THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO.13 OF 2001
(Arising out of HCCS 1289 of 1998)
ATTORNEY GENERAL………………………………………….APPLICANT
Versus
CHARLES ABOLA & OTHERS…………………………………… RESPONDENTS
BEFORE: THE HON. MR. JUSTICE E.S. LUGAYIZI
RULING
This ruling is in respect of an application to review a consent judgment dated 10th January 2000. The application was brought by way of Notice of Motion under sections 83 and 101 of the CPA and Order 42 rules 1 and 8 of the CPR and sections 16 and 35 of the Judicature Statute. It is accompanied by an affidavit that was sworn by Mr. Byamugisha Kamugisha. The background to it is briefly as follows.
The respondents are former civil servants. They filed HCCS No.1289 of 98 against the Government on their behalf and on behalf of their colleagues whose number was over six thousand in all, on account of breach of terms and conditions of employment. They claimed that theGovernment had initially promised to pay them pension on the understanding that they would accept being retrenched. However, when they accepted to be retrenched the Government reneged on its promise to pay. They therefore filed the above suit against the Government and sought a declaration that they were entitled to pension on retrenchment and general damages for breach of terms and conditions of employment. In his WSD the applicant denied the above claim. However, on the strength of certain admissions Court entered judgment against him and held him liable to the respondents. Following the event on 10th January, 2000 the applicant and the respondents entered into a consent judgment in which the applicant undertook to pay the respondents a sum of Shs.7,356,283,107/= as pension. On 31st March, 2000 a consent order was recorded between the respondents’ advocates and the respondents in which the latter undertook to pay the former 15% of their pension money as remuneration. Subsequently, (on the respondents’ application) Court made an Order directing the applicant to pay the advocates’ costs (i.e. 15% of Shs.7,356,283,107) directly to them. Time passed, but the applicant did not pay the respondents’ pension or the advocates’ costs. Instead, he chose to seek a review of the consent judgment dated 10th January 2000. Hence this application.
As the time of hearing the application, Mr. Matsiko (a Senior State Attorney) represented the applicant; and Mr. Nsibambi Kimanje represented the respondents. In essence, Mr. Matsiko submitted that the applicant seeks a review of the consent judgment because he was not aware at the time of entering it that the sum of Shs. 7,356,283,107/= initially projected by the Minister of Service as pension payable to the respondents was merely a tentative figure. However, he only came to know the truth later when the Permanent Secretary to the said Ministry advised him of the details of the persons who were entitled to be paid pension and how much they were entitled to. From those details it became clear that 1507 respondents (out of 6339) were not entitled to pension. Consequently,the true amount that the respondents were entitled to as pension was Shs. 4,869,096,384/= and not Shs.7,356,283,107/=. Mr. Matsiko concluded that if a review affecting the above figures is not granted, the Government will lose twice. Firstly, instead of paying the sum of Shs.4,869,096,384/= as pension to the respondents, the applicant will pay a hefty sum of Shs.7,356,283,107/=. Equally so, the advocates’ costs (i.e. 15% of the pension payable to the respondents’ advocates) will be based on the hefty figure above and not the small one. For those reasons Mr. Matsiko urged Court to review the consent judgment in order to save the Government from losing money.
Mr. Nsibambi Kimanje opposed the application for two reasons. Firstly, he submitted that it did not fall within the purview of section 83 of the CPA. This is so because (in his view) the applicant failed to prove that at the time the consent judgment was recorded there was fraud or collusion or that the arrangement was against the policy of Court. He relied on the case of Brooke Bond Liebig(T) Ltd v Mallya [1975] EA 266 at page 269 for that. position. Secondly, Mr. Nsibambi submitted that Mr. Byamugisha
