Wakilii

Mukama v National Housing And Construction Corporation (Civil Suit No. 794 of 1999)

High Court · [2001] UGHC 7 · 2001 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of consent judgment under sections 101 and 83(b) of the Civil Procedure Act, section 35 of the Judicature Statute, and Order 42 rule 1(b) of the Civil Procedure Rules
Decision
Consent judgment partially reviewed and varied by striking out illegal provisions relating to criminal prosecution, while upholding monetary settlement terms

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A consent judgment provision requiring the plaintiff to withdraw criminal charges against the defendant is illegal as it usurps the powers of the Director of Public Prosecutions under Article 120 of the Constitution. A court cannot sanction what is illegal. The consent judgment was reviewed and the illegal provisions relating to the criminal case were struck out, but the agreement for payment of Shs. 23,000,000 in settlement of the civil claim was upheld.

Outcome

Consent judgment partially reviewed and varied by striking out illegal provisions relating to criminal prosecution, while upholding monetary settlement terms

Facts

George Mukama sued National Housing and Construction Corporation in Civil Suit 794 of 1999 claiming Shs. 32,350,000. The parties entered into a consent judgment on 4 September 2001 whereby the defendant agreed to pay Shs. 23,000,000 to the plaintiff in settlement, and the plaintiff agreed to withdraw all criminal charges against the defendant in Buganda Road Court Criminal Case No. 1079 of 2001. The defendant subsequently applied for review of the consent judgment. At the time of the consent, the defendant had newly engaged Counsel Kiboneka after previous Counsel Mutaawe withdrew due to likely being called as a witness. Kiboneka had requested and obtained an adjournment to study the case details before the consent was recorded.

Issues

  1. Whether a consent judgment is binding on parties and can be varied or set aside.
  2. Whether parties to a civil matter can consent to compromise prosecution of a criminal case.
  3. Whether the consent was entered into without sufficient material facts or in misapprehension or ignorance of material facts.
  4. Whether the consent judgment is contrary to the policy of the Court.

Orders

  • The consent judgment is partially reviewed.
  • The provisions relating to the criminal case at Buganda Road Court are struck out from the consent judgment.
  • The defendant shall pay the plaintiff Shs. 23,000,000 in full and final satisfaction of the plaintiff's claim, payable on or before 4 October 2001, whereupon the plaintiff shall relinquish all claims to the land in dispute.
  • Each party shall bear its own costs.
  • By this decree each party has indemnified the other of all civil claims it may have had against the other in respect of the suit property.
  • Each party to bear own costs of the review application.

Rules and key headnotes

Civil Procedure — Consent Judgments — Binding Effect — Grounds for Setting Aside
A consent judgment entered in the presence and with the consent of counsel is binding on all parties and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the Court, or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or for a reason which would enable the Court to set aside an agreement.
Criminal Law & Procedure — Director of Public Prosecutions — Powers — Usurpation by Private Agreement
Parties to a civil matter cannot consent to compromise prosecution of a criminal case, as such an agreement usurps the constitutional powers of the Director of Public Prosecutions under Article 120 of the Constitution and constitutes an illegal contract.
Statutory Interpretation — Illegality — Court's Duty — Overriding Effect
A court of law cannot sanction what is illegal, and illegality once brought to the attention of the court overrides all questions of pleading, including any admissions made.
Civil Procedure — Consent Judgments — Partial Review — Severability of Illegal Terms
Where a consent judgment contains both lawful terms and provisions that are illegal, the court may review the consent judgment partially by striking out only the illegal provisions while upholding the valid portions.

Legislation cited (5)

Cases cited (5)

  • Ismail Sunderji Hirani v Noorali Esmail Kassam (1952) 19 EACA 31
  • Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266
  • Kamanzi & Others v Nkambwe & Others [1978] HCB 105
  • Windhill Local Board of Health v Vint (1890) 45 Ch.D. 351
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Mukama v National Housing And Construction Corporation (Civil Suit No. 794 of 1999) [2001] UGHC 7 (19 November 2001)
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.