THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

CIVIL DIVISION
HIGH COURT CIVIL SUIT NO. 49 OF 2014

1. DISON OKUMU
2. EDWARD UDHEK RUBANGA
3. JOSEPH HENRY NDAWULA
4. JAMES NATALA
5. STEPHEN MUKASA :::::::: PLAINTIFFS
6. FREDRICK JOHN MUBIRU
7. JOSEPH MUTATIINA
8. OYELLA ROSE EVE OPIRO
9. MARY WACHA
10. STEPHEN EPILU
Versus
1. UGANDA ELECTRICITY TRANSMISSION COMPANY LIMITED]
2. UGANDA ELECTRICITY DISTRIBUTION COMPANY LIMITED]
3. UGANDA ELECTRICITY BOARD (IN LIQUIDATION)]
4. ALEX BASHASHA T/A BASHASHA & CO. ADVOCATES]
5. PAUL NYAMARERE ::::::::::::::::: DEFENDANTS
6. HENRY KYAMBADDE]
7. JOHN WALUGO]
8. JOSEPHINE NAKFEERO]

BEFORE: HON. MR. JUSTICE STEPHEN MUSOTA

RULING
This is a ruling on preliminary points of law raised by the respective
learned counsel for the defendants in a suit brought by plaint. The

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preliminary objection is that the head suit is incompetent, untenable
and improperly before court in as far as the plaintiffs have no locus
standi to bring the suit and this court is not the right forum. That the
procedure adopted is also wrong. The other objection is that this suit is
res judicata because all issues were resolved in the earlier suit.

Learned counsel for the 1 st and 3rd defendant also raised an objection
that the suit is incompetent for failure to join the Attorney General and
other beneficiaries of the Compromise/judgment on admission as
parties to the suit.

At the hearing Mr. Ebert Byenkya appeared for the plaintiffs, Ferdinand
Musimenta appeared for the 1st and 3rd defendant, Geoffrey Madete
(SA) appeared for ht 2nd defendant, Mpumwire Abraham appeared for
the 4th defendant and was holding a brief for Didas Nkurunziza,
Lawrence Tumwesigye appeared for the 5th, 6th and 8th defendant.

The brief background to this case is that the 4 th to the 8th defendants
filed a suit in this court for recovery of unpaid arrears for themselves
and on behalf of 1500 other former employees of the 1 st and 3rd
defendants. They successfully completed the case and several other
cases in a Compromise which settled all claims in all suits which had
been filed. The plaintiffs were aggrieved by the consent orders and
that is why they filed the instant suit. The defendant objected to the
plaint and promised to raise preliminary points of law which this court
is dealing with in this ruling.

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The following issues arise from the preliminary points of law:
1. Whether the suit is incompetent for failure to join the Attorney
General and other beneficiaries of the Compromise/judgment on
admission as parties to the suit.
2. Whether the suit is brought before a right forum.
3. Whether the plaintiffs brought this matter through the right
procedure.
4. Whether the plaintiffs have locus to bring this suit.
5. Whether the plaintiffs’ claim is res judicata

I have considered the preliminary objections raised in relation to this

suit. I have also considered the pleadings and submissions by
respective counsel as well as the law applicable. I will go ahead and
resolve the issues as listed above.

1. Whether this suit is incompetent for failure to join the Attorney

General and other beneficiaries of the Compromise/judgment on
admission as parties to the suit?

On this issue, learned counsel for the 1 st and 3rd defendant submitted
that under paragraph 5 of the plaint and in the prayers sought in the
plaint the plaintiffs seek to set aside the Compromise dated 31 st may
2015 which is annex C and the judgment on admission which is annex
A of the plaint. That the Attorney General was a party to the
Compromise and judgment that are being impugned in this suit. The
Attorney General was the 4th respondent in MA 234 of 2012 under
which the said judgment was issued and the consolidated suits.

