Wakilii

Njeru v Opec Prime Properties Limited & 2 Others (Miscellaneous Application 223 of 2022)

High Court · [2022] UGCOMMC 190 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review, vary and set aside a consent order varying an earlier consent withdrawal, alternatively to declare the consent order a nullity
Decision
Consent order declared null and void; settlement agreement remains enforceable as a contract but not as a court decree; parties may file fresh suit to have settlement terms recorded as consent judgment

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that once parties consented to withdraw a suit and the withdrawal was endorsed by the court, the suit ceased to exist and the court became functus officio. No further orders could lawfully be issued in respect of the discontinued matter. The consent order in MA 1568 of 2021 purporting to vary the consent withdrawal to include terms of a settlement agreement was therefore made without jurisdiction and was unlawful. The consent order was declared null and void. The settlement agreement remained a contract between the parties but did not have the force of a court decree.

Outcome

Consent order declared null and void; settlement agreement remains enforceable as a contract but not as a court decree; parties may file fresh suit to have settlement terms recorded as consent judgment

Facts

On 15 October 2007, the Government of Uganda entered into a PPP agreement with the respondents to develop the Nakawa Naguru Satellite City. On 9 August 2018, the Government terminated the agreement. The respondents filed Miscellaneous Cause No. 41 of 2018 seeking protection and obtained an interim order restraining eviction. On 17 September 2021, parties filed a consent withdrawal of MC 41 of 2018, endorsed by court on 22 September 2021. On 18 November 2021, respondents filed MA 1568 of 2021 seeking to vary the consent withdrawal to include terms of a settlement agreement signed on 17 September 2021. This application was consented to by the Attorney General and endorsed by court on 17 December 2021. Respondents subsequently filed MA 06 of 2022 seeking contempt orders. The applicant, a lawyer not party to the original proceedings, filed the present application seeking to set aside or declare null the consent order varying the consent withdrawal.

Issues

  1. Whether the consent order under Miscellaneous Application No. 1568 of 2021 that varied the consent withdrawal in Miscellaneous Cause No. 41 of 2018 was lawful
  2. Whether the court had jurisdiction to hear the matter given the citing of Constitutional Articles
  3. Whether the Applicant had locus standi to bring the application

Orders

  • The Consent Order in Miscellaneous Application No. 1568 of 2021 that varied the consent withdrawal under Miscellaneous Cause No. 41 of 2018 declared unlawful and null and void.
  • Miscellaneous Application No. 06 of 2022 arising from MA No. 1568 of 2021 declared a nullity and of no legal consequence.
  • Each party to bear their own costs of this application.
  • The preliminary objections on jurisdiction and locus standi overruled.

Rules and key headnotes

Civil Procedure — Withdrawal of Suits — Effect of Consent Withdrawal — Functus Officio
Once a suit has been withdrawn by consent of the parties and the withdrawal has been endorsed by the court, the suit ceases to exist and the court becomes functus officio. No further orders can lawfully be made by the court in respect of the discontinued matter.
Civil Procedure — Consent Withdrawal Distinguished from Consent Judgment — Enforceability
A consent withdrawal differs from a consent judgment. A consent judgment arises where parties present agreed terms on the subject matter of the suit which the court records and enforces as a decree under Order 25 rule 6 of the Civil Procedure Rules. A consent withdrawal that contains no such agreed terms on the subject matter does not give rise to an enforceable decree and cannot be varied as if it were a consent judgment.
Civil Procedure — Illegality — Locus Standi Overridden
Where an illegality is brought to the attention of the court, the court has a duty to investigate and determine the matter even on its own motion. An illegality once brought to the attention of court overrides all questions of pleadings, locus standi, and admissions made therein.
Civil Procedure — Consent Does Not Confer Jurisdiction — Functus Officio
Parties cannot by consent confer jurisdiction on a court where no jurisdiction exists. Submission to jurisdiction and participation by counsel does not confer jurisdiction on a court if the judge is functus officio.
Civil Procedure — Settlement Agreement — Not Enforceable as Decree Absent Valid Consent Order
A settlement agreement entered into between parties remains a contract enforceable between the parties, but does not have the force of a court decree unless its terms have been lawfully recorded by a court with jurisdiction as a consent judgment. Parties may file a fresh suit to have agreed terms recorded as a consent judgment enforceable as a decree.

Legislation cited (15)

Cases cited (10)

  • V.G. Keswala v Sheikh Dawood (Civil Suit No. 43 of 2010)
  • Alcon International v Kasirye Byaruhanga [1995] 111 KALR
  • Goodman Agencies Ltd v Attorney General & Another (Constitutional Petition No. 3 of 2008)
  • Koboko District Local Government v Okujjo Swali (Miscellaneous Application No. 1 of 2016)
  • Uganda Broadcasting Corporation v Sinba (K) Ltd (Civil Application No. 107 of 2012)
  • Bishop Jacinto Kibuuka v Uganda Catholic Lawyers & Others (Miscellaneous Application No. 39 of 2018)
  • Friedhelm Erwin Jost & Another v Roko Construction Ltd (Miscellaneous Application No. 89 of 2021)
  • Brooke Bond Liebeg (T) Ltd v Mallya [1975] EA 266
  • Meera Investments Ltd v Jeshang Popat Shah (Civil Appeal No. 56 of 2003)
  • Makula International 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.

Njeru v Opec Prime Properties Limited & 2 Others (Miscellaneous Application 223 of 2022) [2022] UGCommC 190 (13 April 2022)
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.