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THE REPUBLIC OF UGANDA
IN THE SUPREME
COURT OF UGANDA
AT MENGO
BEFORE: HON JUSTICE G.W. KANYEIHAMBA ,J.S.C.
CIVIL APPLICATION NO. 2/2002
ARISING OUT OF COURT OF APPEAL CIVL APPEAL NO. 26 OF 2001 AND RELATED APPLICATION NOS. 12,13,1,4,17 AND 30 OF 2002
AND
HIGH COURT CIVIL SUIT NO. 173 OF 2000 AND RELATED APPLICATIONS NO. 1852 AND NO. 1873 OF 2000.
BETWEEN
EAST AFRICAN GENERAL INSURANCE CO. LTD
REPRESENTED BY M/S KATENDE
& SSEMPEBWA & CO. ADVOCATES::.:::.:::::::::::.::.::.:::::::::::::
1ST APPLICANT
AND
EAST AFRICAN GENERAL INSURANCE CO. LTD
REPRESENTED BY M/S SEBALU &
LULE & CO. ADVOCATES :::::::::::::::::::::::::::::::::::::::::1ST
RESPONDENT
ATTORNEY GENERAL:::::::::::::::::::::::::::::::::2ND
RESPONDENT
M/S SAM K. NJUBA ADVOCATES ::::::::::::::2nd APPLICANT
REPRESENTING CERTAIN SHARES IN THE APPLICANTS APPLICATION.
RULING OF THE COURT :
This is an application by way of motion under rule 41 of the Rules of this
court, 1966. The applicant seeks an order from this court
to amend the judgment
dated 6th day of December, 2001 brought before my brother, Hon
Justice Oder, J.S.C., as a single judge of this court and agreed to and signed
by counsel representing all the parties. The application seeks that the said
consent judgment be amended in its clauses (c), and
(d), in order to reflect the
desire expressed by the majority post 1972 EAGEN shareholders as contained in
their resolutions (c),
(d) and (e) passed at their general meeting held on
18.12.2001. The applicant also asked that there be no costs following the
disposal
of this application.
Mr. Mukiibi, holding a brief for Sam Njuba appeared for the 2nd
applicant and Prof. Ssempebwa and Mr. Katende represented the 1st
applicant while the Attorney General was represented by Mr. Masiko,
learned Principal State Attorney. The application was supported
by the affidavit
of Haji Lubega Kaddanabbi and opposed by that of Maria Wamala. A little more
will be said about these two affidavits,
later in this ruling.
Prof. Ssempebwa raised a preliminary objection. He contended that, this court has no jurisdiction to hear an application seeking to vary a consent judgment entered into and approved by another single judge. Both Prof. Ssempebwa and Mr. Katende. respectively made submissions on lack of jurisdiction of this court.
Having given the background to the consent judgment, Prof. Ssempebwa
contended that any party wishing to challenge a consent judgment
approved by a
single judge of this court can only do so by making a reference to a panel of
three justices in accordance with the
rules of court. Counsel cited s. 9 (2) of
the Civil Procedure Act and Rule 51 (1)(b) of the Rules of this Court. Mr.
Katende submitted
further that the jurisdiction of the court is only granted by
statute as amplified by the rules and therefore the application was
incompetent.
Mr. Mukiibi for the 2nd applicant disagreed with the submissions
of Prof. Ssempebwa and Mr. Katende. He contended that Rule 53 of the Rules of
this Court
gives the jurisdiction to vary a consent judgment approved by a
single judge. Mr. Masiko chose not to address court.
Having heard Counsel for both parties and reviewed the law applicable, I was
satisfied that the application was improperly before
me. I therefore dismissed
it with costs to the applicant represented by M/s Katende and Ssempebwa &
Co. Advocates; 1 intimated
that I would give reasons at a date to be notified to
the parties. I do so now.
REASONS:
In my opinion, where a consent judgment agreed to
by all the parties to it and entered into court and approved by a judge of this
Court, in this case, my learned brother, Justice Oder JSC. it is not permitted
for another single judge to vary that consent judgment.
It is also my opinion
that it would not be possible for the single judge who approved the consent
judgment to do so especially where
one or more of the parties to that consent
judgment objects to the variation or amendment.
The submission by learned counsel for the 2nd applicant that Rule
53 (1) of the Rules of this court gives jurisdiction to this court is, in
my
opinion, untenable Rule 53(1) provides,
"(1) an order made on an application heard by a single judge may be varied or rescinded by that Judge or any Judge of the court or three judges of that court on the application of any person affected by the order, if
(a) the order was one extending the time for doing an act, otherwise than to a specific date, or (b) the order was one permitting the doing of some act, without specifying the date by which the act Mas to be done, and that the person on whose application the order was made has failed to show reasonable diligence in the matter. (c) Any order made on an application to the court may similarly be varied or rescinded by the court."
Clearly, none of the provisions of this rule applies to the facts and
circumstances of the application before me.
On the other
hand, s.9(2) of the Judicature Statute, 1966 provides,
"Any person dissatisfied with the decision of a single Justice in the exercise of a power under subsection (1), is entitled to have the matter determined by a bench of three Justices of the Supreme Court which may confirm, vary or reverse the decision. "
And Rule 51 (1) of the Rules of this Court provides,
"Where under subsection (2) of section 9 of the Judicature Statute, 1966, any person Who is dissatisfied with the decision of a single Judge of the court
(a)
(b) in any civil matter wishes to have any order, direction or decision of a single jungle, discharged or reversed by the court, the applicant may apply for it informally to the Judge at the time when the discretion is given, or by writing, to the Registrar within seven days after that date.
At the hearing by three Judges of the Court of an application previously decided by a single judge, no additional evidence shall be adduced except with the leave of the court."
The affidavits of both, Haji Lubega Kaddunabbi for the 1st applicant and Maria Wamala for the 2nd applicant, did not comply with rule 51 (2) of the rules of this Court. In any event, it is clear from both provisions of the statute and of rule 51 (b) that this court consisting of a single judge has no jurisdiction to hear and determine this application. It was for these reasons, that I dismissed the application with costs.
Dated at Mengo this 27th Day of March 2002
JUSTICE G W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT
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