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Further that that under clause 3 of the Compromise the Attorney
General agreed to settle all liabilities arising out of the consolidated
suits and judgment on admission on behalf of the 1 st and 3rd
defendants on the terms set out in the Compromise. That the 1 st and
3rd defendants expected the Compromise on the strength of
government’s undertaking to settle liability arising thereunder on the
said defendant’s behalf and on the terms of the Compromise.

Learned counsel further submitted that the Compromise was executed

by the 5th to 8th defendants on their own behalf and on behalf of the
1500 former employees of UEB in liquidation as per clause 1 of the
Compromise. Further learned counsel for the 1 st and 3rd defendant
submitted that payments have been effected to the plaintiffs and the
said beneficiaries on the terms of the said compromise. However in
this suit the 5th to 8 defendants are not suing in their representative
capacity but individually. Further, learned counsel submitted that if the
orders sought in the plaint are granted the rights of 1500 beneficiaries
who are not parties to this suit will be affected. That the suit is
therefore incompetent and should be struck out with costs to the 1 st
and 3rd defendants.

In reply, learned counsel for the plaintiffs submitted that the 1 st and 3rd
defendant have no locus standi to raise the objection because the
Attorney General has exclusive legal mandate to act in any legal
proceedings for himself and for the government of Uganda even on
preliminary objections. That to allow the 1st and 3rd defendants to

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pursue this objection will be a clear violation of S 10 of the
Government Proceedings Act.

Regarding the issue of the 1500 other former employees, learned

counsel submitted that the 1st and 3rd defendants do not represent
them and so have no right to raise this objection on behalf of the 1500
former employees. That the mere omission to add a party does not
render a suit incompetent. He relied on O. 1 r 9 of the Civil Procedure
Rules which provides that no suit shall be defeated by reason of mis-
joinder or non-joinder of parties and O. 1 r 6 of the Civil Procedure
Rules for the submission that the plaintiff is free to choose who to
sue.

Learned counsel also explained that the reason why they left out the
Attorney General is because he was never liable or sued and that there
was no instruction whatsoever to sue the Attorney General by the
1500 others. He also submitted that the court is merely being asked to
speculate. In the alternative learned counsel submitted that if this
court finds merit in this objection the solution is not to strike out the
plaint but rather to order a party to be added. For this reasoning
learning counsel relied on O. 1 r 10(2) of the Civil Procedure Rules.

After careful consideration of the background and facts of this suit, I

am in agreement with the submissions by learned counsel for the
defendants that this suit is incompetent for failure to join the Attorney
General and the other beneficiaries of the Compromise/judgment on
admission as parties to the suit. It is important to note that under

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paragraph 5 of the plaint and in the prayers sought thereunder the
plaintiffs seek orders to set aside the compromise dated 31 st May 2013
(annex C of the plaint) and the judgment on admission (annex A of the
plaint) entered by this court on 13 th July 2012. The Attorney General
was a party to the compromise and the judgment that are being
challenged in the suit. The Attorney General was the 4 th respondent in
MA No. 234 of 2012 under which the said judgment was issued.
Likewise the Attorney General was the 4 th defendant in the
consolidated suit under which the compromise was entered and the
compromise was drawn and signed inter alia by the Attorney General.

It is on record that under clause 3 of the compromise, the Government

of Uganda represented by the Attorney General agrees to settle all
liabilities arising out of the consolidated suits and judgment on
admission on behalf of the 1st, 2nd and 3rd defendants on the terms set
out in the compromise, which included payment of outstanding
terminal benefits by Government in installments with the involvement
of the Auditor General in ascertaining the amounts due to the
beneficiaries of the compromise, the segregation of liability between
the successor companies of UEB, the payment of lumpsum in lieu of
months pension, the payment of the decretal amounts through the 3 rd
defendant, the procedure of payment by Government of the terminal
benefits and costs of the suit.

