Wakilii

Nicholas Roussos v Ghulam Hussein Habib Virani [1993] UGSC 19

Supreme Court · 1993 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a High Court order overruling a preliminary objection to an application to set aside an ex parte judgment
Decision
Appeal allowed; the High Court ruling set aside and the preliminary objection upheld with costs to the appellant in both courts

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Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court allowed the appeal, holding that the principles governing applications to set aside ex parte judgments under Order 9 r.9 and Order 9 r.24 of the Civil Procedure Rules are different: r.9 confers a wide, unfettered discretion, whereas r.24 requires the applicant to show that summons was not duly served or that sufficient cause prevented appearance. Because the ex parte judgment here was pronounced after a hearing under Order 18 r.1, and not entered pursuant to the preceding rules (rr.4–7) referenced in r.9, the application to set it aside should have been brought under r.24, not r.9. The trial judge erred, and the preliminary objection was upheld with costs.

Facts

The appellant's mother sued the respondents seeking cancellation of their registration as proprietors of leasehold land and a house at Plot 30 Windsor Crescent, Kampala, alleging the title was obtained unlawfully. Because the respondents were out of the country and could not be served, the appellant obtained leave to effect service by newspaper advertisement. The respondents did not respond, the suit was set down for hearing ex parte, and judgment was entered in favour of the appellant's mother on 18 August 1982. The respondents, who said they had been expelled from Uganda in 1972 and lived in Britain until 1992, returned in July 1992 to repossess the property and learned of the judgment. They applied under Order 9 r.9 of the Civil Procedure Rules to set it aside, asserting they were not served, the advertised summons was inappropriate given their expulsion, and they had a good defence in that the appellant had sold them the property and executed a transfer registered in 1969. The appellant raised a preliminary objection that the application was brought under the wrong rule.

Issues

  1. Whether there is specific legislation governing applications to set aside ex parte judgments, or a lacuna in the law.
  2. Whether the legal principles applicable to applications under Order 9 r.9 and Order 9 r.24 of the Civil Procedure Rules are the same.
  3. Whether the application to set aside the ex parte judgment was properly brought under Order 9 r.9 of the Civil Procedure Rules.

Orders

  • Appeal allowed.
  • Ruling and order for costs of the trial judge set aside.
  • Order substituted upholding the preliminary objection.
  • Costs to the appellant in the appeal and in the lower court.

Key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Distinction between Order 9 r.9 and Order 9 r.24
The legal principles applicable to applications to set aside ex parte judgments under Order 9 r.9 and Order 9 r.24 of the Civil Procedure Rules are different: r.9 confers a wide and unfettered discretion exercisable judicially in light of the facts and merits, whereas under r.24 the discretion is limited to cases where the applicant shows that the summons was not duly served or that he was prevented by sufficient cause from appearing.
Civil Procedure — Ex Parte Judgment after Hearing — Rule Applicable to Setting Aside
Where a suit is set down and heard ex parte under Order 9 r.8A and judgment is pronounced after a hearing under Order 18 r.1, the judgment is not entered pursuant to any of the preceding rules referred to in Order 9 r.9 (which extends only to rr.4 to 7); accordingly an application to set such a judgment aside must be brought under Order 9 r.24, not under Order 9 r.9.
Statutory Interpretation — Lacuna — Existence of Specific Legislation
The existence of specific rules governing a matter is not negated by the courts' failure to decide which of two rules applies to a particular application; such uncertainty does not constitute a lacuna in the law.
Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause under Order 9 r.24
Circumstances capable of amounting to sufficient cause under Order 9 r.24 include an advocate's negligent mistake, an unrepresented defendant's ignorance of procedure, and a party's illness; a mere failure to instruct an advocate does not amount to sufficient cause, and the merits of the case are not considered on an application under that rule.

Legislation cited (10)

  • Civil Procedure Rules Order 9 r.9
  • Civil Procedure Rules Order 9 r.24
  • Civil Procedure Rules Order 9 r.8A
  • Civil Procedure Rules Order 9 r.4
  • Civil Procedure Rules Order 9 r.5
  • Civil Procedure Rules Order 9 r.6
  • Civil Procedure Rules Order 9 r.7
  • Civil Procedure Rules Order 18 r.1
  • Civil Procedure Rules Order 46
  • Civil Procedure Act s.101

Cases cited (13)

  • Kimani v McConnell (1966) E.A. 547
  • Mbogo v Shah (1968) E.A. 93
  • Kafero v Standard Bank (1970) E.A. 429
  • Patel v E.A. Cargo Handling Services (1974) E.A. 75
  • Sebei District Administration v Gashali (1968) E.A. 300
  • Waweru v Ndinga (1982-88) 1 K.A.R. 210
  • Shabin Din v Ram Parkash Anand (1955) 22 E.A.C.A. 48
  • Zirabamuzaale v Correct (1962) E.A. 694
  • Patel v Star Mineral Water and Ice Factory (1961) E.A. 454
  • Mitha v Ladak (1960) E.A. 1054
  • Fort Hall Bakery Supply Co v F.M. Wangoe (1958) E.A. 118
  • Pithon W. Mama v Mugiria (1982-88) 1 K.A.R. 171
  • Otanga v Nabunjo (1965) E.A. 384
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.