Setimba Sirajje v Sekamate Adam and Another (CML Application No. 109 of 2020)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court dismissed the respondents' preliminary objection that the application was brought under the wrong law, holding the misciting of the enabling provision a defect of form that occasioned no prejudice. It declined the prayers to set aside the judgment and decree and to stay execution because the supporting affidavit deposed to no facts justifying them, reliefs unsupported by affidavit evidence being bare pleadings, and because the Court of Appeal sets aside lower court judgments only on appeal. On the only properly supported prayer, extension of time to appeal, the applicant disclosed no reason for failing to serve the notice of appeal in time and the unexplained annexed medical forms had no probative value, so sufficient cause was not shown. Application dismissed.

Facts

In May 2013 the applicant obtained a loan of UGX 20,000,000 (inclusive of UGX 7,000,000 interest) from the first respondent, securing it with the title to land at Block 196 Plot 69, and later defaulted. The first respondent sued in Nabweru Chief Magistrate's Court, obtained a decree, executed it, and sold the suit property, which passed to the second respondent. The applicant then filed Civil Suit No. 1028 of 2018 in the High Court (Land Division) challenging the interest and the sale; the trial judge upheld a preliminary objection that the suit was res judicata. The applicant lodged a notice of appeal on 9 September 2019 but never served it on the respondents. He brought this omnibus application to set aside the judgment and decree, stay execution, and extend time to appeal, supported by an affidavit that addressed only the extension of time. Medical forms were annexed but not referred to or explained in the affidavit.

Issues

1. Whether the application was incompetent for having been brought under the Civil Procedure Act and Rules rather than the Judicature (Court of Appeal Rules) Directions.
2. Whether the prayers to set aside the judgment and decree and to stay execution could be granted where they were unsupported by affidavit evidence.
3. Whether the applicant established sufficient cause for the grant of an extension of time within which to appeal.

Orders

• This application is dismissed.
• Each party shall bear its own costs.

Key headnotes

Legislation cited (10)

• Civil Procedure Act s.79(1)(a)
• Civil Procedure Act s.98
• Civil Procedure Rules Order 51 rules 1 and 3
• Civil Procedure Rules Order 51 rule 6
• Civil Procedure Rules Order 52 rules 1 and 3
• Judicature Act s.33
• Constitution of Uganda Article 126(2)(e)
• Judicature (Court of Appeal Rules) Directions Rule 2(2)
• Judicature (Court of Appeal Rules) Directions Rule 5
• Judicature (Court of Appeal Rules) Directions Rule 78(1)

Cases cited (12)

• Roussos v Virani (Civil Appeal No. 9 of 1993)
• National Enterprises Corporation v Mukisa Foods (Civil Appeal No. 42 of 1997)
• Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
• Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007) [2008] UGSC 8
• Kyambogo University v Isiah Omolo Ndeige (Civil Application No. 34 of 2013)
• Theodore Ssekikubo and 3 others v Attorney General and 4 others (Civil Application No. 6 of 2013)
• Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001) [2002] UGSC 24
• Molly Kyalikunda Turinawe and 4 others v Ephraim Turinawe and another (Civil Application No. 27 of 2010)
• Baryaija v Kikwisire and another (Civil Appeal No. 324 of 2017) [2017] UGCA 43
• Mugo and others v Wanjiru and another [1970] EA 481
• Tiberio Okeny and another v Attorney General and 2 others (Civil Appeal No. 51 of 2001)
• Boney Katatumba v Waheed Karim (Civil Application No. 27 of 2007)