The compromise I have referred to was executed by the 1 st and 3rd

defendants on strength of Government’s undertaking to settle all
liability arising thereunder on the said defendants’ behalf and on the

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terms stated in the compromise. The said compromise was executed
by the 5th to 8th defendants on their own behalf and on behalf of over
1500 former employees of UEB as per clause 1 of the compromise.
Because of this background, partial payments have been effected to
the plaintiffs and the beneficiaries.

From the pleadings, it is apparent that the 5 th to the 8th defendants

were sued in their individual capacities not as representatives of the
other beneficiaries of the compromise/judgment on admission (see
para 4 of the plaint). They are referred to as “Purported
representatives” and are sued for allegedly acting outside the scope of
the representative order.

I therefore agree that if the orders sought in the plaint are granted
and the compromise/judgment on admission is set aside, the rights of
over 1500 beneficiaries who are not parties to the suit will be affected.
In the same vain, the rights of the Government which undertook to
bear the liability to pay the said pension and other terminal benefits on
the 1st and 3rd defendants’ behalf as per the compromise/judgment will
be adversely affected given that the over 1500 beneficiaries and
Government are not parties to the suit. The two will be condemned
unheard in a matter which affects their rights.

Alternatively if this court made any orders sought in the plaint such
orders would not affect the Attorney General implying that the Decree
would remain enforceable against him. It is my finding therefore that
this suit is incompetent for failure to join the Attorney General and the

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other beneficiaries of the compromise/judgment on admission as
parties to the suit.

2. Whether the suit is Res-judicata.

Learned counsel for the defendants submitted that the plaintiffs in

paragraph 5 seek to exclude the payment of plaintiff’s terminal
benefits after deducting the lawyers’ fees which was the very subject
in MA 234 of 2012 which was deliberated upon and determined by
court and as such making the issue in this suit res judicata and
untenable.

Learned counsel further submitted that the issue of the lawyers’ fees
was resolved in HCMA 272 of 2013 in annex E & F to the plaint which
was an application which was filed by the 4 th defendant against the 5th,
6th, 7th and 8th defendants to determine legal fees payable for
prosecution of HCCS of 2008 as consolidated.

Subsequently, Baligobye Jamada one of the beneficiaries under HCCS

138 of 2008 filed a similar application vide HCMA 290/2013 to
determine the legal fees payable to the 4 th defendant. The same was
heard and dismissed. That the 2 nd plaintiff also brought another
application vide HCMC 289 of 2013 to determine the same issue of
payment of legal fees to the 4th defendant which was dismissed.

According to defendants it is clear that the plaintiffs who were

beneficiaries under the Decree in HCCS 138 of 2008 have made it a

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habit to bring frivolous matters in court over the same issues which is
an abuse of court process.

The defendants’ counsel further submitted relying on S. 7 of the Civil

Procedure Act and the case of National Council for Higher
Education Vs Anifa Kawooya Bangirana Constitutional Petiton
No. 4 of 2011 that court should not entertain a matter which has
already been decided by a court of competent jurisdiction. That this
suit be declared re judicata and be dismissed.

In reply, learned counsel for the plaintiffs submitted that the plaint is
not challenging the judgment on admission which was varied by the
compromise.

Under S. 7 of the Civil Procedure Act, it is provided that no court shall

try any suit or issue in which the matter directly or substantially in
issue has been directly and substantially in issue in a former suit
between the parties under whom they or any of them claim in a
competent court to try a subsequent suit in which the issue has been
subsequently raised and has been heard and finally decided by that
court.

The case of National Council for Higher Education Vs Anifa

Kawooya Bangirana (supra) echoed the provisions of S. 7 of the
Civil Procedure Act. In the decision by Tsekooko JSC (then) while
relying on the case of Mashukar & Another Vs Attorney General &
Another SCCA 20 of 2002 he states thus:

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 “The provision indicates that the following broad minimum
conditions have to be satisfied;
1. There has to be a former suit or issues decided by a
competent court.
2. The matter in dispute in the former suit between the
parties must be directly or substantially in dispute
between the parties in the suit where the doctrine is
pleaded as a bar.
3. Parties in the former suit should be the same parties
under whom they or any of them claim, litigating under
the same title.”
Once a decision has been given by a court of competent jurisdiction
between two persons over the same subject matter, neither of the
parties would be allowed to re-litigate the issue again or to deny that a
decision had in fact been given, subject to certain conditions: Karia &
Another Vs Attorney General [2005]1 EA 83, 94.

