[1994] UGSC 32

IN THE SUPREME COURT OF UGANDA

#### AT MENGO

## (CORAM: MANYINDO, P<C. JM ODQKI, J,S. CM AND ODER, J,S. C,)

#### CIVIL APPEAL NO. \$3 OF 1993

# BETWEEN

APPELLANTS 1. 2. GODFREY MUYONJO MUKASA ) JANET MUKASA )'

## AND

THE REGISTERED TRUSTEES OF NAMIREMBE DIOCESE RESPONDENTS

(Appeal from the ruling of the High Court of Uganda ( Mpagi\*»Bah^e gaine, J.) dated 4th August, 1993 in Civil Suit No. 221 of 10 198?)..

#### JUDGMENT OF ODER, J. S. C.

(Mpagi-This is an appeal against the ruling of the High Court Bahegaine, J.) refusing the Appellants' application for setting aside an ex-parte judgment previously passed in favour of the Respondents.

Remedies prayed for in the plaint included an eviction a permanent induction, special damages of Shs.2,000,000/= fence alledgedly damaged by the Appellants) general damages and costs of the suit. The Respondents, claiming to be preperietors of a seven-acre piece of land situated on Plot Nos. 288 0293 at Lukuli near Kampala (hereinafter referred to as ''the Suit property"), sued the Appellants in the High Court on 5th March, 198? for trespass and malicious damage to property. **order,** (being the cost of a

of the Civil Procedure Rules on 24th June, 1987\* the Appellants' application the suit was heard The Appellants, mother and son,/were served with the summons and plaint, which they then passed on to their Lawyers, with instructions to defend the Suit. But, unfortunately for them, the Lawyers neither entered an appearance, no filed a written statement of defence to the suit. Consequently, the Respondents applied for an interlocutory judgment, which the Registrar purportedly entered under order 9 rule 5 Subsequently, on ex-parte in the absence of the Respondents on 11th January, 1988 in proceedings that were called ''formal proof", before Kityo, J. Two witnesses testified for the Appellants on that occasion. Judgment was delivered on 9th March, 1988, granting all the remedies for which the Respondents had prayed.

Subsequently, the Appellants applied under Order 9, rules 9 and 24 ef the Criminal Procedure Rule for an order to set aside the ex-parte judgment of 9th March, 1988, and to be allowed to enter an appearance and file a written statement of defence out ef time. They also asked for a discharge of the order for a permanent injuction that Kityo, J. had made against them in the ex-parte judgment. The application was founded on four grounds, which were to the effect that when served with a notice for hearing of the suit, the Appellants' Counsel failed to turn up without giving reasons and to inform the Appellants about the hearing date; that the Appellants had a good defence to the suit; and that the Appellants, having occupied the suit property as customary tenants for over 30 years, their eviction without adequate compensation and provisions for an alternative area for their settlement would cause them irraparable loss and damage. The application was supported by the 1st Appellant's affidavit, which eloborated in detail the grounds of the application.

The application for setting aside the ex-parte judgment was heard on 26th June, 1993 by Mpagi-Bahegaine, J. In a ruling dated 4th August, 1993 the learned Judge rejected the application on the ground that no sufficient cause had been shown for setting aside the ex-parte judgment. This appeal is against that rejection.

It was allowed nonetheless, Originally, four grounds were stated in the memorandum of appeal. But when the appeal was called for hearing, Mr. Mohamed Mbabazi, learned Counsel for the Appellants, made an informal application under Rule 42 (3)(a) of the Rules ©f this Court to amend the memorandum. Mr. Edward Muguluaa, learned Counsel for the Respondents, did not object to the application. We granted it, allowing the amendment, which added a new ground as number five. It raised a new issue which had not been taken at the hearing in the court below.

