reference to annextures 'Á'—'T' which shows that there were a lot of irregularities and illegalities behind the signing of their consent. An exampleis in paragraph 11, which reveales, upon a scrutiny of annexture 'Í'and 'J' (decrees of Court in Civil suitNo.748of 2006, and 113 of 2011) it is showed that the Respondents had misled Court to beleive that the 1st Respondent was a legal entity whereas not. The 1st Respondent having filed a notice of cessation of business on the 21st day of March 2005; (attached as 'K').

I have looked at the said annexture and it is a notice in accordance with Section 377 of the Company's Ordinance showing that the company; Feed The Children Uganda; Larry International Ministries, ceased to exist from Janury 28, 2005; filed by Kiyingi & Co. Advocates to exist from 28th Jan 2015.

The same information is responded to by Joram Odeke'saffidavit in reply in ambigious terms in paragraphs 4 and 5 of his affidavit, thus:

*'I am further informed after perusing the affidavit in reply of Frank Sswewagudde that the 3rd Respondent has not been de-registered or wound up business, but merely relocated from Kampala to Gulu, which matter makes it easier to be located and come to Court and clarify issues sorrounding the acquisition, sale and transfer of plot 68 Mawanda Road, not ourselves because they were not owners of that property''*

This matter is glossed over by John Oyambi in his affidavit under paragraph 3(b), specifically thus;

'*I, together with the other promoters have not met and or authorised anyone regarding this matter to represent and/or swear an affidavit on our behalf and such Mr. Frank Ssewadudde did not consult me or any other known promoter of Feed the Children Uganda Larry Jones International Ministires registered in 2010/2011'*.

Meanwhile, the affidavit of Frank Sewagudde under paragraph 4 alludes to the Applicant company being a creature of a fraudlent process and forgeries.

He depones in paragraph 5 that it is Respondent No.3 has never ceased to exist and refers to annexture 'G'. A close look at annexture 'G' is a photocopy, not certified, though it's contents show that there is confusing docuementation regarding the status of the 3rd Respondent.

In essence, there is no clear position regarding the status of the 3rd Respondent as a legal entity at the time the consent wasentered. The pingpong on record is evidence of this confusing status of the 3rd Respondent. The Advocates keep challenging each other, the Directors are unknown, efforts by Court to get an independent opinion from the NGO Board, were ignored.

There is definately no satisification why the 3rd Respondent opposes this application. I find, without hesitation that there is all evidence to prove that the Applicant is an aggrieved party.

Issue No. 2

Whether there is a mistake or error apparent on the face of the record Given the findings under the issue above, I do find various discrepancies regarding the status of all the Respondents who took part in the consent. There is an illegality glaring on record regarding the legal status of the 3rd Respondent.

There is a question as to who was with the legal authority to handle this transaction. A reading of the submissions of all parties and their affidavits, shows that they all allege fraud and illegalities. There is no proper explantions as to why the legal status of the 3rd Respondent rectfied before the consent was entered.was not rectified before the consent was entered.

My finding is that the 3rd Respondent was a non existant entity at the time which is an error apparent on the record.

Issue No. 3

Whether the Applicant is entitled to the remedies sought:

The High Court has powers under Section 33 of the Judicaturte Act to grant relief to resolve the contraversies between parties. There are glaring irregularities that were committed by the different players and such illegalities, once brought to the attention of Court, can not be allowed to stand. *See the case of Makula International versus His Emminance Cardinal Wamala Nsubuga*) Court held that;

'*Án illegality once brought to the attention of Court, cannot be allowed to stand'*.

There having been a number of irregularities drawn to Court's attention, the same are noted and the consent cannot be allowed to stand.

This application therefore succeeds on all grounds as prayed. The application is greanted with costs.

I so order.

Henry I. Kawesa JUDGE 10/08/2021.

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10/08/2021:

Frank Sewagudde; Katende for the 3rd Respondent.

Kaddu Dennis for the Applicant.

Court:

Ruling delivered to the parties above.

Henry I. Kawesa

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JUDGE

10/08/21