With the above legal position in mind, I am in agreement with learned

counsel for the defendants that the claim as indicated in the plaint
concerns payment of the plaintiffs’ terminal benefits after deducting
the Lawyers’ fees and it to be paid. These issues have been
substantially heard and determined by this court. By the plaintiffs who
have the same claim as those who litigated before bringing this suit on
similar facts, offended the doctrine of res judicata. Accordingly I will
find that this suit is as well res judicata and should be dismissed.

3. Whether the plaintiffs have locus standi to bring this suit?

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On this issue learned counsel for the defendants submitted that it is an
agreed fact in the joint scheduling memorandum paragraph 2 that the
5th, 6th, 7th and 8th defendants filed representative suits on behalf of the
former employees of Uganda Electricity Board, the 3 rd defendant. The
former employees’ contracts of employment had been transferred to
the 2nd defendant. That the representative suit filed by 5 th, 6th, 7th and
8th defendants benefited the plaintiffs in this case.

They further submitted that it is also an agreed fact in paragraph 5 of

the joint scheduling memorandum that by consent of the parties to the
said Civil suits, the Attorney General and the 1 st, 2nd and 3rd defendants
on the one hand and 5th, 6th, 7th and 8th defendants on the other hand
agreed and entered a compromise in court for a settlement of the
claims under HCCS No. 967 of 2005 & 760 of 2006 and a decree was
issued by this court. Further that the 5 th, 6th, 7th and 8th defendants
also entered a consent on behalf of the plaintiffs for professional fees
to the 4th defendant for work carried out in prosecution of the suits.
That it is clear that the suits were brought in a representative capacity
for the benefit of the plaintiffs and others as per annextures A 1, A2, &
A3 to the plaint. That therefore the 5 th, 6th, 7th and 8th defendants are
authorized representatives of the plaintiffs and therefore the plaintiffs
having recognized the 5th, 6th, 7th and 8th defendants as their
representatives are bound by their actions. That therefore the plaintiffs
have no locus standi to challenge or contest the compromise and
consent orders entered on their behalf. Learned counsel relied on the
provisions of O. 1 r 8(2) of the Civil Procedure Rules and the case of

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Jasper Mayeku & 198 others Vs Attorney General & others
HCMA 618 of 2014 and Bako Abilla Catherine & 21 others Vs
Attorney General & KCCA MA 628 of 2009.

In reply, learned counsel for the plaintiffs submitted that Mayeku

case (supra) is distinguishable for the present case because in
Mayeku case the claim was by way of an ordinary application and
evidence was adduced by way of affidavit and so the court made the
decision after being furnished with all the necessary evidence. That
however in the current case the claim is by way of plaint and therefore
the evidence is yet to be adduced. Learned counsel also submitted that
this court in making the decision in the Mayeku case relied on the fact
that there was not sufficient evidence to prove that the consent order
sought to be challenged had been entered into by consent.

Relying on the authority of Shell (U) Ltd & 9 others Vs Muwema

Mugerwa & Co. Advocates & another SCCA 2 of 2013, learned
counsel for the plaintiffs submitted that the current position of the law
is that authority granted under representative orders is derived strictly
from the terms of the said order and that the persons represented are
not to pay any costs incurred by the representative unless ordered by
court. That a representative order does not operate as a bar to any
claims relating to the actions of the representative.

