Wakilii

Nakubulwa and 2 Others v Kagere (Miscellaneous Application 190 of 2022)

High Court · [2023] UGHCFD 70 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review and setting aside of consent order extracted in Miscellaneous Appeal No. 620 of 2021
Decision
Consent order set aside as void and a nullity; matter to proceed as if consent order never existed

Observed later treatment

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Holding

A consent order extracted without the parties having filed a consent or appeared before court to enter a consent judgment as directed by the court is premature, void, and a nullity. The court held that a consent order must emanate from a consent duly filed and entered by the parties before court. Where the court directed that a consent be filed and the parties appear for court to enter a consent judgment, but no such consent was filed and no appearance made, the subsequent extraction of a consent order constitutes an error apparent on the face of the record and an illegality that cannot be sanctioned.

Outcome

Consent order set aside as void and a nullity; matter to proceed as if consent order never existed

Facts

The applicants sought review and setting aside of a consent order dated 10/12/2021 extracted in Miscellaneous Appeal No. 620 of 2021. The underlying dispute concerned administration of the estate of the late Patrick Lubowa who died intestate. The respondent had filed Civil Suit No. 147/2021 for removal of a caveat lodged against her petition for letters of administration. MA No. 620/2021 was filed seeking to set aside an abatement order. During proceedings, counsel discussed possible amicable settlement and proposed four persons as administrators. On 9 December 2021, the court directed that a consent be filed and the parties appear so that a consent judgment be entered. On 10 December 2021, counsel for the respondent extracted a consent order despite no record showing the parties had appeared or that a consent judgment had been entered. The applicants' counsel protested the premature extraction, stating he had no instructions to enter a consent and the applicants were not agreeable to the terms.

Issues

  1. Whether the consent order dated 10/12/2021 should be reviewed and set aside

Orders

  • Application allowed.
  • The consent order dated 10/12/2021 extracted by M/s. Simon Tendo Kabenge & Co. Advocates acting for the Respondents in Miscellaneous Appeal No. 620 of 2021 was entered in error, is void and a nullity.
  • The said order in MA 620/2021 dated 10/12/2021 is hereby set aside.
  • The Respondent shall pay costs of the application but the said costs shall stay in the cause.

Rules and key headnotes

Civil Procedure — Review of Judgments and Orders — Consent Orders — Requirements for Valid Consent Order
A consent order must emanate from a consent duly filed and entered by the parties before court. Where the court directs that a consent be filed and the parties appear for court to enter a consent judgment, a consent order extracted without compliance with these conditions is premature, void, and a nullity.
Civil Procedure — Review of Judgments and Orders — Grounds for Review — Error Apparent on Face of Record
An order that does not emanate from a considered decision of court is an illegality. Where a consent order is extracted without the parties having filed a consent or appeared before court as directed, this constitutes an error apparent on the face of the record warranting review and setting aside under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules.
Civil Procedure — Consent Judgments — Formation and Requirements — Assent of Parties
A consent judgment is based on a new contract or agreement of parties and the same rules that govern contracts apply. The requirement of assent fundamental to formation of a binding contract implies that both parties shall have a reasonably clear conception of what they are getting and giving up. A consent judgment cannot be entered without the parties' assent.
Civil Procedure — Consent Judgments — Setting Aside — Grounds
A consent judgment cannot be set aside except for illegality, fraud, or mistake. A consent decree has to be upheld unless violated by reason that would enable a court to set aside an agreement such as fraud, mistake, misapprehension, or contravention of court policy.
Administrative Law — Illegality — Court's Duty to Address Illegality
A court of law cannot sanction what is illegal. An illegality once brought to the attention of court overrides all questions of pleadings including any admission made thereto.

Legislation cited (6)

Cases cited (9)

Full judgment

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Nakubulwa and 2 Others v Kagere (Miscellaneous Application 190 of 2022) [2023] UGHCFD 70 (27 February 2023)
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.