Kaloli Mubiru and 21 Others v Kayima and 5 Others (Civil Appeal 3 of 1999) [1979] UGCA 1 (1 November 1979)


IN THE COURT OF APPEAL FOR UGANDA

ment of produce with it

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(Coram: Wambuzi, C. J., Musoke, P. J., & Nyamuchoncho, J. A.)

## CIVIL AND LL NO. 3 OF 1979

**BETULEN**

KALOLI MUBIRU & 21 OTHERS ........................ APPELLANTS

$\cdot$ N D

EDMOND KAYIWA & 5 OTH. RS ....................... RESPONDENTS

(Appeal from a judgment of the High Court of Uganda at Kampala (Mr. Ag. Justice B. J. Odoki) dated 26th September, 1978.

in

Civil Suit No. 362 of 1978)

## RULING OF THE COURT

This is an appeal against the order of Odoki, Ag. J. dismissing the application of the appellants to set aside an exparte judgment entered against them.

The brief facts of the case, which were accepted by the learned trial judge, are as follows: On 14th April, 1976, the respondents filed a Civil Suit in the High Court against the appellants for an order of eviction and mesne profits. The appellants were duly served to enter appearance, but no appearance was entered by the appellants. Ex-parte judgment was accordingly applied for and entered by the Deputy Chief Registrar on 23rd Juns, 1976, under 0.9 R.6. A decree dated 26th August, 1976, was extracted and an application for execution was made on 27th October, 1976. On 16th November, 1976, the court issued an execution order. The eviction order was executed against the appellants. An application for execution by attachment of movable property of the

appellants was ..../2

appellan was made on 19th July, 1977, to sati 'y the plaintiffs' costs amounting to Shs. 11,292/ $\pm$ . Warrants of attachment and sale were issued on 28th November, 1977 to attach and sell by public auction 18 goats, 10 pigs, one scooter, and one bicycle belonging to the appellants. These were attached and sold on 27th February, 1978. On 21st June, 1978, an application by way of notice of motion was filed in the High Court by the appallants to set aside the ex-parte judgment. This application was dismissed on 26th September, 1978. They now appeal to this court. Their main ground of ap eal is that the Deputy Chief Registrar had no jurisdiction to enter the judgment against them.

It the trial, the learned judge delt with the question of jurisdiction. He held, quite properly in our view, that a claim for an order of eviction and mesne profits could not be made under 0.9 r.6. He held that it could only be made under 0.9 r.8. However, he refused to set aside the -parte judgment or the grounds that since the plaintiffs did not pursue their claim for mesne profits, the assessment of damages which was to be done under 0.9 r.6 could be dispensed with.

0.9 r.8 excludes suits under 0.9 r.6 from the general rule that where there was no appearance, the suit may proceed as if the defendant had entered an appearance. In that case, no interlocutory judgment can be entered. The trial of suits which fall under 0.9 r.8 must follow the ordinary rules of precedure. The question of assessment of damages under 0.9 $r.8$ does not arise. In brief, the procedure is that the plaintiff must fix the case and serve a hearing notice to the defendant. After that the trial should proceed in the usual manner. In this case such steps were not taken; no trial took place, accordingly, the learned Deputy Chief Registrar had no jurisdiction to enter the ex-parte judgment. His judgment is a nullity. $...$ /3

$-2-$

Counsel for the respondent conceded that the judgment was bad in law, but urged the court not to re-open the case on the grounds that the judgment has already been satisfied, i.e. execution has been carried out and eviction of the appellants completed. He said that it would cause great injustice to the respondents to set aside the ex-parte decree at this late hour. In our opinion, Mr. Nkambo-Mugerwa's arguments are untainable. Where there has been some procedural irregularity in the proceedings leading up to a judgment or order, which is so serious that the judgment or order ought to be treated as a nullity, the court will set it aside. It is well established law that a judgment of a court without jurisdiction is a nullity and a judgment which is a nullity is something which the person affected by it is entitled to have it set aside ex-debito juditities. See: Craig -vs- Kanseen (1943) 1 All E. R. 108 at p.113 letter A and Mwatsahu -vs- Maro (1967) L.8. 42. In our view, once the learned judge came to the conclusion that the Registrar acted without jurisdiction, no further incurry should have been made into the merits of the case. The fact that the judgment has been satisfied and execution completed is no good reason for not quashing a judgment which is a nullity. Any execution completed under such a judgment which is a nullity is void ab initio and the order and writ of possession and the execution made under it must be set aside. See: Fleet Mortgate -vs- Lower Mainsonette (1972) 2 All E. R. 737.

we are satisfied that the learned Doputy Chief Registrar acted without jurisdiction in the case before us, accordingly, this appeal is allowed. We set aside the ruling of the learned trial judge and quash the judgment of the learned Deputy Chief Registrar and set aside any orders made pursuant to that judgment.

We order $\ldots$ /4

$-3$

We order that the respondent do restore posses ion of the land to the appellants and pay to them the sums of money realised from the sale of their property.

These orders are not intended to prejudice the respondents! original suit should they choose to pursue their claim against the appellants. The respondents shall pay the costs of the appellants in this court and in the court below.

BATED AT KAMPALA this 1st DAY OF NOVEMBER, 1979.

gd: : (s. $\#$ . $\therefore$ WAMBUZI) CHIEF JUSTICE.

Sgd: (S. MUSOKE) PRINCI: L JUDGL.

agd: (P. NYAMUCHONCHO)

JUSTICE OF APPEAL.

Mr. Kasule for M/s. Sendege & Co. Advocates for appealants.

Mr. Nkambo-Mugerwa of M/s. Mpanga & Mugerwa advocates for respondents.

I certify that this is a ture copy of the original.

$\overline{11122}$ (A. M. C. Ochwo). for: CHIEF REGISTRAR.

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