Learned counsel further submitted that in the case of Ladak Abdulla

Mohammad Hussein Vs Grffiths Isingoma Kakiiza CA 8 of 1995
Odoki JSC (as he then was) held that it may be true that in a suitable

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case a third party can apply for review under the inherent powers of
court. But he can bring objection proceedings against execution or
bring a fresh suit or file an application to set aside the decree or order.
That O. 9 r 9 of the Civil Procedure Rules is not restricted to setting
aside exparte judgments but covers consent judgments entered by the
Registrar. That the law gives the court unfettered discretion to set
aside or vary such judgments on such terms as may be just nor is it
restricted to parties to the suit but includes any person who has a
direct interest in the matter and who has been injuriously affected.
That the issue if locus standi is here fully settled because anyone who
has a direct interest can challenge a consent order and may adopt
whichever procedure whether by suit, application, review or objector
proceedings.

In rejoinder, learned counsel for the 4 th, 5th, 6th, 7th and 8th defendants
submitted that the plaintiffs’ submissions in reply delved into matters
of evidence and attempted to adduce the same from the bar rather
than addressing the points of law raised. That this was a total
misconception of the preliminary objections. Learned counsel also
submitted that the Shell (U) Ltd & others Vs Muwema & Mugerwa
Advocates SCCA 2 of 2013 which the plaintiffs heavily rely on is
distinguishable and does not relate to the objection raised or even the
facts of the case before this court. Learned counsel relied on
paragraph 5 of the plaint which according to him shows that what is in
issue in this case are court orders rather than private agreement as
was in Muwema case.

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Further in rejoinder, learned counsel for the 4 th, 5th, 6th, 7th and 8th
defendants submitted that the judgment on admission in HCMA 234 of
2012 was not a partial fulfillment of the claim in HCCS 138 of 2008,
HCCS 967 of 2005 and HCCS 760 of 2006 and was never appealed
against. Therefore it is wrong to submit that the said judgment on
admission effectively terminated the proceedings for which the
representative order was given. Further that later, compromise was
entered to fully settle the suits which were consolidated in HCCS 138
of 2008 which is annexture C to the plaint.

That the claims not concluded in the judgment on admission were

disposed of in the compromise and therefore the two judgments
complement each other.

Learned counsel also submitted that the said judgments are orders of
court and cannot be illegal or unlawful. He also submitted that it is
clear that the plaintiffs never sought at any given time to be added to
HCCS 138/ as (consolidated) as parties in accordance with O. 1 r 8(2)
of the Civil Procedure Rules and as such have no locus standi to bring
this suit challenging the decree and orders entered in court
proceedings where they were represented by the 5th to 8th defendants.

In further rejoinder learned counsel submitted that contrary to what

the plaintiffs appear to propose as a compromise under O. 25 r 6 of
the Civil Procedure Rules is not a mere agreement but rather a
judgment of court. He relied on the case of Saroj Gandesha Vs
Transroad SCCA 13 of 2009 per Katureebe JSC (as he then was)

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where he held that a judgment entered on a agreement which receives
the sanction of court and it constitutes a contract between the parties
to the agreement, operates as an adjudication between them and
when court gives the agreement its sanction becomes a judgment of
the court. Learned counsel also cited the case of Ismail Sunder
Hirani Vs Noorali Esmail Kassam CA 11 of 1952 where it was held
that in a case which has been settled by a compromise, the decree is
passed upon a new contract between the parties and supersedes the
original cause action. That therefore the plaintiffs cannot revert back
to the original contracts of employment because those causes of action
were superseded by the compromise entered by their representatives.

After a careful evaluation of the respective submissions by learned

counsel regarding this issue, I will start by quoting the comments of
the court of Appeal of Kenya in Cahill & others Vs Nandhra &
others [2006] 1 EA 35. It was stated that a representative suit in
one which is filed by one or more persons or parties under O. 1 r 8 of
the Civil Procedure Rules on behalf of themselves and others having
the same interest. There is no requirement that a person seeking to
institute a suit in a representative capacity must establish that he had
obtained sanction of the persons interested on whose behalf the suit is
proposed to be instituted. The object for which O 1. R 8 of the Civil
Procedure Rules was enacted was to facilitate the decision of questions
in which a large body of persons is interested without recourse to the
ordinary procedure.

