THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 386 OF 2018
(Arising from Ciuil Appeal No. 40 of 2004 and H.C.C.S No. 1 19 of
leee)
YAHAYA WALUSIMBI ::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
1. JUSTINE NAKALANZI
2.LEVI LIryOMBYA
3. RUTH NAMUSISI
4. ROBINSON ABRAHAM KITENDA :;:::: ]:]:::::: RESPONDENTS
5. JOSEPH MUKASA
(Adr rtirtistrut<;rs of ll Le Es LaLe
of Late Erisa t\Lusoltc)
CORAM: HON. JUSTICE KENNETH KAKURU, JA
HON. JUSTICE STEPHEN MUSOTA, JA
HON. JUSTICE CHRTSTOPHER MADRAMA, JA
RULING OF COURT
The applicant brought this application by way of notice of motion
under Rules 2(2) and 43 of the Rules of this Court for;
1. An order that the judgments in HCCS No. 119 of 1999 and
Court of Appeal Civil Appeal No. 4O of 2OO4 be set aside and the
head suit be dismissed.
2. In the alternative, an order for retrial of the head suit in the
High Court.
3. Costs of this application, court of Appeal in Civil Appeal No. 40
of 2Ol4 and in the High Court Civil Suit No. 119 of 1999 be
provided for.
Page 1 of 7
The grounds upon which this application is premised as set out in
the notice of motion are that;
1. This application arises from the decision of this court delivered
on 26-ll-2004 in Civil Appeal No. 40 of 2OO4 which upheid the
decision of the High Court, dated 05-05-2003 in Civil Suit No.
119 of 1999 which resolved the suit in the favour of the plaintiff.
2. T}:.e plaintiff rvas Jackson Kikayira suing as administrator of the
estate of late Erisa Musoke and the defendants were the
applicant as the l"tdefendant and Rose Nalubega as the 2nd
defendant.
3. Rosemary Nalubega is a granddaughter and administrator of
the estate of the Late Lukanika who was the proprietor of the
suit land Kibuga Block 5 plot 584 at Mulago-Kalerwe, Kampala
District.
4. Rose Nalubega sub-divided the above stated plot 584 into plots
1120 and 1121 and sold the former plot to the applicant and
retained the latter, the residue plot 1121.
5. The plaintiff sued the defendants to recover from them the suit
land on the basis that it was part of what late Erisa Musoke had
bought from late Tito Lukanika on an agreement dated 22-03-
1932, that the said vendor and purchaser died before the land
was transferred to the latter and yet the defendants transacted
on it to the detriment of the estate of the late Erisa Musoke.
6. After the judgments in the High Court and Court of Appeal were
passed, the applicant discovered that the said 1932 sale
agreement for sale of 6.33 acres, which both courts based upon
to make their decisions in favour of the plaintiff was forged,
written long after the alleged vendor late Tito Lukanika had died
before 26.1.).924 and by then he only had 3.84 acres.
7. Tbe plaintiff together with the 2"d respondent herein were
charged and prosecuted at Buganda Road Chief Magistrate's
Court for forgery and uttering false documents in court as
exhibits in High Court Civil Suit No. 119 of 1999 and on 19-4-
2016, they were convicted of uttering a false document; the said
sale agreement.
Page 2 of 7
8. That earlier before the decision in HCCS No. 119 of 1999 was
delivered, the 2"d respondent and others had filed Civil Suit No.
1343 of 1999 in the same court before Justice P. Tabaro who
decided the issue of ownership through the court's appointed
arbitrators Award in favour of the defendants as proprietors of
the suit land and plaintiff thereof as tenants.
9. That the said Arbitrators'Award signed by the parties thereto
determined the terms and conditions governing the relationship
between the landlords and the tenants and their respective
lawyers.
10. That the decision in HCCS No. 1343 of 1999 and the
Award made res judicata the proprietorship of the suit land in
favour of the defendants as landlords and the plaintiff and his
other relatives claiming under the estate of Late Erisa Musoke
as tenants but the parties lawyers in the High Court as well as
in Court of Appeal did not, through negligence or by oversight,
bring to the attention of the trial court and Court of Appeal the
Iegal consequence of results in HCCS No. 1343 of 1999 and the
Award, and this omission should not be visited on the applicant.
1 1. After the judgment in the Court of Appeal was passed, the
plaintiff in Civil Suit No. 119 of 1999 was replaced by the
respondents in this application as administrators of the estate
of the late Erisa Musoke and he later died.
1.2. The applicant contends that the judgments in Civil Suit
No. 1 19 of \999 and of this court in Civil Appeal No. 4O of 2OO4
are null and void on grounds of;
i) Forgery of the 1932 agreement which was discovered after
judgments were passed.
ii) The suit land ownership being Res judicata, since
proprietorship thereof was earlier resolved by the same
court in High Court Civil Suit No. 1343 of 1999 in favour
of the defendants.
iii) This honorable court is vested with inherent power to set
aside judgments which have been proved null and void
after they have been passed.
PaBe 3 of 7
The application is supported by the affidavit of the applicant. The
respondent filed an affidavit in reply deposed by Levi Luyombya.
At the hearing of this application, Mr. Eic Muhwezi appeared for the
applicant while Mr. Augustine Kibuuka Musoke appeared for the
respondent.
