Wakilii

Bulasio Konde v Bulandina Nankya & Anor [1981] UGSC 1

Supreme Court · 1981 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order setting aside a consent order; the appellant sought to have the appellate court enter a fresh consent order reinstating the set-aside consent judgment.
Decision
Appeal dismissed with costs; the High Court order setting aside the consent order stands.

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Holding

The court refused to record a consent order reversing the High Court's decision, holding that an appellate court cannot allow an appeal by consent without hearing it, as that would reverse a lower court's judgment merely on the parties' agreement. Issues of law cannot be the subject of consent orders, and the proposed settlement was illegal because it perpetuated a fraudulent grant of letters of administration and purported to alter the statutory distribution under section 28(1)(c) of the Succession Act, which entitled the deceased's sole dependant to 99% of the estate. As the appeal could not be argued, it was dismissed with costs.

Facts

Erina Namirembe, a wealthy woman, died intestate in 1977 leaving an estate and survived only by her elderly mother (the 1st plaintiff), her sole dependant, who under section 28(1)(c) of the Succession Act was entitled to 99% of the estate. The defendant, claiming to be the deceased's step-brother, obtained letters of administration in January 1978 without disclosing the mother's status, contrary to sections 201, 202 and 246. The plaintiffs sued to revoke the grant; the court appointed the Administrator General to administer pendente lite and restrained the defendant, who refused to comply and continued to intermeddle with the estate. In June 1979 counsel for the parties recorded a consent order reversing the High Court, restoring the defendant as administrator and giving the mother only 12% of the estate. The High Court (Khan, Ag. J.) later set that consent order aside. The defendant appealed and sought to have the appellate court enter a fresh consent order reinstating the original consent judgment.

Issues

  1. Whether an appellate court may allow an appeal by consent of the parties without hearing it.
  2. Whether issues of law may be determined by a consent order.
  3. Whether the court could record a consent order that altered the statutory distribution of an intestate estate under section 28(1)(c) of the Succession Act.

Orders

  • Appeal dismissed with costs.

Key headnotes

Civil Procedure — Appeals — Consent Orders — Allowing an Appeal by Consent
An appellate court cannot allow an appeal by consent of the parties without hearing it, because doing so would reverse the decision of the court below merely on the agreement of the parties and without considering the case.
Civil Procedure — Consent Orders — Issues of Law
Issues of law cannot be the subject of a consent order; the law is a matter for decision by the court after considering the case and not for agreement between the parties.
Civil Procedure — Settlement — Conduct of Counsel
A settlement is binding only where agreed by both counsel in consultation with their clients; it is a wrong practice for counsel to compromise a case by bargaining with the litigants of the opposing side without the knowledge of the counsel representing them.
Succession & Estates — Letters of Administration — Priority of Grant
Letters of administration must be granted to the person entitled to the greatest proportion of the estate in priority to other relatives under sections 201 and 202 of the Succession Act, and a grant obtained without disclosing a sole dependant entitled to a greater share is contrary to those provisions.
Statutory Interpretation — Consent Orders Contrary to Statute — Distribution of Intestate Estate
A court cannot record a consent order that alters the statutory distribution of an intestate estate; an order distributing the estate contrary to section 28(1)(c) of the Succession Act would amount to the court altering statute law and is illegal.

Legislation cited (7)

  • Succession Act s.28(1)(c)
  • Succession Act s.201
  • Succession Act s.202
  • Succession Act s.218
  • Succession Act s.246
  • Succession Act s.265
  • Succession (Amendment) Decree 1972

Cases cited (3)

  • Lees v Motor Insurers' Bureau [1953] 1 WLR 620
  • Lloyd v. Rossleigh Ltd. (1961) R.V.R.448
  • Slaney v Kean [1970] Ch 243
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.