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The main purpose of the order was to forestall insuperable practical
difficulties in the institution of separate suits in cases where the
common right or interest of a community or members of an
association or large sections of people were involved. Though the rule
on representative actions should be relaxed and developed liberally to
meet modern requirements of representative civil litigation,
representative actions should not be allowed to work injustice to any
litigating parties. Therefore O 1 r 8 of the Civil Procedure Rules being a
facilitative one must be given a broad interpretation which will secure
its purpose of enabling several parties to come to justice in one action
rather than in separate actions.

The above is a very instructive pronouncement. From its reading it is

clear that the purpose of O. 1 r 8 of the Civil Procedure Rules is to
encourage parties to bring one suit instead of a multiplicity of suits. It
is basically intended to reduce case backlog. Representative actions
should not be allowed to work injustice to any litigating parties and
that is why the representative order is advertised and any person is
allowed to apply to be made a party to the representative suit. A
representative however does not need to obtain sanction of the
persons interested on whose behalf the suit is proposed to be
instituted.

Bearing those principles in mind I must add that such suits as the
present one are very undesirable and intend to only perpetuate
litigating in the guise of fighting for the rights of the parties. In the
case of Jasper Mayeku & 198 others Vs Attorney General &

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others HMCA 618 of 2014, this court held that the fact that the 2 nd
and 3rd respondents in the case were still the appointed and authorized
representatives of the ISO employees, the applicants had no locus
standi to challenge what was agreed upon by their representatives and
advocates. The applicants were not party to the consent order and
therefore could not challenge the same.

Similarly using the same analogy in the instant case, the fact that the
5th, 6th, 7th and 8th defendants are still the authorized representatives of
the plaintiffs then the plaintiffs have no locus standi to challenge the
orders of court. To decide otherwise would be to undermine the spirit
of O. 1 r 8 of the Civil Procedure Rules and reinstate the mischief it
was intended to solve.

I agree with the observation of Zehurikize J in Bako Abila Catherine

& 21 others Vs Attorney General & Kampala City Council HMA
0628 of 2009 which is still good authority to date that it has become
increasingly common that were numerous plaintiffs successfully sue
the Attorney General they tend to split at the execution level and
splinter groups end up instructing new lawyers for purpose of
recovering the amounts due to them. This is an abuse of court process
for part of the judgment creditors to raise new issues through the new
lawyers which is intended to perpetuate litigation with the attendant
costs.

Learned counsel for the plaintiffs seemed to suggest that a

representative in a representative suit has no authority to consent

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without the permission of the persons he/she represents. He also
appears to suggest that the representative order does not extend to
the taxation of costs stage. He further suggests that the persons on
whose behalf the representative brings the suit are not liable
whatsoever for the legal fees of the lawyer instructed by the
representative and calls the represented persons free riders who
should not carry the burden of lawyers’ legal fees. With due respect, I
disagree with the views expressed by learned counsel for the plaintiffs
in his submissions. I have clearly spelt out the reasons for this
position.

The Shell V Muwema case relied upon by learned counsel for the
plaintiffs did not lay down a principle that that the persons represented
in a representative suit must not pay legal fees. What the court meant
is that the other represented person cannot be made to pay legal fees
of the representative in so as to leave the representative with no
liability whatsoever in regard to the legal fees. In the Shell case the
company which instructed Mr. Muwema entered an agreement with
him privately but wanted to make the other represented companies to
incur the liabilities created in the agreement. The Supreme Court could
not allow that to happen since in my view would have been unjust and
a breach of the doctrine of privity of contract. The only way they could
be liable is if court so ordered as is in this case where court issued a
decree in the terms of the compromise order as to the
Advocates/Client Bill of costs and judgment on admission. The present
case is distinguishable from the Shell case. Whereas in a
representative suit the one persons who is named as plaintiff is, of

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course, a full party to the action, the others who are not named but
whom she/he represents are also parties to the action. They are all
bound in equal measure by the eventual decision in the case for the
reasons I have given. I will also find merit in this objection and I
accordingly uphold the objection.

