[1998] UGCA 28

## I'IIE R-EPUBI-IC O[' UGANDA

## IN TIIE COURT OF APPEAL OF UGANDA A't KAIVTPALA

#### CIVIL APPEAL 28/97

# CORAI\I: C.[I. KAI'O. J. A.. IvlP . ND A. TWINOIVIUJUNI. J. A,

NICII0I,AS ROUSSOS::: APPI'I,I,AN1'

- VERSUS -

# GUI,AI\IIIOUSSI'IN IIAI}III VIRANI :: RIiSP0NI)IiN'I' NAZI\{UDIN IIABIB VIRANI :: RESPONDI'N1'

### JUIIGI'MENI' OT C. NI. KA'I'O. J. A.:

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> This is an appeal against the ruling of the lligh Court in Civil Suit No.360 of ¹⁹⁸² dated 12l10/95. The appellant is one Nicholas Roussos and the respondents are Gulamhussein IIabib Viran and Naznrudin I-labib Viran.

l'he brief facts involved are briefly as fnllows:-

In 1982 a suit was filed against the respondents by the appellant's mother whom the appellant later on succeded in title. The respondents' whereabouts were not apparently known. Substituted service of summons to enter appearance was applied for and obtained. Service was to be efl'ected upon them by an advertisernent in local newspapers known as "Llganda Times and Muno". 'l'he service was also effected by affixing a copy of summons to enter appearance on the lligh Court notice board. The respondents did not enter an appearance nor did they file any written statement of defence. The suit proceeded ex parte and judgment was entered against the respondents on 18/8/82. In April 1994 the respondents filed an application in the IIigh Court to have the ex parte judgment set aside under Order 9 rule 24 of Civil Proce<.lure Rulcs. 'l'he court heard the application and granted it in favour of the respondents, hence this appeal.

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In his rnernorandum of appeal the appellant gave 3 grounds of appcal which were as lbllows:-

- ^I That the learned trial judge erred in law when he in effect assumed powers of appeal when he held that the order for substituted service was bad in law and a nullity. - That the learned trial judge misinterpreted the provisions of Order ⁵ rule 19 of the Civil Procedure Rules when he held that application of those provisions was restricted to service on persons within the jurisdiction. 2 - That the learned trial judge erred in accepting the respondents' evidence without due evaluation and particularly without considering the appellant's evidence in regard to the issues of: 3 - (a) whether the plaintiff had known the whereabouts of the respondents when she instituted the suit. - (b) whether following the advertisement in the newspapers the respondents had sufficiently learnt of the suit in 1982.

When the appeal came up for hearing the counsel appearing for both sides agreed to make written submissions under rule 97 of Court of Appeal Rules 1996. In his written submission Mr. Nkurunziza abandoned the second and third grounds of appeal and argued only the first ground.

Mr. Nkurunziza strongly argued that the learned trial judge was wrong in hol<.ting that the substituted service effected upon the respondents was null and void. in his view such ^a holding was tantamounr to exercising appellate jurisdiction which he (trial ju<Jge ) had no power to do, According to him the finding of Kantinti J. (as he then was ) that rhe respondent had been properly served could only be challenged by way of an appeal but not in an application for setting aside an ex parte judgement, he based his argument on the case of: bert Kav otel In rral Ltd Court al ^N ⁰

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on his part Mr. Lule the learned counsel for the respondents maintained that the learned trial jugde was correct in setting aside an exparte judgment which had been obtaine<l on the basis of an ineffectual service. IIe disagreed with Mr. Nkurunziza's contention that the proper course to be taken was that of appealing against the finding of late judge Kantinti's ruling about the effectiveness of the service. [Ie requested this court to disregard lltc dccisi()n in (llc case trf: Itobert Kavurrr a v Hotel Intcflril(ional ( suDra) and he distinguished that case from the present case in that principles relating to setting aside an order of injunction are different from that of setting aside exparte decrees; Kavuma's case was concerned with setting aside of an injunction but the present case concerns setting asi<te of an exparte decree. I share the view taken by Mr. Lule, the two cases are clearly dist inguishable.

Rule 24 of order 9 of civil Procedure Rules under which the application which is the subject of this appeal was made reads as follows;-

> "24. ln atny case in which a decree is passed ex parte against a defentlant he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the sumnrons was not cluly serveti, or that he was preventcd by any sufficient cause from appearing when the suit

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was called on for hearing, the court slrall make an order setting aside the decree as against hinr upon such ternls as to costs, paynlent into court, or otherwise as it thinks l'it, and shall appoint a day for proceerling with the suit: I'r'ovided that, where the decree is of such a nature that it cannot be set aside as against such defendant alone, it may, be set aside against all or any of the other defendants also".

It is remarkable that Mr. Nkurunziza did not refer to this provision of the law in his long submission and yet it is this provision upon which this appeal hinges.

