Experience has taught me that when youre preparing notes for your submissions, its never a good idea to rely on the strength of just one precedent without bothering to look at anything else outside its scope -especially if the precedent originated from any one of the several divisions of the High-Court. Because the principle of stare-decisis which distinguishes us from other civil law systems like Rwanda and Burundi doesnt seem to apply in that Court ...!!! I mean, at the start of this week, i was tasked to prepare submissions to counter an Application for an Order committing the Respondent to civil prison following his willful failure to obey an Order arising from a Consent Judgment to which he wasnt a party to the original consent agreement. So after browsing the entire cyber universe for an authority to support my hypothesis that Consent Judgments cant be enforced against third parties, i discovered two interesting High Court decisions with very identical facts. But with entirely differing conclusions. Yet both judgments were delivered just six days apart from each other. And the nerve deadening shock from it struck me like an on-coming truck (like for realz). On 08th November, 2013 Justice Christopher Madrama Izama in the case of Shumuk Springs Development Ltd & 3 others vs. Ssempebwa & 2 others in HCMA No. 502 of 2013 held (in very clear language) that: a consent order cannot form the basis of any subsequent claim against a Defendant who was not a party to the original suit where the consent order was granted. Because a consent agreement is an agreement of the parties subject to the same principles of the law of contract thus only enforceable between the parties to the agreement .... And then just six days later after that (^^^) on the 14th day of November, 2013 Justice Bashaija K. Andrew in the case of George William Kateregga vs. Commissioner for Land Registration & 12 others in HCMA No. 347 of 2013 went on to state that: A consent judgment is a judgment entered on agreement of the parties, 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, it becomes a judgment of the Court. That therefore even if parties other than the Applicant crafted a consent agreement ...which was sanctioned in Court, it necessarily became judgment of the Court. The effect was that anyone would be bound by it notwithstanding the fact that they were not privy to the consent agreement or suit; which renders the judgment in that case a judgment in Rem ..... Hmm, *slumps over his desk* in despair. But think i should just go with Justice Madramas holding and ignore Bashaijas ruling as an incidental expression of dissent on the matter. But not essential to the overall re-instatement of the true position of the law ....# Obiter Dictum!!!
Posted on: Thu, 04 Sep 2014 08:01:21 +0000
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