Wakilii

Yu Sung Construction Limited v Attorney General of the Republic of South Sudan (Appeal No. 11 of 2022)

East African Court of Justice · [2023] EACJ 11 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ruling of First Instance Division setting aside consent judgment
Decision
Appeal dismissed; matter remitted to First Instance Division for hearing on merit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice Appellate Division dismissed an appeal challenging the setting aside of a consent judgment. The Court held that the consent judgment was invalid because it was not entered by a properly constituted quorum of judges as required by the Court Rules. The purported consent judgment was signed only by the Registrar without any court proceedings or order from a bench of at least three judges. The Court found that such a decree was null and void ab initio and could not be validated. The Trial Court properly exercised jurisdiction to set aside the invalid judgment and grant the respondent leave to file a defence.

Outcome

Appeal dismissed; matter remitted to First Instance Division for hearing on merit

Facts

Yu Sung Construction Limited filed a reference in the First Instance Division seeking USD 46,403,228.26 from the Attorney General of South Sudan for construction work. The Respondent failed to file a response within the prescribed time. On 26 November 2020, a consent judgment awarding the Appellant USD 49,398,473.91 was allegedly entered. The consent agreement was signed by the parties' advocates and a decree was extracted and signed by the Registrar on the same day, but no court proceedings took place and no order was made by a bench of judges. When the Appellant attempted to enforce the decree in Kenya, the Respondent filed an application for review in the Trial Court, seeking to set aside the consent judgment on grounds that it was entered fraudulently and without legal authority. The Respondent also sought leave to change advocates from Mr. Biong (a State Attorney) to a private law firm. The Trial Court granted the application, set aside the consent judgment, validated the new representation, and extended time for filing a response to the reference.

Issues

  1. Whether the First Instance Division erred in law by holding that it had jurisdiction to entertain the application to set aside the consent judgment.
  2. Whether the First Instance Division erred in law by holding that the applicant had locus standi in the application.
  3. Whether the First Instance Division erred in law and committed a procedural irregularity by allowing the law firm of Macharia-Mwangi & Njeru Advocates to come on record for the Respondent.
  4. Whether the First Instance Division erred in law by setting aside the Consent judgment dated 26th November, 2020.
  5. Whether the First Instance Division erred in law and committed a procedural irregularity by extending the time for the Respondent to file its Response in Reference No. 21 of 2019.

Orders

  • Appeal dismissed in its entirety.
  • Costs awarded to the Respondent.

Rules and key headnotes

Consent Judgments — Validity — Requirement for Court Quorum
A consent judgment is not valid unless it is sanctioned by a properly constituted court. Under the East African Court of Justice Rules, a quorum of three or five judges is required to enter judgment. A decree signed only by the Registrar without any court proceedings or order from a bench of judges is null and void ab initio.
Consent Judgments — Recording Requirements — Rule 62
Where parties reach a compromise, Rule 62 of the East African Court of Justice Rules requires the court to satisfy itself that the dispute has been adjusted by a lawful agreement before recording the compromise and entering judgment accordingly. A consent judgment entered without any hearing or proceedings to satisfy the court of the lawfulness of the agreement does not comply with Rule 62.
Nullity — Effect of Void Judgment
If an act is void, it is in law a nullity and not a mere irregularity. It is incurably bad and automatically null and void without the need for a court order to set it aside. Every proceeding founded on a nullity is also bad and incurably bad.
Review of Judgments — Grounds — Error Apparent on Face of Record
A court has jurisdiction to review and set aside a judgment where there is an error apparent on the face of the record. An error is apparent on the face of the record if it is an evident error which does not require extraneous matter to show its correctness, and is so manifest and clear that no court would permit such an error to remain on record.
Change of Advocates — Procedural Requirements — Purpose of Rules
The requirement for notice of change of advocates is intended as a shield to protect litigants, not as a sword to be used against them. Where a state counsel allegedly acts against the interest of the state and a litigant seeks to change representation, the court may validate new representation notwithstanding non-compliance with procedural requirements for notice of withdrawal.
Extension of Time — Discretion of Court
Whether or not to extend time is a matter of discretion for the court, which must be exercised judiciously. An appellate court is only entitled to interfere with the exercise of discretion where the trial court has misdirected itself on the law, misapprehended the facts, taken into account irrelevant considerations, failed to take into account relevant considerations, or if the decision is plainly wrong.
Res Judicata and Functus Officio — Inapplicability to Void Judgments
The doctrines of res judicata, functus officio, and approbation and reprobation do not apply where there is no valid judgment. A purported judgment entered without jurisdiction or in violation of mandatory procedural requirements is not a judgment of the court and does not attract these doctrines.

Cases cited (13)

  • Saroj Gandesha v Transroad (Supreme Court Civil Appeal No. 13 of 2009)
  • Attorney General of the Republic of Rwanda v Eric Kabalisa Makala (Application No. 2 of 2022)
  • Oil Seeds (U) Limited v Uganda Development Bank (Civil Appeal No. 9 of 2009)
  • Media QMI Inc v Kamel (2021) SCC 23
  • Mcfoy v. United Africa Limited [1961] 3 All ER 1169
  • Raniga v. Jivraj [1965] EA 700
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Hirani v Kassam [1952] 19 EACA 1
  • Oppressed ACS, A Minority 1 Pty and Another v the Government of the Republic of South Africa and Others, Case No, ZASCA 50 (11 April,2022)
  • Christopher Mtikila v Attorney General of the United Republic of Tanzania (Application No. 8 of 2007)
  • FX Mubuuke v Uganda Electricity Board (HCMA No. 98 of 2005)
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Margaret Zziwa v Secretary General of the East African Community (EACJ Appeal No. 2 of 2017)

Full judgment

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

Yu Sung Construction Limited v Attorney General of the Republic of South Sudan (Appeal No. 11 of 2022) [2023] EACJ 11 (27 November 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.