East African General Insurance Co. Ltd v East African General Insurance Co. Ltd and Others (Civil Application No. 2/2002) [2002] UGSC 56 (27 March 2002)

, INT HE SUPREIVI EC OI.IRT OF UGA NDA ATM ENGO o BEFOltl::HON ruSTICE G'W KANYEIHAMBA ' J S'C' CI\1L ^4,PPLIC.{TION NO. 2/2002 .{RISING OUT OF COURT OF.{PPEAL CI\'L.{PPE.{L NO.26 OF 2OOI AND REL.{TED .A.PPLICATION NOS. IZ,I3,I,4,I7 AND 30 OF 2OO2 AND HIGH COURT CIViL STIIT NO. I73 OF 2OOO AND RELATED APPLIC.{TIONS NO. 1852 '{ND NO' lS73 0F 2000' BETWEEN EAST AFRICAN GENERAL INSURANCE C REPRESENTED BY I\,1/S KATENDE & O. LTD SSEMPEBWA & CO I'T APPLICANT O ADVOCATES AND EAST AFRICAN GENERAL INSURANCE CO. LTD REPRESENTED BY TWS SEBALU & LULE & . CO ADVOCATES :::::::'::::"::::: : ::: '::: ::: : :ISr RESPONDENT ATTORNEY GENERAL:: :2M RESPONDENT h/US SAM K NJUBA ADVOCATES ::2M APPLICANT REPRESENTING CERTAIN APPLICATION SHARES IN THE APPLICANTS THE REPUBLIC OF UGANDA 1 o o RUL ING OF THE C URT: This is an appticatron by rvay of motion under rule 4l of the Rules ofthis court. 1966. The applicant seeks an order from this court to amend the judgment dated 6s day of December' 2001 brought before m1' brother, Hon Justice Oder, J S'C ' as a single judge of this court and agreed to and signed bl counsel representing all the parties The application seeks that the said consent judgment be amended in its clauses (c), and (d)' tn order to reflect the desire expressed b1' the majorit-v post 1972 EAGEN shareholders as contained in their resolutions ( c), (d) and (e) passed at their general meeting held on I 8. I 2 200 I . The applicant also asked that there be no costs follorving the disposal of this aPPlication Mr Muliibi' holdrng a bnef for Sam Njuba appeared for the l"d applicant and Prol Ssempebrva and Mr' Katende represented the l'' applicant rvhile the Afiornel' General was represented b1' Mr' Masiko- learned Principal State Attorne)' The application rvas supported b1 the affidavit of Haji Lubega Kaddanabbi and opposed b1' that of Maria Wamala.Alittlemorewillbesaidaboutthesenvoaffidar'its'laterinthis ruling. Prof. Ssempebrva raised a preliminary objection He contended that, this court has no junsdiction to hear an application seeking to var)' a consent judgment entered into and approved b1' another single ludge' Both Prof. Ssempeb*'a and Mr' Katende respectivel!' made submisslons on lack ofjurisdiction ofthis court J o o Having given the background to the consent .ludgment, Prof. Ssempebrva contended that any'part-v rvishing to challenge a consent judgment approved by a single judge of this court can onlv do so b1' maliing a reference to a panel of three justices in accordance rvith the rules of court. counsel cited s. 9 (2) of the Civil Procedure Act and Rule 5l (l) (b) of the Rules of this court. Mr. Katende submitted further that the .yurisdiction of the court is onll' granted by statute as amplified b}' the rules and therefore the application rvas incompetent. Having heard Counsel for both parties and revies'ed the las applicable, I sas satisfied that the application uas improperll'before me I therefore dismissed it rvith costs to the applicant represented by tWs Katende and Ssempebrva & Co. Advocates. I intimated that I rvould give reasons at a date to be notified to the parties. I do so nos RE.{SONS: In m1' opinion, rvhere a consent judgment agreed to b1' all the parties to it and entered into court and approved b1'ajudge ofthis Court- in this case, rny learned brother, Justice Oder J S.C. it is not permitted for another single ;udge to vary that consent judgment It is also m1 opinion that it rvould not be possible for the single judge rvho approved the consent ludgment to do so especialll' rvhere one or more of the parties to that consent judgment objects to the variation or amendment. Mr Mukiibi for the 2nd applicant disagreed *'ith the submissions of prof. Ssempebrva and Mr. Katende. He contended that Rule 53 of the Rules of this Court gircs the jurisdiction to van' a consent judgment approved by a single.;udge. Mr. Masiko chose not to address court' .1 o o The submission by learned counsel for the 2nd applicant that Rule 53 ( I ) of the Rules of this court gires jurisdiction to this court is, in m1' opinion, untenable Rule 53 ( I ) provides, "(l) on order made on an application heard b7'a single ludge nta't he taried or rescinded bv that .ludge or any Judge of the court or threeludges o/'that court on the application ofany person a/fecred br the order. rJ (q the order v'as one extendrng the time _/br elotng an act. otheru,tse than to a speciJic date, or (b) the order v;as one pernttting the doing of some ac't. v'ithout specif ing tlte date bl'u'hich lhe act u'as to he done. and that the person ott v'lnse appltcattrn the order u'as made has .failed to shou' reasonohle diligence in the ntatter. k) ,4ny order ntade on an application to the court nov similorly he varied or resc'inded by the court. " And Rule 5l (l ) of the Rules ofthis Court provides, " l{here under suhseclton (21 oJ secrion 9 oJ the.ludicature Stctttttc. 1966. any person |t'ho is dissatis/ied v'ith the decision oJ'a sinpile .ludge oJ'the court h) (b1 in any civil maiter v'ishes to have any order. direction or dectstort oJ'a stngle jungle. discharged or reversed by the ctturt, the applicant nav applv'Jbr it infornrully to the.ludge at the tinrc u,hen the discretion is 51iwn, or by'writing. to the Registrar within seyen days olier that date. Clearll'. none of the provisions of this rule applies to the lacts and circumstances of the application before me On the other hand, s.9 (2) ofthe Judicature Statute, 1966 provides. ",4nv person dtssatisJied v'ith the dectsiott of a single./ustic'e tn tltc exercise ofa pov'er under subsection (l), is entitled to have tlte nratter deterntined h't'a bench oJ three./u.sttces o/ the Supreme ('ourt u'hich nrav con/irm, vam' or rererse the dec'ision. " At the hearing bv three,ludges oJ the ('ourt o/ un applrcatton previously decided by'a singleludpie. no addiltonal cvidence shall be adduced except v'itll lhe leove of the court." The affidar.its of both, Haji Lubega Kaddunabbi for the l*' applicant and Maria Wamala for the ?nd applicant, did not compll * ith rule 5l (2) of the rules of this Court. In anv event, it is clear from both provisions of the statute and of rule 5l (b) that this court consisting ofa single judge has no jurisdiction to hear and determine this application. It rvas for these reasons, that I dismissed the application rvith costs. o Dated at lr{engo this.)*.7. 6 [Wu.olu Da1'of 002 E YEIHAMBA JUS OF E SI]PREI\IE COTIRT o l