*2*

\*

nonetheless, because it was a point of law, which can be raised for tae first time on appeal even though it was not argued at tne trial. Moreover no objection was made by the Respondents.

as amended. stated tiie grounds of appeal as The memorandum, follows:

1 . 2. or was no The learned Judge erred in law and facts when she failed to make a finding that the Appellants had raised sufficient grounds to warrant setting aside the ex-parte decree and permanent injunction. The learned trial Judge erred in lav/ and fact when she came to the conclusion tnat the Appellants had deliberately sought by evasion otherwise to obstruct or delay the course of justice when there evidence adduced to support that finding.

3- The learned trial Judge erred in law and fact when she based her decision on irrelevant and extraneous matters which had not been pleaded or attended to by the Appellants.

5. on an illegal The learned trial Judge erred in law and fact when she held that there was no written statement of defence filed or action or step taken by the Appellants from the date of signing the decree up to 23rd June, 1993 when the record indicates the contrary. The learned Judge erred in law in refusing to set aside the judgment of Kityo, J which arose from proceedings based interlocutory judgment of the Deputy Registrar.

Mr. Muguluma, learned Counsel for the ixespondent conceded this ground In his submissions, the learned Counsel for the Appellants took ground five first, as success of the same would dispose of the appeal. He contended that the interlocutory judgment entered by the Deputy Registrar (D. R.) in favour of the Respondents wqs a nullity, because rule 3 of order 9 under which the Denuty Registrar purported to have acced was not tne proper rule, as it was irrelevant. That rule is concerned with filing of affidavit of service by a Plaintiff who wishes to proceed against a Defendant who has not entered appearance, and not with interlocutory judgments. Consequently, the procedure for ''formal proof" leading to the ex-parte judgment was irregular. In the circumstances, the ex-parte judgment and the decree should be set aside.

4 /and

It should and agreed that the whole ex-parte judgment was wrong, therefore, be set aside.

**4**

Civil Rule J of order 9 of the Civil procedure Rules by virtue of which the interlocutory judgment was purportedly entered by the Deputy Registrar provides as follows:

an appearance on summons Where any Defendant fails to enter anappearance on or before the day fixed in the summons and the Plaintiff is desirous of proceeding upon default of entry of appearance under any of the rules of this order he should cause an affidavit of service of the to be filed upon the record".

It is clear that the provisions of this rule does not authorise the Registrar . \*.• - to enter an interlocutory judgment. Consequently there can be no doubt that the interlocutory judgment which the Deputy Registrar purported to enter on 24th June, 1987 was a nullity. It follows that the ex-parte judgment which was passed at the end of the ''formal proof" proceedings was invalid. Consequently, we agree with Mr. Mbabazi's submissions in this regard, which the learned Counsel for the Respondents rightly conceded in view.

6. no appearance had been entered taan or 8 applied was not a In his submissions Mr. Mbabazi suggested that the Respondents' application for an interlocutory judgment in the suit ought, perhaps, to have oeen made under rules 4 or 6 of Order 9 of the Civil Procedure Rules\* With respect, I do not think rules 4 or 6 were applicable to the case, because the suit was not for a liquidated sum or for pecuniary damages to which these rules are relevant. The suit was for trespass, eviction, a permanent injection, and some pecunniary damages. In the circumstances, it was probably more appropriate for the Respondents to have proceeded under rule 8 as under rr 4 or 6. But as the issue of whether rules 4, 6 subject matter of this appeal, what I have said about them is really obiter, and think that I need not say any more in that connection.

appeal must succeed. In the circumstances, I have no doubt that ground five of the AS this disposes of the appealj ^I think that

**5 ...../it**

it is unnecessary to consider the other grounds.

hearing. In the result, I would allow the appeal with costs, set aside the order of the lower court refusing to set aside the ex-parte judgment, and substitute it with one setting aside the ex-parte judgment and order that the case be remitted to the nigh Court for The cost of the suit in the High Court will abide the event.

Dated at Mengo this day of , 1994.

