Mwesige v Kiiza (Civil Appeal 7 of 2022) [2024] UGHC 850 (29 August 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 007 OF 2022 (FROM KJJ-008-CV-CS-004 OF 2021)**

**RICHARD MWESIGE ::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**ROSE KIIZA :::::::::::::::::::::: RESPONDENT**

# **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

# **JUDGMENT**

This is an appeal against the judgement and orders of H/W Wilson Wandera, the Magistrate Grade 1 of the Chief Magistrate's Court of Kyenjojo at Kyegegwa, delivered on the 18th of November 2021 wherein he entered a judgement on admission against the appellant.

# **Background**

The respondent filed Civil Suit No. 04 of 2021 against the appellant, seeking a declaration that she is the owner of the suit land, an order compelling the appellant to deliver vacant possession of the same, a permanent injunction, general damages, and costs of the suit.

The respondent's claim against the appellant is that she bought the suit land, located in Ngaija Village, Kibuye Parish, Kyegegwa District, from the appellant on the 23rd of August 2020, for a consideration of UGX. 6,500,000/=. However, the appellant failed to deliver vacant possession of the suit land.

In his written statement of defence, the appellant refuted the respondent's claims, stating that he entered into a loan agreement with the respondent for UGX. 5,000,000/=, with an interest of UGX. 1,500,000/=, on behalf of one Ngabo K. William, and pledged the suit land as security. The appellant further stated that a payment of UGX 1,000,000/= had been made and the only money owed to the respondent was UGX. 5,500,000/=.

When the matter came up for hearing on the 18th of November 2021, it proceeded *ex parte.* Counsel for the respondent made an oral application for judgement on admissions which the learned trial magistrate granted and awarded damages of UGX. 2,000,000/= and costs against the appellant.

Being dissatisfied with the decision of the learned trial magistrate, the appellant appealed to this court on the following grounds:

- 1. The learned trial Magistrate erred in law and fact when he held that the appellant's averment about the knowledge of an underlying moneylending contract and sums therein and deposit in court as provided in contentious matters, were an admission of different unlawful claim of the respondent for the land in the plaint. - 2. The learned trial magistrate erred in law and fact when he pre-judged the issue of general damages due in the matter before the appellant had led evidence in formal proof of the same. - 3. The learned trial magistrate erred in law and fact when he caused the matter to proceed *ex parte* without formal proof by affidavit of service that the order of service to the appellant was complied with rather than inferences of submissions of the respondent's counsel. - 4. The learned trial magistrate erred in law and fact when he illegally, irregularly and improperly issued a warrant of attachment of 21/12/2021.

# **Representation and Hearing**

Mr. Timothy Atuhaire represented the appellant. The respondent did not appear in court. The hearing proceeded by way of written submissions. Counsel for the appellant filed written submissions which I have considered in this judgement.

# **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

> *"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, the court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

I will first determine ground 3 of this appeal since, if it succeeds, may dispose of the entire appeal.

**Ground 3: The learned trial magistrate erred in law and fact when he caused the matter to proceed** *ex parte* **without formal proof by affidavit of service that the order of service to the appellant was complied with rather than inferences of submissions of the respondent's counsel.**

#### **Submission by Counsel for the Appellant on Ground 3**

In arguing ground 3 of the appeal counsel for the appellant submitted that the record of 29th September 2021 showed that counsel for the respondent undertook to extract a hearing notice and serve the appellant which he did not do. Counsel argued that although the appellant had filed and served the written statement of defence, he was not aware that the matter had been fixed for hearing, and it was the duty of counsel for the respondent to ensure that the appellant was served with notice of hearing.

Counsel for the appellant argued that in the absence of proof of service of hearing notice, it was wrong for the learned trial magistrate to proceed *ex parte* and consequently enter a judgement on admission against the appellant.

# **Court's Determination of Ground 3**

I have perused the record of proceedings of the trial court and established that on the 29th of September 2021 when the matter came up for mention, the appellant was absent. The trial magistrate then ordered counsel for the respondent to extract a hearing notice and serve it on the appellant as per counsel's prayer. The matter was adjourned to the 18th of November 2021.

When the matter came up on 18th November 2021, counsel for the defendant told the court that:

> *"Court directed us to serve a hearing notice which we did but there is no affidavit of service due to power."* Counsel for the respondent went on to state that the *"defendant was served on the 15th of October 2021 and subsequently, he came to this court and deposited money to the tune of UGX. 1,400,000/= on the 11/11/2021. This means he is fully aware of the date of today."*

Counsel for the respondent then made an oral application for judgement on admissions.

The learned trial magistrate did not inquire whether the appellant was duly served with the hearing notice as directed. Instead, he only addressed the issue of admission of facts and consequently entered a judgement on admission under Order 13 Rule 6 of the Civil Procedure Rules.

Order 9 Rule 20 of the Civil Procedure Rules provides for the steps to be taken when the plaintiff only appears in court after the defence has been filed. The rule provides thus:

# *"20. Procedure when only plaintiff appears.*

*(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing—*

*(a) if the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex parte;*

*(b) if the court is not satisfied that the summons or notice of hearing was duly served, it shall direct a second summons or notice to be issued and served on the defendant; and*

*(c) if the court is satisfied that the summons or notice of hearing was served on the defendant, but not in sufficient time to enable him or her to appear and answer on the day fixed, or that the defendant was for other sufficient cause unable to appear in person or cause appearance to be made on his or her behalf, it shall postpone the hearing of the suit to a future day to be fixed by the court and shall direct notice of that day to be given to the defendant.*

*(2) Where it is owing to the plaintiff's default that the summons or notice of hearing was not duly served or was not served in sufficient time, the court may order the plaintiff to pay the costs occasioned by postponement."*

From the foregoing, it was prudent for the trial court to first satisfy itself that the defendant was duly served before hearing any matter *ex parte*.

It is trite law that evidence of service of court processes is by way of an affidavit of service deponed by a serving officer *(See: Ronald Mubunga & Another v. Asaba Paul HCMA No. 14 of 2023).* In the instant case, in much as counsel for the respondent submitted that the appellant had been served with the hearing notice on the 15th of October 2021, there was no proof of service to that effect.

The fact that the appellant had deposited in court UGX. 1,400,000/= on the 11th of November 2021 is neither proof of service of the hearing notice as directed by the trial court nor proof that the appellant was aware that the matter had been adjourned to the 18th of November 2021.

With due respect to the learned trial magistrate, it was wrong to entertain an application for judgement on admissions *ex parte* without establishing whether the appellant had been duly served with the hearing notice.

The import of Order 9 Rule 20 of the Civil Procedure Rules is that parties to a suit must be accorded their right to a fair hearing. The right to a fair trial in civil matters is guaranteed by Article 28 (1) of the Constitution of the Republic of Uganda, 1995, and its denial should be a last resort of the court *(see: National Enterprises Corporation v. Mukisa Foods, C. A. Civil Appeal No. 42 of 1997).*

For the reasons given above, ground 3 of the appeal succeeds and effectively disposes of all other grounds of this appeal.

I find that the decision of the trial learned trial magistrate violated the appellant's right to a fair hearing and occasioned an injustice to him. It is therefore my considered view that it would be perpetuating that injustice if the trial court proceedings and orders are allowed to stand.

This court, in the circumstances, has the power and the duty to remedy that injustice. Resultantly, this appeal succeeds and is hereby allowed in the following terms:

- a) The judgement and orders of the trial court are hereby set aside. - b) A retrial order is hereby issued. - c) Each party shall bear its own costs in this court and the court below. - d) The Deputy Registrar shall send back the lower court file to the lower court for a retrial to be conducted.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**