4. Whether the suit is brought before the right forum.

Regarding this objection, learned counsel for the 4 th, 5th, 6th, 7th and 8th
defendants submitted that the orders which the plaintiffs seek to
challenge in this case are the compromise dated 31 st May 2013 with
respect to HCCS 967 of 2005, 760 of 2006 and 138 of 2008 which they
claim were unlawful and so should be set aside. They also seek that
the taxation order be set aside for being unlawful and the orders of
court in HCMA 234 of 2012 also be set aside on the same ground.

According to learned counsel all these were court decisions. He further

submitted that annexture ‘B’ to the plaint is a ruling in MA 234 of 2012
which is purported to be unlawful yet the same ruling is continuously
referred to as the judgment on admission by the plaintiffs. Learned
counsel also submitted that all the parties in that case who are the
defendants in this case save for the Attorney General were
interestingly heard and the court considered submissions of all parties
and made its decision as a partial fulfillment of the claims in HCCS No.
967 of 2005, 760 of 2006 and 138 of 2008.

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Learned counsel also submitted that the same court and the Judge
entered judgment in the terms of the compromise and issued a decree
by the same Judge in the same court under O. 25 r 6 of the Civil
Procedure Rules. That therefore this court is functus officio in all
these matters under litigation in this suit. Further that once a court
makes a decision it is functus officio and cannot nullify its earlier
decision by making a later decision. He relied on the case of Paul
Nyamarere Vs Uganda Electricity Board (in Liquidation) CA 55
of 2008 citing Kamundi Vs Republic 1973 EA 540.

Learned counsel for the 4th, 5th, 6th, 7th and 8th defendants also
submitted that bringing this suit seeking to quash decisions made by a
Judge amounts to inviting this court to sit as an appellate court in a
decision made by the same court which is highly irregular and
improper and is alien in the jurisprudence and should not be
sanctioned by this court. Further learned counsel submitted that under
S 66 of the Civil Procedure Act it is provided that unless otherwise
expressly provided in the Act an appeal shall be from decrees or any
part of the decrees and from the orders of the High Court to the Court
of Appeal. Therefore if at all the plaintiffs were aggrieved with the
contested decisions of this court they ought to have filed an appeal in
the Court of Appeal and not in this court. That this means that this suit
is in a wrong forum.

In reply learned counsel for the plaintiffs submitted that the

subsequent compromise order varied the original judgment and
effectively entered a fresh contract. That as a result of the fresh

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contracts, a new judgment replaced the earlier judgment and therefore
it is only the subsequent judgments that are to be enforced as per
Saroj Gandesha Vs Transroad Ltd CA 13 of 2009.

Learned counsel further submitted that the consents which came after
the judgment can be challenged because the court is not functus
officio on such.

First of all, I would like to disagree with the submission and attitude by
learned counsel for the plaintiffs that the concerned court order they
seek to challenge are mere agreements. Once a compromise or
consent is entered and the Court endorses the same, it becomes an
effective court order or decree. Although these compromises and
consents are treated as agreements they are in actual sense not mere
private agreements. They are orders of court and can be executed as
such. Therefore if they are to be challenged, the procedure through
which they can be challenged is laid down in the law.