A. H. Q. ODER, JUSTICE OF THE SUPREME COURT. in the linion

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(COUNT: IVININDO - DOS, COUNT - J. J. C. ODIN - J. J. C.)

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2. GODDDY MURCHO FILAMA & 2. ANNO ICLANA $\overline{a}$ $\mathbf{1}$ $12$ **ITTELLANTS** 意 意 $\overline{1}$ $\overline{11}$

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EDIZALIND TAUSTORS OF -TATIRATS DICCESS : : $\overline{6}$ $32$ $\begin{smallmatrix} 1 & 2 \\ 2 & 2 \end{smallmatrix}$ $\pmb{\Sigma} \; \pmb{\Sigma}$ $-2.2 \qquad 5.2$ $\mathbb{P} \otimes_{\mathbb{C}} \mathbb{C} \mathbb{D}^{\bullet} \mathbb{C}$

(Appeal from the Ruling of the R/C<br>(Lpogi Publicatio, J) deted 4-0-33).

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$\overrightarrow{S}$

I have read the judgment of oder, J. C. C. and I agree with it. As Odoki, J. S. C. also agrees the appeal is allowed in the terms proposed by ther $-$ J. S. C.

DARIED of Mengo Shisto........ Boy oft......... 2994.

S. T. PATTICO

DETEN CIL P CUITICE

H. CIL TITE COURT OF INVITA $\mathbb{C}^{\mathcal{L}_{\mathcal{L}}}$

AT TITCO

(CORAM: IMMENDO - DOJ, OROKI - J. S. C. ORAK - J. S. C.)

CIVIL ATTML FO. 33 CF 1003

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$2.$ GODERNY NUYCHJO INKANA & 2. JANER MUKASA $\overline{2}$ 11 11 11 11 11 APPELLANCS

**Vs**

INGL 2 100 ENCORES OF -RATINIDE DICCISE It is so is is is in RUS-CIDER

(Appeel from the Ruling of the H/C<br>(Epori Rehigoino, J) deted 4-8-93).

# $2002122 02 0. 0. 0. 0.00000 - 0000$

$\mathbf{S}$

I have read the judgment of Cder, J. S. C. and I egree with it. As Odoki, J. S. C. also agrees the appeal is allowed in the terms proposed by Oder - $J_{\bullet}$ ...

DATED of Nongo This:........ Doy of:......... 1994.

S. T. MAINITOO

DISTURY CHEMP JUSTICS

### in the supreme court of Uganda

### AT MANGO

(CORAHt MAHYINDO DCJ, ODOKI J3C, *&* ODER JEC.,)

civil appeal no 33 or 1993

# BETWEEN

APPELLANTS GODFREY MUYGNJO MUKASA JANET MUKaSA

## AND

THE REGISTERED TRUSTEES OF NAIZREMDE DIOCESE RESPONDENTS

(Appeal from the ruling of the High Court of Uganda (iipugi Bahegaine,J) dated 4th August 1993

in

Civil Suit NO 221 of 1%7)

### JUDGMENT OF OJOKI JSC ^I

allowed 1 have hud the advantage of reading in draft the judgment of Odor JSC and I agree with him that this appeal must be

Secondly, induction, in addition to special damages and the Registrar had no power to outer an interlocutory judgment in respect of the suit, as it did not fall within the provisions of *0,9* rr 4>5 and ⁶ of the Civil Procedure Rules, thd Registrar purpated to enter the interlocutory judgment under 0.9 r.3 which provision did not give him such P0\*^01\* . .. as it was concerned with the filing of an affidavit of As the respondents sued for an eviction order, permanent general damages,

service on record where the plaintiff desires to proceed ex parte. Therefore the ex parte judgment of Kityo J passed under 0.9 r 7 was bad in law and the learned judge errod in not setting it aside.

I concur in the order proposed by Oder. JSC.

Str.................................... Dated at Mengo this

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JUSTICS OF THE SUPPLIE COURT