Mubiru v Kayiwa (Civil Suit 362 of 1978) [1979] UGCA 3 (1 November 1979)

Full Case Text

IN THE COURT OF APPEAL FOR UGANDA $\mathcal{H} = \mathcal{H}$ $\mathcal{A} \mathbf{T} = K_{\mathrm{max}}^{\mathrm{max}} \mathbf{F} \mathbf{A} \mathbf{L} \mathbf{A}^{\mathrm{max}}$ $\lambda$ and $\lambda$ and $\lambda$ are $\lambda$ . (Coram: Wambuzi, C. J., Musoke, P. J., & Nyamuchoncho, J. A.) CIVIL ARE WIL NO. 3 OF $515t$ $\lambda$ $\lambda$ **BETWEEN** $\cdots\,$ Standard in **KALOLI MUBIRU & 21 OTHERS ......** . APPELLANTS $\triangle$ N D vadahin sem juli EDMOND KAYIWA & 5 OTH. RS ....... RESPONDENTS fries drift $c \cdot$ (Appeal from a judgment of the High Court of Uganda at Kampala (Mr. Ag. Justice B. J. Odoki) dated 26th r good năma A September, 1978. $\cdot$ and $\cdot$ in mi und stion Civil Suit No. 362 of 1978) $\mathbb{R}^2$ $\mathbb{C}^2$ $\mathbb{R}^2$ $\mathbb{R}^2$ $\mathbb{R}^2$ $\mathbb{R}^2$ $\mathbb{R}^2$ $\mathbb{R}^2$ RULING $\mathop{\rm OF}\nolimits$ THI COURT ed dun bluos Houted Aborthis is an appeal against the order of Odoki, Ag. J. disfactures 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. $\frac{1}{2}$ 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 June, 1976, under 0.9 R. G. A decree dated 26th August, 1976, was extracted and an application for execution was made on 27th October, 1976. On 16th November, $\mathbf{f}$ 1976, the court issued an execution order. The eviction order was executed against the appellants. An application for execution by attachment of moveble property of the

appellants was $\ldots$ /2

costs amounting to Shs. 11,292/=. Warrants of attachment and belonging to the appellants. These wore 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 appellants to set aside the ex-parte judgment. This application was dismissed on 26th 'September, 1978. 'They no\- appeal to this court. Their main ground of appeal is that the Deputy Chief Registrar had no jurisdiction to enter the judgment against them. • • • »\*•■\* sale were issued on '28th November, 1977 to attach and sell by • t . . public auction 18 goats, 10 pigs, one. scooter, and one bicycle appellant;, was made on 19th July, 1977, to sati. .y the plaintiffs'

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• J.

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 iu set aside .the ex-parte judgment or. the grounds that since the plaintiffs did not pursue the'ir claim for mesne profits, the assessment of damages which was At the trial, the learned judge delt with the question to be done'under 0.9 r.6 could be dispensed with. of jurisdiction. He Jield, quite properly in our view, that a

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

tion 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-Mugetfv/a1 s arguments are untainablcv 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 tc. 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 nerson affected by it is entitled to have it E. A. 42. further inquiry should have beta\* made into the moi s'\*-of the case. The fact that the judgment has been satisfied and execution completed is no good reason for not quashing 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 sot aside. Sue: Fleet :Mortgate -vg- Lower Mainsonette (1972) 2 All A. R. 737*•* set aside ex-dobito judititire. See: Craig -vs-'kanseon (1943) 1 All E. R.. 108 at p.',113 letter A and Mwatsahu -vs- Maro (19&7) a judgment which is Ih our view, once the learned judge came to th;-: conclusion that the Registrar acted without jurisdiction, no 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 tht the judgment has alx ?udy been satisf: I, i.e. cxecu-

'.i'e are satisfied that the learned Deputy Chief Registrar, acted without jurisdiction in the case before' us, accordingly, this appeal is allowed. .?e sot aside the ruling of the learned trial judge and quash the judgment of the learned judgment. Registrar and set aside any orders mad- pursuant to that deputy Chief

9e order A

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

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; These orders are not intended to prejudice the respondents\*

appellants in this court and in the court below. • ' original suit should they choose to pursue their claim against • the appellants. • The respondents shall pay the costs of the

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

Sgd: ( 3. MUSOKE) P'AINCi: .□ JUDGE.

'gd: : (S. <. C-. VMMBUZI)

CHI.-. F JUSTICE.

3gd: (P. NYAMUCHONCHO)

JUSTICE of appeal.

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Mr. Kasula for M/s. Sendege 2: Co. Advocates for appellants.

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

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

.. (A. M. C. Ochwo),"^

for: CHIEF REGISTRAR.