[2025] UGHC 423

# THE **REPUBLIC OF UGANDA IN THE HIOGH COURT OF UGANDA AT TORORO HCT-19-CA-005-2024 [ARISING FROM BUTALEJA CIVIL SUIT NO.005 OF 2022]**

| HABAYA NATHAN PULISI::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT | |-------------------------------------------------------------------------------------| | VERSUS | | OJONY ACHIKO AARON EMANNUEL::::::::::::::::::::::::::::::::::RESPONDENT |

# **JUDGMENT**

# **BEFORE: HON. DR. JUSTICE HENRY I KAWESA**

This is an appeal from the orders of the magistrates Court at Butaleja on grounds that:

- 1. The trial Magistrate did not evaluate the evidence properly or at all as a result of which he reached the decision which is unsupportable - 2. The decision of the Magistrate is tainted with fundamental misdirection in in law and in fact. - 3. The decision of the Magistrate is against the weight of the evidence - 4. The Magistrate erred in law and in fact upon his failure to exercise the judicial function to adequately appraise and evaluate the evidence and legal arguments as a whole thus occasioning a miscarriage of Justice.

When this matter was called for hearing in Court it was noted that the Respondent did not respond to the summons neither did, he come to Court on the date of hearing the case. Counsel for the Appellant prayed for leave to proceed *ex-parte* against the Respondent under **O.21 (1) (a) of the CPR**, however, Court ordered for fresh service of summons to be served personally by the Court process server. The matter was then adjourned for hearing.

On the date to which this matter was adjourned on the 12th of November 2024 there was an Affidavit of service showing that there was effective service showing that the Advocates for the Respondent received service, but again nobody attended for the Respondent and neither did the Respondents attend in person. Counsel for the Appellant therefore prayed to be allowed to proceed exparte under **O.9 R 20 (1) (a) CPR**, which the Court granted and ordered the Appellant to file written submissions in proof of the appeal.

# **Duty of first appellate Court**

It is the duty of this Court as a first Appellate Court to evaluate the evidence on record and come up with its own findings on the same.

# **(***See: Fr. Narensio Begumisa & 3 Others vs. Eric Tibebaga, Civil Appeal No. 17 of 2002, (per Mulenga, JSC). See also Coghlan Vs. Cumberland (1898)1 Ch. 704)*,

wherein the Court of Appeal of England put the matter succinctly as follows;

"*Even where, as in this case, the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, ced the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the Judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the full conclusion that the Judgment is wrong...when the question arises which witness is to be believed rather than another and that question turns on the manner and demeanor, the Court of appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from the manner and demeanor, which may show whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witness whom the Court has not seen*.

The *Pandya Vs. R 119571 EA 15 336)*, the above passage was cited with approval.

Court held that the principles declared above are basic and applicable to all first

appeals. In *Kifamunte Henry Vs. Uganda, Criminal Appeal No. 10 of 1997, the Supreme Court* held that;

"*it was the duty of the first appellate Court to rehear the case on appeal, by reconsidering all the materials which were before the trial Court, and make up its own mind*".

### **Resolution of the Appeal**

The record indicates that in the lower Court, when the Plaintiff filed Civil Suit Number 9 of 2022 against the Defendant, an interlocutory judgment was entered against the Defendant for failure to file a defense and the matter proceeded for formal proof. The Court therefore found that the Plaintiff had been successful against the Defendant and the Judgment was entered for the Plaintiff on 18th May 2023. Arising from the judgment an application for execution was filed as MSCA l/2023 being an application for taxation.

Taxation was duly done, and completed on the 8th of June 2023, and notice to show cause why execution should not be affected was accordingly served on the Defendant on the 20th of October 2023. On I st December 2023, MSCA 4 / 2023 being an application for setting aside the Experte Judgment and for staying the pending execution proceedings so that the Applicant is allowed to file his defense out of time was filed.

The Court made its ruling on the matter in which the trial Magistrate concluded that the Applicant was all along aware of the existence of Civil Suit No. 09 of 2023, out of which the application arose, but in the interest of Justice chose to give an opportunity to the Applicant to present his defense, hence this appeal.

In his submissions counsel for the Appellant pointed out that the trial magistrate was *functus officio* having already made the decision to that the Plaintiff, had been successful against the Defendant and the Judgment was entered for the Plaintiff on 18th May 2023. Arising from the judgment an application for execution was filed as MSCA 1/2023 being an application for taxation. Taxation was duly done, and completed on the 8th of June 2023, and notice to show cause why execution should not be affected was accordingly served on the Defendant on the 20th of October 2023. On 1st December 2023, MSCA 4/2023 being an application for setting aside the *exparte* Judgment and for staying the pending execution proceedings so that the Applicant is allowed to file his defense out of time was filed

Court made its ruling on the matter in which the trial Magistrate concluded that the Applicant was all along aware of the existence of Civil Suit No. 9 of 2023 out of which the application arose but in the interest of Justice chose to give an opportunity to the Applicant to present his defense, hence this appeal.

In his submissions Counsel for the Appellant pointed out that the trial magistrate was *functus officio* having already made the decision to proceed *ex-perte*, gave judgment, taxed costs and was at stage of execution. He pointed out that the trial magistrate having exhausted his powers he could not turn around to reopen and entertain this matter.

I do agree with the submissions by counsel for Appellants on all the grounds raised and I do agree that the Magistrate was wrong to reopen a matter which was due for execution the responded having been given all opportunities to defend the matter and having chosen not to do so.

There is enough evidence on record to show that several attempts to serve the Defendant were done, including substituted service by newspaper and on radio. Therefore, there was not justifiable cause in the interest of Justice for the Court to base upon to reopen this matter.

The *functus officio* rule dictates that a trial judicial officer's hands are tied once a final pronouncement is made on a matter by himself or herself (as it was in this case). Reopening the case amounts to miscarriage of Justice which this Court cannot uphold.

In **Black's Law Dictionary, 9 th Edition**, *functus officio* is defined as;

*"Latin 'having his or her office ' (of an officer or official body) without further authority or legal competence because the duties and functions of the original have been fully accomplished It is a Latin word for "a task performed*". It means that once the Court, tribunal or panel has issued a final and binding order, it becomes *functus officio* and lacks any further power to revisit issues once it has ruled. The general rule is that a final decision of a Court cannot be reopened. (*See the Tanzania* case of *Telecommunications Co. Ltd and Others versus TRI Telecommunications Tanzania Ltd (Civil Revision No. 62 of 2006)*

*1 20061 Court of Appeal of Tanzania at Pp 5-7*), which offers the explanation that:

"*The rule applies only after the formal judgment or ruling has been drawn up, issued and entered. The rule has also been widely applied in arbitration whereby it is established that upon issuance of "final and binding" awards, arbitration panels are considered to have completed their work and are functus officio, or powerless to re-examine the merits of issues adjudicated*"

For that reason, I find that the appeal succeeds on all grounds 1,2,3, and 4. The lower Court's ruling is therefor set aside and the exparte judgment reinstated with costs to the Appellant.

I so order.

Dr. Henry I Kawesa **JUDGE** 9/05/2025

In the presence of 4