Wakilii

Monica Babirye v Mohammed Mubiru (Miscellaneous Application No. 184 of 2019)

Court of Appeal · [2025] UGCA 371 · 2025 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion to set aside a judgment delivered in the applicant's absence and to reinstate Civil Appeal No. 130 of 2011
Decision
Application to set aside the judgment and reinstate the appeal dismissed with costs

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed an application to set aside a second-appeal judgment delivered in the applicant's absence. The court held that sufficient cause for absence must relate to matters beyond the party's control, such as counsel's mistake, illness, or other excusable impediment. The applicant failed to establish such cause: the record showed she was duly served through her former advocates, who acknowledged court process and filed conferencing notes, and she produced no affidavit from counsel and no medical or travel evidence. Service on a duly appointed advocate is sufficient absent a communicated change of representation. The respondent's failure to file an affidavit in reply did not bar reliance on written submissions. The application also impermissibly raised points of fact on a second appeal.

Facts

The applicant sought to set aside the judgment of the Court of Appeal in Civil Appeal No. 130 of 2011, delivered on 1 August 2017, and to have that appeal reinstated and heard on the merits. The underlying dispute concerned land and had passed through the Nakawa Magistrates Court and the High Court before the second appeal. The applicant contended that she was prevented by sufficient cause from attending the appeal hearing, which proceeded in her absence and resulted in judgment against her, denying her a fair hearing, and that the judgment and extracted decree contained errors. The respondent opposed the application, asserting that the applicant had been duly served through her former advocates, Musoke Suleman & Co. Advocates, who acknowledged receipt of court process including the Notice of Appeal and hearing notices and filed conferencing notes on the record. The applicant filed no affidavit from her former counsel and produced no medical or travel evidence to explain her absence.

Issues

  1. Whether the applicant demonstrated sufficient cause to warrant setting aside a judgment delivered in her absence and reinstating the appeal.
  2. Whether the applicant was duly served with the appeal process through her former advocates.
  3. Whether the respondent's failure to file an affidavit in reply entitled the applicant to have her evidence treated as unchallenged.

Orders

  • The application is dismissed.
  • Costs of the application awarded to the respondent.

Key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause
To set aside a judgment given in a party's absence, the sufficient cause shown must relate to matters beyond the party's control, such as a mistake by counsel, illness, or other excusable impediment.
Civil Procedure — Service of Process — Service on Advocate
Service on a party's duly appointed advocate is deemed sufficient unless a formal change of address or representation has been communicated to the court.
Civil Procedure — Affidavit Evidence — Effect of No Affidavit in Reply
The absence of a formal affidavit in reply does not negate a respondent's right to address the substance of an application through written submissions on the court record.
Civil Procedure — Second Appeals — Restriction to Points of Law
A second appeal lies on points of law only, and a party cannot rely on points of fact as a ground for setting aside the judgment of a second appellate court.

Legislation cited (10)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
  • Court of Appeal Rules r.36
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.26(1)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.126(2)
  • Registration of Titles Act s.59
  • Oaths Act

Cases cited (13)

  • H.G. Gandesha & Anor v G.J. Lutaaya (Supreme Court Civil Appeal No. 14 of 1989)
  • Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Appeal No. 8 of 1998)
  • Orient Bank v Fredrick Zaabwe & Another (Civil Appeal No. 17 of 2007)
  • Lakkhanishi Brothers Ltd v R. Raja & Sons [1966] EA 313
  • Fangmin v Dr. Kaijuka Mutabazi Emmanuel (Supreme Court Civil Application No. 006 of 2009)
  • Elizabeth Nalumansi Wamala v Jolly Kasande & Others (Civil Application No. 29 of 2017) [2019] UGSC 2
  • Robinnah Natanda & 11 Others v P.R. Patel & Another (Civil Application No. 258 of 2020) [2021] UGCA 127
  • National Social Security Fund & Another v Alcon International Ltd (Civil Appeal No. 15 of 2009) [2013] UGSC 4
  • Obote William v Uganda (Criminal Application No. 1 of 2017) [2018] UGSC 84
  • NPART v General Parts (U) Ltd [2000] UGSC 21
  • Geoffrey Gatete & Angela Nakigonya v William Kyobe (Supra)
  • Rosette Kizito v Administrator General & Others (Supra)
  • Nicholas Roussos v Gulamhussein Habib Virani, (Supra)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.