Wakilii

Muyonjo & Another v The Registered Trustees of Namirembe Diocese (Civil Appeal 33 of 1993)

Supreme Court · [1994] UGSC 32 · 1994 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling refusing to set aside an ex-parte judgment
Decision
Ex-parte judgment set aside and case remitted to the High Court for hearing.

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Holding

The Supreme Court held that Order 9 rule 3 of the Civil Procedure Rules, which deals only with the filing of an affidavit of service, does not empower a Registrar to enter an interlocutory judgment. The interlocutory judgment entered by the Deputy Registrar was therefore a nullity, and the ex-parte judgment passed at the end of the 'formal proof' proceedings was invalid. Both the respondents' and appellants' counsel agreed the ex-parte judgment was wrong. The appeal was allowed with costs, the order refusing to set aside the ex-parte judgment was set aside, the ex-parte judgment itself was set aside, and the case was remitted to the High Court for hearing.

Facts

The respondents, claiming to own a seven-acre piece of land at Lukuli near Kampala (Plot Nos. 288 and 293), sued the appellants, a mother and son, in the High Court for trespass and malicious damage to property. They sought an eviction order, a permanent injunction, special damages of Shs.2,000,000 for a damaged fence, general damages and costs. The appellants passed the summons and plaint to their lawyers with instructions to defend, but the lawyers neither entered an appearance nor filed a written statement of defence. The respondents obtained an interlocutory judgment, which the Deputy Registrar purported to enter under Order 9 rule 3 of the Civil Procedure Rules. Following ex-parte 'formal proof' proceedings before Kityo J, judgment was delivered granting all the remedies sought. The appellants applied to set aside the ex-parte judgment, contending among other grounds that they were long-standing customary tenants. The High Court refused the application for want of sufficient cause, leading to this appeal.

Issues

  1. Whether the interlocutory judgment entered by the Deputy Registrar under Order 9 rule 3 of the Civil Procedure Rules was a nullity.
  2. Whether, the interlocutory judgment being a nullity, the ex-parte judgment founded on it and the High Court's refusal to set it aside should be set aside.

Orders

  • Appeal allowed with costs.
  • Order of the High Court refusing to set aside the ex-parte judgment set aside.
  • Ex-parte judgment set aside.
  • Case remitted to the High Court for hearing.
  • Costs of the suit in the High Court to abide the event.

Key headnotes

Civil Procedure — Default Judgment — Power of Registrar to enter interlocutory judgment under Order 9 rule 3
Order 9 rule 3 of the Civil Procedure Rules concerns only the filing of an affidavit of service by a plaintiff who wishes to proceed against a defendant who has not entered appearance, and does not empower a Registrar to enter an interlocutory judgment; an interlocutory judgment purportedly entered under that rule is a nullity.
Civil Procedure — Ex-parte Judgment — Effect of a nullity in the foundational interlocutory judgment
Where the interlocutory judgment on which ex-parte 'formal proof' proceedings are founded is a nullity, the ex-parte judgment and decree that follow are invalid and must be set aside.
Civil Procedure — Default of Appearance — Appropriate rule where the claim is not for a liquidated sum
An interlocutory judgment under Order 9 rules 4 or 6 of the Civil Procedure Rules is inapplicable to a suit that is not for a liquidated demand or pecuniary damages; where a defendant has not entered appearance in such a suit, the appropriate course is to proceed under rule 8.

Legislation cited (8)

  • Civil Procedure Rules O.9 r.3
  • Civil Procedure Rules O.9 r.4
  • Civil Procedure Rules O.9 r.5
  • Civil Procedure Rules O.9 r.6
  • Civil Procedure Rules O.9 r.8
  • Civil Procedure Rules O.9 r.9
  • Civil Procedure Rules O.9 r.24
  • Rules of the Supreme Court r.42(3)(a)
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.