Applicant's arguments
It was submitted for the applicant that after dismissal of Civil Appeal
No. 40 of 2OO4, he realized that the impugned agreement may not be
authentic and he reported the matter to police to investigate the said
document. The police engaged a handwriting expert whose findings
showed fraud tainting the impugned agrccmcnt. This information
proved that the late Tito Lukanika was dead by the year 1924 and
could not have sold to the late Erisa Musokc in 1932. After the
judgments had becr-r delivcrcd, there was discovercd ncw evidence to
show that the crucial document (exhibit P2) which was relied on in
the lower court was subsequcntly fourrd tu have been forged.
Counsel relied on Rule 2(2f of the Rules of this Court which provides
that r-rothing shall be taken to limit or othcrwise affect the inherent
powers of this court to make such orders as maybe necessary for
attaining the ends of justice or to prevent abuse of the process and
that such power shall extend to setting aside judgments which have
been proved null and void. He also relied on the Supreme Court
decision in Orient Bank Ltd vs. Fredrick Zaabwe and another
S.C.C.A No. 17 of 2OO7 that a judgment obtained by fraud ought to
be set aside.
Respondent's arguments
In reply, counsel for the respondent submitted that fraud cannot be
proved by affidavit evidence and there should be finality to litigation.
He submitted that the applicant has filed similar applications in this
court before and they have been dismissed. He prayed that this
application be dismissed with costs.
Page 4 of 7
Court's Resolution
We have carefully considered the submissions of both counsel as weil
as the pleadings on record.
The applicant in this application asks this court to set aside its own
judgment in Civil Appeal No. 40 of 2OO4.
The brief background to this application is that one Jackson Musoke
Kakayira filed the original suit No. 1 19 of 1999 in the High Court as
one of the beneficiaries of the estate of his late father, Erisa Musoke.
The late Erisa Musoke had bought a piece of land measuring 6.33
acres from the late Tito Lukanika situate at Kalerwe, Gayaza road.
After executing the sale agreement, no transfer was effected in the
names of Erisa and as such, he lodged a caveat on the title of the late
Tito to protect his interest. When Erisa died, his son, the 2"d
respondent, lodged further caveats to protect the estate of the
deceased.
ln \994, one Rosemary Nalubega, a granddaughter to the late Tito
Lukanika, got letters of Administration and sold part of plot 584 to
Yahaya Walusimbi aftcr rcmoving the caveats. The trial Judge found
fraud on the part of the applicant and entered judgment for the
respondents. The appiicant filed an appeal to this court and the
appeal was dismissed with costs. The applicant now filed this
application seeking this court to set aside its own judgment on
grounds that there is important evidence that has been found and
would impact the court's decision on the mater. He filed this
application under Rule 2(2) of the rules of this court which states
that;
"(2) Nothing in these Rules shall be taken to limit or otherwise
affect the inherent poLuer of the court, or the High Court, to make
such orders as maA be necessary for attaining the ends of justice
or to preuent abuse of the process of ang such court, and that
power shall extend to setting aside judgments uhich haue been
proued null and uoid afier they haue been passed, and shall be
exercised to preuent abuse ofthe process of ang court caused by
delag."
Page 5 of 7
Whereas this court is empowered under Rule 2(2) of the rules of this
court above to make such orders necessary to meet the ends of
justice, this power only extends to judgments proved to be null and
void after they have been passed. Both the trial court and the court
of appeal made their decisions based on the existing evidence
presented to court at the time and the discovery of new important
evidence cannot be a ground for setting aside judgment of this court.
Counsel relied on the Supreme Court decision in Orient Bank Vs
Fredrick Zaabwe and another Civil Application No. 17 of 2OO7
which we find distinguishable from this case. In Orient Bank vs
Fredrick Zaabwe (supra), the issue was procedural as to the
judgment of the High Court because the Honourable justice had
retired so the issue was whether it was null and void because it was
signed by a judge u,ho had retired. The learned justices of the
Supreme Court held that;
"Like this court's predecessor said in Liuingstone Sewangana Vs
Martin Aliker (supra), "we [too] tuould not hesitate [by order] to
set aside [our] judgment based on fraud under our inherent
pouters". Howeuer, we hasten to add that before exercisirug that
pou)er to make such order, we would haue to be satisfied onthree
conditions; namely that the fraud is proued stictlg, that the
judgment is based on that fraud and that the order is necessarA
either for achieuing the ends of justice or preuent abused of court
process. "
In the present case, there is no fraud proved in procuring the
judgment in this court. The fraud the applicant is alleging is that
there were material facts attributable to people who have since
passed away. This alleged fraud has not been proved and cannot be
proved by affidavit evidence. Ideally, the parties would have to apply
to adduce fresh evidence which we think will meet the ends of justice
if adduced in the trial court and not this court. In the premises, this
application to set aside the judgment in Civil Appeal No. 40 of 2OO4
cannot succeed. It is accordingly dismissed with no order as to costs.
Since the appeal in this court was dismissed, effectively the High
court judgment remained intact. The applicant is at liberty to apply
Page 6 of 7
to set aside the judgment and decree and re-hear the matter in
respect only of the fresh evidence.
We so order.
t1-
Dated this ?O day of 2019
Hon. Justice Kenneth Kakuru, JA
r)
@/'"n[u'r''/
Hon. Justice Stephen Musota, JA
n. Justice Christopher Madrama, JA
PaBe 7 of 7
