Wakilii

Bitamisi Namuddu v Rwabuganda Godfrey (Civil Application 4 of 2015)

Supreme Court · [2017] UGSC 85 · 2017 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to file a third appeal, following the Court of Appeal's refusal of a certificate of importance
Decision
Application for leave to file a third appeal allowed; leave granted

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Cited — treatment unverified cited in 3 (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 granted leave for a third appeal. Under section 6(2) of the Judicature Act the Court may grant leave whenever, in its overall duty to do justice, it considers an appeal should be heard, and is not confined to the two public-importance grounds binding the Court of Appeal. The Court found the intended appeal raised issues of great public importance: whether an appellate court setting aside an ex parte judgment may also determine ownership of the land; the effectiveness of substituted service under Order 5 rule 18 as against the Court's earlier decision in Gatete v Kyobe; and the position of affected third-party bona fide purchasers. Leave was accordingly granted, with costs to abide the appeal.

Facts

The applicant, as administratrix of her late father's estate, discovered that part of the estate land at Nakatakuli, Kiboga had been irregularly registered in the respondent's name. She claimed conversion, trespass and fraudulent entries before the Kiboga District Land Tribunal. The respondent could not be personally served; after substituted service by newspaper advertisement and his non-appearance, the Tribunal entered an ex parte judgment in the applicant's favour and the matter went to the High Court for consequential orders, leading to the applicant's registration as owner. The respondent later obtained leave out of time and pursued applications and appeals to set aside the ex parte judgment. The Court of Appeal, hearing the appeal ex parte, found court process had not been served, set aside the lower judgments, dismissed the suit, ordered cancellation of the applicant's title and her eviction. The Court of Appeal refused a certificate of public importance, prompting this application for leave to bring a third appeal. Parts of the land had since been sold to third-party purchasers affected by the orders.

Issues

  1. Whether the applicant raised matters of law of great public or general importance, or matters requiring the Court's intervention to do justice, sufficient to warrant leave to lodge a third appeal 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 from an application to set aside an ex parte judgment has power to determine and grant orders of ownership of the suit land in that same appeal.
  3. Whether substituted service ordered under Order 5 rule 18 of the Civil Procedure Rules constitutes effective service, in light of the apparent conflict between rule 18(2) and the Supreme Court's decision in Gatete v Kyobe.

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) of the Judicature Act — Court's overall duty to do justice
On an application for leave to lodge a third appeal, the Supreme Court is not restricted to the two grounds (questions of law of great public or general importance) that bind the Court of Appeal when considering a certificate; 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, taking into account anything relevant to doing justice.
Civil Procedure — Setting aside ex parte judgment — Scope of appellate jurisdiction
A court that sets aside an ex parte judgment cannot, in the same decision, proceed to determine and dispose of the underlying suit on its merits ex parte; the purpose of setting aside is to have the matter reheard inter partes, and an appellate court seized only of an appeal against refusal to set aside an ex parte judgment exceeds its jurisdiction by granting substantive orders of ownership.
Civil Procedure — Substituted Service — Effectiveness under Order 5 rule 18 of the Civil Procedure Rules
Order 5 rule 18(2) of the Civil Procedure Rules provides that substituted service under an order of court is as effectual as personal service on the defendant, and upon ordering substituted service the court fixes the time for the defendant's appearance under rule 18(3); whether such service is effective only when it actually comes to the defendant's notice is a question of great public importance given the apparent tension with the Supreme Court's decision in Gatete v Kyobe.
Land & Property — Bona fide purchaser for value without notice — Protection under section 181 of the Registration of Titles Act
Section 181 of the Registration of Titles Act protects a purchaser of land for value without actual or constructive notice of another's claim or of defects in the seller's title; where third parties who acquired interests in the suit land are affected by orders cancelling title, their position as possible bona fide purchasers must be considered, and they should not be condemned without being heard.

Legislation cited (8)

  • Judicature Act s.6(2)
  • Judicature (Supreme Court) Rules r.39(1)(b)
  • Civil Procedure Rules (S.I. 71-1) Order 5 r.18
  • Civil Procedure Rules (S.I. 71-1) Order 5 r.18(2)
  • Civil Procedure Rules (S.I. 71-1) Order 5 r.18(3)
  • Registration of Titles Act Cap 230 s.181
  • Land (Amendment) Act 2005 s.31(d)
  • Land Act s.76(3)

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) v 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.