THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC APPLICATION NO 188 OF 2014

ARISING FROM HCCS NO 391 OF 2012

JENNIFER HARRIET BAMWITE}...........................................................APPLICANT

VS

ARVIND PATEL}...............................................................................RESPONDENT

Application for release of judgment debtor from civil prison and setting aside execution of the consent judgment and setting aside consent judgment

Brief facts

The Applicant filed this application under section 34 (1) and 98 of the Civil Procedure Act and Order 9 rules 9 and 12 of the Civil Procedure Rules for an order that the consent judgment entered on 16 October 2012 is set aside on the ground that it is based upon an illegality and is against the public policy of the court. Secondly it is for unconditional leave for the Applicant to defend the suit. Thirdly it is for an order to set aside execution in civil suit number 391 of 2012 by having the Applicant discharged from civil prison. Finally the Applicant seeks for costs of the application to be provided for.

The grounds of the application are that the Applicant was jointly sued with Grace Bamwite for recovery of Uganda shillings 63,000,000/=. The suit was based on bounced cheques issued by the first Defendant who is the Applicant’s husband one Mr. Grace Bamwite. Secondly she avers that the contract claim should have been based on a loan agreement executed for Uganda shillings 29,000,000/= for which Uganda shillings 17,000,000/= had already been paid. The Applicant was forced to sign a consent judgment by armed forces personnel outside the court. She further avers that she was never served with any court process and that it is in the interest of justice and fairness that judgment and decree issued be set aside and that she is discharged from civil prison and allowed to file her defence.

Civil procedure- consent judgment- whether consent judgment can be set aside. Grounds for setting aside a consent judgement.

Civil procedure – execution of consent judgment- setting aside execution of a consent judgment- whether execution of a consent judgment can be set aside.

Civil procedure – discharge of judgment debtor- whether a judgment debtor committed to civil prison can be discharged and granted leave to defend the suit.

Order 21 rules 6 (1) of

Held

1. My conclusion is that on the face of the record, the decree was drawn and extracted by Messrs Tumwebaze Atugunza, Kobusingye Advocates and Legal Consultants and it is likely to be an arbitrary drafting for the signature of the registrar in the absence of any evidence of the record of proceedings. Notwithstanding a perusal of the decree extracted shows that it does not conform to the consent judgment contrary to Order 21 rules 6 (1) of the Civil Procedure Rules.
2. Once the consent agreement was issued as the judgment of the court, the controversy between the parties had been finally determined and could only be set aside or varied as the decree purports to do on grounds for setting aside or varying a consent judgment.
3. The registrar cannot issue another decree in default of an application to apply for leave to defend the summary suit. Such an order would be without jurisdiction.
4. It was therefore erroneous to indicate that judgment was entered by consent under Order 36 rule 2 of the Civil Procedure Rules. Order 21 rule 6 (1) of the Civil Procedure Rules is mandatory and in the premises the decree cannot stand and is struck off the record for non-compliance with order 21 rule 6 (1) of the Civil Procedure Rules.
5. It is therefore a fundamental requirement that the decree should conform to the judgment so that whatever is enforced as embodied in the decree is the judgment of the court. It is immaterial that the judgment is a consent judgment. A consent judgment is protected and unless set aside is as good as any other adjudication with no right of appeal accruing from it.
6. Because the decree issued by the registrar does not conform to the judgment and includes persons in it who are not even mentioned in the consent judgment, execution proceedings on the basis of such an irregular decree cannot stand and is hereby set aside under Order 36 rule 11 of the Civil Procedure Rules. Furthermore the decree is set aside on the same grounds for not conforming to the judgment.
7. However where there is misapprehension or mistake of fact or law, it can be a ground for setting aside a consent judgment.
8. She was never given opportunity to reflect before endorsing the consent judgment when it was brought to her very early in the morning with the threat of arrest or imprisonment hanging over the family.
9. In my opinion the application raises triable issues which merit judicial consideration and the Respondent is not entitled to summary judgment since the foundation of his liquidated demand is in controversy. Is it based on cheques issued for money lent or based on a mortgage deed?

The applicant was granted leave to file a defence within 15 days from the date of the order and upon depositing in court Uganda shillings 3,000,000/= as security for the payment of the Plaintiff. Secondly the arrest and imprisonment of the Applicant in civil prison being based on a faulty decree was set aside and the Applicant was released forthwith from civil prison. The costs of this application to abide the outcome of the main suit.