I therefore agree with the submissions by the defendants (4 th to 8th)

that it would be highly irregular and improper for this court to quash
its own previous judgment in the way the plaintiffs suggest. It would
have the effect of this court sitting on appeal in its own decision. I also
agree that this court became functus officio once it endorsed the
consent agreements and passed the decree and order. See: Paul
Nyamarere Vs Uganda Electricity Board (supra)

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Once a compromise or consent is entered and the court endorses it the
same becomes effectively a court order or decree. Whereas consent
orders are treated as agreements, in actual sense they are not mere
private agreements. They are orders of court once endorsed and can
be executed as such. Therefore if they are to be challenged, the
procedure through which they are to be challenged is laid down in law.
After judgment is passed, one can appeal to the Court of Appeal under
S. 66 of the Civil Procedure Act or one can seek for a review of the
decision under S. 83 of the Civil Procedure Act in the same court but
not by filing a fresh suit. Alternatively one could seek the judgment to
be set aside under O. 9 of the Civil Procedure Rules.

In my career and experience, I have never handled or come across a

suit filed for one of post judgment corrective remedies envisaged by
the law.

Therefore, for the reasons I have given, I will find merit in this
objection. This suit has been filed in a wrong forum and wrongly too.

5. Whether the plaintiffs brought this matter through the right

procedure?

On this issue, learned counsel for the defendants submitted that this
suit is in fact an appeal disguised as a suit. That the procedure of filing
an appeal is by way of a Notice of Appeal under rule 76 of the Court of
Appeal Rules and not by ordinary plaint. Therefore this suit is
incompetent, untenable and should be dismissed with costs because

22
the procedure adopted is unprecedented. That the Attorney General is
not a party to this suit and therefore any outcome from this suit would
not bind him. Further that the decree and orders have been
substantially executed. That under paragraph 6(g) of the plaint, the
plaintiffs contest future pension and/or lumpsum payment which is
none-existent and is speculative.

Learned counsel further submitted that under the compromise which is

annexture ‘C’ to the plaint paragraph 14(ii), it was only provided that
the parties shall engage with each other to reach an agreement on
lumpsum payment and there is no evidence of such agreement or
engagement. That this means that his suit is moot and
inconsequential.

In reply learned counsel for the plaintiffs submitted that the objection
of the defendants is a misapprehension of the cause of action. That the
suit is not an appeal disguised as a suit. That the procedure adopted of
suing by plaint is not unprecedented because it is a default procedure
for filing suits. Further learned counsel reiterated that an aggrieved
third party has many options including the option of filing a fresh suit.

As I have already held earlier, once a compromise or consent is

entered and endorsed by court, the same becomes a court order or
decree. They can thus be executed as such. Therefore if the decree or
orders are to be challenged, the procedure through which they are to
be challenged is laid down in the law. I do not agree with the
submission that a person who seeks to challenge a consent order can

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adopt whichever procedure they fee desirable to them. If it is a
taxation order the procedure for challenging the same is clear. An
appeal to the High court is in order. If it is a compromise then an
application for review setting aside arising from that will be in order
too. This would enable the court to handle the case with the files from
which the orders were made available to it. However a fresh suit
complicates the whole process as it will have a distinct and separate
file independent from all the files complained about. It also leads to
misjoinder of causes of action which should ordinarily be handled
separately. For example a taxation order and compromise order which
were made on separate days and one before the Registrar and the
other before a judge are challenged in the same suit. The Supreme
Court case of Ladak Abdullah (supra) did not give parties liberty to
choose whichever procedure a party wishes to use. In fact in the
judgment attached to counsel for the plaintiff’s submissions at P. 12
the court stated that:-
“It may be that in a suitable case a third party can apply
for review ………..but he can bring objection proceedings
against execution or bring a fresh suit, or file an
application to set aside the decree order” (emphasis mine).

Clearly the key phrase in the quote is “in a suitable case”. Therefore,
the Supreme Court in that case held that each of the procedures listed
must be adopted in a suitable case. In fact the Supreme Court in that
case suggested that the best procedure for challenging a consent order
entered by a Registrar is an application to have it set aside. If learned
counsel had followed this authority, we would not have had these

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objections. Likewise, I will uphold this objection and find that the
plaintiffs did not bring this matter through the right procedure.

Having upheld all the objections, I hereby hold that this suit is
incompetent and is accordingly struck out with costs.

Stephen Musota
JUDGE
27.10.2016

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