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Musoke Charles and Others v Manyangwa Lovincer and Others (Civil Appeal 159 of 2018)

Court of Appeal · [2026] UGCA 1 · 2026 Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing an application to set aside an ex parte (default) judgment
Decision
Appeal struck out as incompetent for want of leave to appeal

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Holding

The Court of Appeal struck out the appeal as incompetent. A ruling on an application to set aside an ex parte judgment under Order 9 rule 12 of the Civil Procedure Rules is not among the orders appealable as of right under Order 44 rule 1, because such an order does not wholly determine the controversy and is therefore not a decree within section 2(c) of the Civil Procedure Act. The right to appeal is a creature of statute and no appeal lies unless conferred by law; appeals from Order 9 rule 12 rulings must be preceded by leave of court. As the appellants neither sought nor obtained leave, the appeal was irregularly filed and was struck out with costs to the respondents.

Facts

The respondents sued the appellants in High Court Civil Suit No. 561 of 2006 seeking declaratory orders that they owned land at Singo Block 146 Plots 28-32, Kunywa village, Mityana District, together with eviction, demolition, vacant possession, a permanent injunction, general damages and costs. The dispute traced back to earlier litigation between the parties' fathers over a lease of the land. A default judgment was entered against the appellants, who claimed they were never served with summons or hearing notices, and execution commenced. The appellants filed Miscellaneous Application No. 009 of 2017 under Order 9 rules 12 and 27, Order 52 rules 1 and 2, and section 98 of the Civil Procedure Act, seeking to set aside the judgment and decree. The High Court found they had in fact been duly served on 7 October 2005 and dismissed the application on 20 September 2017. The appellants then appealed to the Court of Appeal without first seeking leave to appeal.

Issues

  1. Whether an appeal lies as of right against a ruling on an application brought under Order 9 rule 12 of the Civil Procedure Rules, or whether leave of the court was first required.
  2. Whether the appeal, lodged without leave, was competent.

Orders

  • The appeal is struck out as incompetent.
  • Costs of the appeal awarded to the Respondents.

Key headnotes

Civil Procedure — Appeals — Right of Appeal as a Creature of Statute
The right to appeal is a creature of statute, and no appeal lies unless such a right is expressly established in the law.
Civil Procedure — Appeals — Leave to Appeal — Orders under Order 9 rule 12
A ruling on an application to set aside an ex parte judgment under Order 9 rule 12 of the Civil Procedure Rules is not among the orders appealable as of right under Order 44 rule 1; leave of the court must first be obtained, and an appeal lodged without leave is incompetent.
Civil Procedure — Decrees and Orders — Section 2(c) Civil Procedure Act
An order made under Order 9 rule 12 does not wholly determine the controversy between the parties and so is not a decree within section 2(c) of the Civil Procedure Act; appeals from such orders must therefore be preceded by leave of court.

Legislation cited (9)

  • Civil Procedure Rules Order 9 r.12
  • Civil Procedure Rules Order 9 r.27
  • Civil Procedure Rules Order 44 r.1
  • Civil Procedure Rules Order 44 r.2
  • Civil Procedure Rules Order 44 r.3
  • Civil Procedure Rules Order 52 r.1
  • Civil Procedure Rules Order 52 r.2
  • Civil Procedure Act s.98
  • Civil Procedure Act s.2(c)

Cases cited (5)

  • Attorney General v Shah (1971) EA 50
  • Baku Raphel Obudra & Another v Attorney General [2006] UGSC 5
  • South British Insurance Co. Ltd v Mohamedali Taibji Ltd [1973] EA 210
  • Makhangu v Kibwana [1995-1998] 1 EA 175
  • Hwansung Ltd v M & D Timber Merchants and Transporters [2018] UGSC 95
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.