Wakilii

Mugerwa v Lubega and Another (Civil Miscellaneous Application No. 318 of 2021)

High Court · [2021] UGHCLD 121 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review and set aside a consent order arising from civil suit for trespass
Decision
Application dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application to set aside a consent order entered by duly instructed counsel must fail where the order has been fully executed. The surveyor had been appointed, the survey conducted, and the report filed before the application was brought. The court is barred by section 7 of the Civil Procedure Act from trying any issue directly and substantially in issue in a former suit between the same parties that has been finally determined. An order seeking to set aside an already executed order would be made in vain.

Outcome

Application dismissed with costs

Facts

The applicant, registered owner of land comprised in FRV 1342 Folio 18 Busiro, sought to set aside a consent order dated 13th October 2020 for a joint survey of suit land. The consent had been entered by counsel Wetaka Andrew, who was holding brief for counsel Musa Luwambya. The applicant claimed Wetaka lacked proper instructions. The 1st respondent had filed a trespass action against the applicant but later withdrew it. The 2nd respondent was added based on the applicant's counterclaim. Following the consent order, the Deputy Registrar appointed a surveyor who conducted the survey on 26th February 2021 and filed a report on 15th March 2021. The application to set aside the consent was filed on 24th February 2021, after the survey had been conducted but before the report was filed.

Issues

  1. Whether a consent order entered by counsel holding brief without specific instructions can be set aside.
  2. Whether a consent order that has been fully executed can be reviewed and set aside.
  3. Whether the court is barred by res judicata from trying an issue already determined.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Consent Orders — Setting Aside — Executed Orders
A consent order that has been fully executed cannot be set aside, as an order seeking to set aside an already executed order would be an order made in vain.
Res Judicata — Section 7 Civil Procedure Act
Under section 7 of the Civil Procedure Act Cap. 71, the court is barred from trying any issue which has been directly and substantially in issue in a former suit between the same parties and has been finally determined.
Consent Orders — Instructions to Counsel — Holding Brief
Where counsel has been duly instructed to represent a party and those instructions have never been withdrawn, a consent order entered by that counsel while holding brief for another advocate is binding on the party, even if the counsel was appearing for the first time.

Legislation cited (1)

Full judgment

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Mugerwa_v_Lubega_and_Another_(Civil_Miscellaneous_Application_No._318_of_2021)_[2021]_UGHCLD_121_(8_June_2021)
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.