Wakilii

Nantumbwe & 3 Others v Kuteesa (Civil Application No. 294 of 2013)

Court of Appeal · [2013] UGCA 23 · 2013 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the full Court to set aside an order of the Registrar which had set aside a consent judgment, where applicants sought to withdraw the application to revive that consent judgment
Decision
Application for withdrawal disallowed; application struck out; the consent judgment of 21 January 2013 struck out as a nullity

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Holding

The Court declined to permit withdrawal of the application because doing so would revive an illegal consent judgment. It held the consent judgment entered before the Registrar was a nullity: there was no pending appeal, the Registrar lacked jurisdiction to finally dispose of an appeal, and parties cannot by consent confer jurisdiction that does not exist. The consent was further invalid because it purported to bind a non-signatory plaintiff and the Commissioner for Land Registration, determined issues of law, and would reverse the High Court decree without hearing the appeal. An appellate court will not allow an appeal by consent. The application for withdrawal was disallowed, the application struck out, and the consent judgment struck out.

Facts

The respondent and a co-plaintiff sued the applicants and others in the High Court (Civil Suit No. 95 of 2009) over land at Makerere. Judgment was entered ex parte against the applicants, and their application to set it aside was dismissed. The applicants filed a notice of appeal and applications for stay; a related application to serve a notice of appeal out of time was dismissed by an Assistant Registrar, and a reference against that order remained undecided. While that reference was pending, the parties entered into a consent judgment endorsed by the Registrar on 21 January 2013, under which the applicants would pay UGX 500,000,000 and the respondent's title would be cancelled. Following a complaint that the consent was illegal, the Registrar set it aside. A single Justice held he lacked jurisdiction to set aside a consent judgment. The applicants then applied to the full Court but sought to withdraw the application to revive the original consent judgment.

Issues

  1. Whether the Court should allow the parties' joint application to withdraw the application so as to revive a consent judgment entered before the Registrar.
  2. Whether a Registrar of the Court of Appeal had jurisdiction to enter a consent judgment where no appeal was pending before him.
  3. Whether parties may by consent reverse a decision of a lower court, determine issues of law, or bind a non-party to the consent.
  4. Whether an appellate court may allow or settle an appeal by consent without hearing it.

Orders

  • The application for withdrawal is disallowed.
  • This application is hereby struck out.
  • The consent judgment entered into by the parties before the Registrar of this Court on 21st January 2013 is hereby struck out.
  • No order is made as to costs.

Key headnotes

Civil Procedure — Withdrawal of Applications — Court's Discretion to Refuse Where Withdrawal Would Validate an Illegality
A court may decline to grant a consensual withdrawal of an application where granting it would have the effect of reviving or validating an illegal consent judgment.
Civil Procedure — Jurisdiction of the Registrar — No Power to Finally Dispose of an Appeal or Enter a Consent Judgment
A Registrar of the Court of Appeal has no jurisdiction to hear and finally dispose of an appeal, and a consent judgment entered by a Registrar where no appeal or application is properly pending before him is a nullity for want of jurisdiction.
Civil Procedure — Consent Orders — Parties Cannot Confer Jurisdiction or Determine Issues of Law by Consent
Parties cannot by consent confer upon a court a jurisdiction it does not otherwise possess, nor can they by consent reverse a decision of a lower court or determine issues of law; only an appellate court can reverse a decision after hearing the appeal.
Civil Procedure — Consent Orders — Cannot Bind a Non-Party or Non-Signatory
A consent judgment cannot bind or direct a person who is not a party or signatory to it, including a co-plaintiff who did not sign and a public officer such as the Commissioner for Land Registration who was a party below but not party to the consent.
Civil Procedure — Appeals — An Appellate Court Will Not Allow or Settle an Appeal by Consent Without Hearing It
An appellate court will not allow an appeal by consent, as doing so would reverse the decision below without hearing the appeal; an appeal may only be dismissed or withdrawn by consent.
Civil Procedure — Illegality — Court Cannot Allow an Illegality to Stand Once Brought to Its Attention
Once an illegality is brought to the attention of the court, it cannot be allowed to stand, and the court will not lend its process to enforce a consent judgment tainted by illegality.

Legislation cited (6)

  • Rules of the Court of Appeal r.2(2)
  • Rules of the Court of Appeal r.5
  • Rules of the Court of Appeal r.43(1)
  • Rules of the Court of Appeal r.43(2)
  • Rules of the Court of Appeal r.44(1)
  • Rules of the Court of Appeal r.94(1)

Cases cited (12)

  • Gatete and Another v Kyobe (Civil Appeal No. 7 of 2005)
  • Manitoba Windmills versus Vigier [1909] 18 Man LR.427
  • Foster vs Usher Wood [1877] 3 Ex D1
  • Re: Aylmer Exp. Bischoftsheim [1887] 20 QB 258
  • HINDE versus HINDE [1953] 1 ALL ER. 171
  • Hirani versus Kassim [1952] 19 EACA 131
  • Attorney General and Uganda Land Commission v Kamala and Another (Civil Appeal No. 8 of 2004)
  • Slaney versus Keane [1970] Ch 243
  • Konde v Nankya (Civil Appeal No. 7 of 1980)
  • Lees versus Motor Insurers' Bureau [1953] W.L.R. 620
  • Lloyd versus Rossleigh Ltd [1961] R.V.R.448
  • His Eminence Emmanuel Cardinal Nsubuga versus Makula International 1982 HCB P.11
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.