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Bitamisi v Rwabuganda [2017] UGSC 19

Supreme Court · 2017 Leave to Appeal Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to lodge a third appeal, following the Court of Appeal's refusal of a certificate of public or general importance.
Decision
Application allowed; the applicant granted leave to lodge and argue her third appeal in the Supreme Court on its merits

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Holding

The Supreme Court granted leave for a third appeal, finding it raised matters of great public importance. The Court of Appeal appeared to exceed its jurisdiction by deciding land ownership in an appeal arising only from an application to set aside an ex parte judgment, whose purpose is merely to enable an inter partes rehearing. The intended appeal would also let the Court revisit the apparent conflict between Order 5 rule 18 of the Civil Procedure Rules, which makes substituted service as effectual as personal service, and its earlier decision in Geoffrey Gatete v Kyobe. The Court of Appeal had further left unaddressed the interests of third-party bonafide purchasers and estate beneficiaries affected by its orders. Under section 6(2) of the Judicature Act the Court may grant leave in its overall duty to do justice.

Facts

The applicant, administratrix of her late father's estate, discovered that part of the estate land had been irregularly registered in the respondent's name. She filed a claim at the Kiboga District Land Tribunal alleging fraud and seeking rectification of the register. The respondent could not be personally served, so the Tribunal ordered substituted service by newspaper advertisement, which was effected. The respondent did not appear; the Tribunal entered an ex parte judgment for the applicant and referred cancellation to the High Court, which granted consequential orders registering her. The respondent later obtained an extension of time and applied to set aside the ex parte judgment; the magistrate and the High Court refused. On further appeal the Court of Appeal, sitting ex parte, set aside the lower decisions, dismissed the suit for defective service, ordered cancellation of the applicant's registration, reinstated the respondent and ordered him into possession. Meanwhile the applicant had sold parts of the land to third parties who had become registered proprietors claiming to be bonafide purchasers for value. The Court of Appeal refused a certificate to lodge a third appeal, prompting this application.

Issues

  1. Whether the applicant raised matters of great public or general importance, or matters such that the Supreme Court's overall duty to do justice requires the intended third appeal to be heard under section 6(2) of the Judicature Act and Rule 39(1)(b) of the Judicature (Supreme Court) Rules.
  2. Whether an appellate court hearing an appeal arising only from an application to set aside an ex parte judgment has power to determine ownership of the disputed land in that same appeal.
  3. Whether substituted service under Order 5 rule 18 of the Civil Procedure Rules constitutes effective service.

Orders

  • Leave is hereby granted to the applicant to file her third appeal in this Court, in accordance with the Rules of this Court.
  • Costs will abide the determination of the appeal.

Key headnotes

Civil Procedure — Third Appeals — Leave under Section 6(2) Judicature Act
In deciding whether to grant leave for a third appeal, the Supreme Court is not confined to the questions of law of great public or general importance that bind the Court of Appeal; under section 6(2) of the Judicature Act it may grant leave whenever, in its overall duty to see that justice is done, it considers that the appeal should be heard.
Civil Procedure — Ex Parte Judgment — Scope of Appellate Jurisdiction on Setting Aside
A court setting aside an ex parte judgment cannot in the same judgment proceed to determine and dispose of the underlying suit on its merits ex parte; the purpose of setting aside is to enable the matter to be heard afresh inter partes, and an appellate court seized only of such an application exceeds its jurisdiction by deciding the substantive dispute.
Civil Procedure — Substituted Service — Effectiveness under Order 5 rule 18 CPR
Under Order 5 rule 18(2) of the Civil Procedure Rules, substituted service made under an order of court is as effectual as personal service, and under rule 18(3) the court ordering substituted service must fix a time for the defendant's appearance; the issuance of a notice fixing that time accords with the rule.
Civil Procedure — Service of Process — Errors by Court Officials
Where an error arises in the form of process issued by tribunal or court officials following an order for substituted service, that error is not attributable to the party who applied for substituted service, who cannot be held liable for mistakes made by court officials.
Land & Property — Bonafide Purchaser for Value — Protection under Registration of Titles Act
Section 181 of the Registration of Titles Act protects a purchaser of land for value without notice of another's claim and without actual or constructive notice of any defect, claim or equity against the seller's title; a court making orders affecting registered land must address the redress of such third-party purchasers before disturbing their registration.
Succession & Estates — Administrator — Representative Capacity and Beneficiaries' Right to be Heard
An administrator who litigates to protect estate property acts in a representative capacity and cannot be faulted for acting vigilantly to protect the estate; beneficiaries of the estate who are affected by orders made in proceedings to which they were not party stand to be condemned without being heard.

Legislation cited (7)

  • Judicature Act s.6(2)
  • Judicature (Supreme Court) Rules r.39(1)(b)
  • Civil Procedure Rules Order 5 r.18
  • Civil Procedure Rules Order 5 r.2
  • Land (Amendment) Act 2005 s.31(d)
  • Land Act s.76(3)
  • Registration of Titles Act Cap 230 s.181

Cases cited (5)

  • Geoffrey Gatete & Anor v William Kyobe (Civil Appeal No. 07 of 2005)
  • Farook Aziz v Abdalla Abdu Makuru (Civil Appeal No. 04 of 2002)
  • Namuddu Christine v Uganda (Civil Application No. 03 of 1999)
  • Pirbhai Lalji v. Hassanali, (1962) EA 306
  • St. Aubyn (LM) vs. A.G. (1951) 2 All ER 473
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.