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Regarding Mr. Nkurunziza's argument that the respondents should have appealed against the order of substituted service made by late justice Kantinti, or that an application should have been made to have that order set aside, I can only say that the learned counsel did not point to us any rule under which the respondents could have resorted in order to achieve the remedies he proposetl. The respondents discovererl the irregularities ahout 12 years larer. the only remerJy open to them in #uir\* was that provided for in order 9 rule 24 <tf Civil Procedure Rules . The respondents were quite right when they decided to resort to the procedure which they adopted, I cannot see how the respondents who were not a party to the ex parte proceedings could have appealed against such proceedings unless there was a specil'ic provision of the law permitting them to do so as is the case in cases of e,( parte injunctions,l note that their application which is the subjecr of this appeal ) was lodged as a result of an observation made the Supreme court in civil Appeal No.9/93 Nicholas Roussos v Gulanrhussein Habib Viran and Another where it was observed that the proper procedure to be followed by the respondents was that laid down in order 9 n:le ²⁴ ttf Civil I'roccdure llulcs; tltc Suprenre Court in its wistjorn rlid rxrt intirrrate to the respondents k) proceed by way of an appeal.

I now turn to the real central point of contention raised by Mr. Nkurunziza in this appeal. IIis material complaint is that the learned trial judge assumed jurisdiction not vested in him when he declared that the order of substituted service was bad in law and a complete nullitT. It was Mr. Nkurunziza's serious contention that the learned judge was wrong to exercise powers of an appellate court in doing what he did and that the case of: Greig v Kanseen 119431 All E. R. 108 was incorrectly applied to this case. On the other hand Mr. I-ule argued that the learned trial judge was not wrong in declaring the order of substituted service a nullity because the order to set aside an ex parte judgment as provided for in Order 9 rule 24 of Civil Procedure Rules envisages automatic setting aside of such an order and in so doing the judge was not exercising the powers of an appellate court. Mr. Lule further argued that the appellant's counsel did not raise the issue of jurisdiction in the lower court so he should not raise it at this stage.

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The salient part of the judgrnent of the fligh Court, which is the subject of serious attack by the learned counsel for the appellant, reads in part as follows:-

> "It seems to me with respect, that the judgment of Kantiti J., was "affecled by a fundamental vice" in that no notice of the suit was given to the defendants/applicants whose interests were virtually affected by it. The service he purported to act upon was wrong in law and was no service at all. The resultant judgrnent was therefore a nullity. "

In Mr. Nkurunziza's view this type of statement was tantamount to the judge t^t^L+. assuming the jurisdiction of an appellate court^which he was not seised. According to him the trial judge should have just said that he granted the application because the applicants had shown cause as to why they had not attended court but not because the substitutcd service was bad in law.

With due respect, I do not agree with the learned counsel's reasoning on this point. I see nothing wrong with the manner in which the learned judge expressed hirnself as to why he granted the application. What the judge was saying is sinrply that the ex parte judgment entered by Kantinti J. was based on delective service which was ineffectual and judgrnent based on such service could not be valid in law. In my considered view the learned trial judge correctly stated the position of the law. The judgrnent of Kantinti J. having been obtained by irnproper means was tainted with illegality and since there was a procedure to correct it under rule 24 of Order 9 of Civil Procedure Rules it could not be allowed to stand. ln lhe case of: Makula International Lrd. v His Eminence Cardinal Nsubusa and Ano(her ¹⁹⁸² IICB l l at the law about an illegality was stated as follows:-

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" A court of law cannot sanction what is illegal and illegality once brought to the attention of the court overrides all questions of pleading including admissions made thereon......,,

The judge had no better alternative but to set aside the ex parte judgment, to do otherwise would have amounted to condoning an illegality since the ex parte judgment ha<l been secured contrary to established procedure which requires a party to be properly served before such judgment can be entered against him. I agree with the finding of the trial court that the respondents were never properly served with the necessary summons when the judgment was entered. This case definitely falls under the provisions of the first leg of rule 24 of order 9 of Civit Procedure Rules. The judge did not assume jurisdiction of an appellate court as Mr. Nkurunziza would like us believe.

In conclusion I dismiss the appeal with costs of the appeal and the court below to the respondents.

Dated at Kampala this 29 th day of 17 Pril. 1998

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$\mathbf{C}.\mathbf{M}.\mathbf{KATO}$ **JUSTICE OF APPEAL** $29/4/98$

#### **THE REPUBLIC OF UGANDA**

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL 28/97

# CORAM: C. M. KATO, J. A., MPAGI-BAHIGEINE, J. A. AND A. TWINOMUJUNI, J. A.

NICHOLAS ROUSSOS ::: ::: ::: ::: **APPELLANT**

#### - VERSUS -

#### GULAMHOUSSEIN HABIB VIRANI :: :: RESPONDENT

NAZMUDIN HABIB VIRANI :: ::: ::: ::: RESPONDENT

#### JUDGMENT OF A. E. MPAGI BAHIGEINE, J. A.

I have had the opportunity of reading $\frac{\partial \varphi}{\partial x}$ draft judgment of my Lord C. M. Kato, J. A. I entirely agree with his opinion and have nothing more to add.

Dated at Kampala this 29 de day of ... 1998 $\mathcal{L}$ A. E. MPAGI BAHIGEINE JUSTICE OF APPEAL Justice Twinomyjani also on the panel<br>Concurred with justice K28.

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