Wakilii

Betty Nakabugo v Ititu Grace (Civil Appeal No. 22 of 2020)

High Court · [2025] UGHC 850 · 2025 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court ruling dismissing application to set aside ex parte judgment
Decision
Orders in lower court set aside; matter remitted for Appellant to file defence and for fresh hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the trial magistrate erred in law by granting an interlocutory judgment under Order 9 Rule 8 of the Civil Procedure Rules in a suit not claiming pecuniary damages or detention of goods. The court further held that when proceeding under Order 9 Rule 10, a hearing notice must be served on the defendant even where no written statement of defence has been filed. The trial magistrate also erred by relying on an affidavit of service that he himself commissioned and that bore no proof of proper filing. The appeal was allowed and the orders in the lower court set aside.

Outcome

Orders in lower court set aside; matter remitted for Appellant to file defence and for fresh hearing

Facts

The Respondent sued the Appellant in the Chief Magistrate's Court for trespass to land measuring 35m by 35m in Ainga Cell, Nyangilia, Koboko, seeking a declaration of ownership, permanent injunction, vacant possession, damages and costs. The trial magistrate found that the Appellant had been effectively served but failed to enter appearance or file a defence. He entered an interlocutory judgment under Order 9 Rules 8 and 10 of the Civil Procedure Rules and set the matter for formal proof. After hearing, the trial magistrate found for the Respondent. The Appellant applied to set aside the judgment and decree, but the application was dismissed. The Appellant appealed to the High Court.

Issues

  1. Whether the trial magistrate erred in law by granting an interlocutory judgment under Order 9 Rule 8 of the CPR in a suit not claiming pecuniary damages or detention of goods.
  2. Whether the trial magistrate erred in law by failing to serve hearing notices on the Appellant when proceeding under Order 9 Rule 10 of the CPR.
  3. Whether the trial magistrate erred by relying on an affidavit of service that he himself commissioned and that was not properly filed with the court.

Orders

  • Appeal allowed.
  • Orders in Miscellaneous Application No. 0004 of 2020 set aside.
  • Orders in Civil Suit No. 0006 of 2019 set aside.
  • Appellant directed to file and serve written statement of defence within fifteen days from date of judgment.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Interlocutory Judgment — Order 9 Rule 8 CPR — Inapplicability Where No Claim for Pecuniary Damages or Detention of Goods
Order 9 Rule 8 of the Civil Procedure Rules applies only to suits claiming pecuniary damages or detention of goods. It is inapplicable and erroneous to grant an interlocutory judgment under that rule in a suit for declaration of ownership and trespass where no pecuniary damages or detention of goods are claimed.
Civil Procedure — Ex Parte Proceedings — Order 9 Rule 10 CPR — Requirement to Serve Hearing Notice on Defendant
When a suit proceeds ex parte under Order 9 Rule 10 of the Civil Procedure Rules, a hearing notice must be served on the defendant despite the fact that the defendant did not file a written statement of defence. The phrase 'as if that party had filed a defence' requires that the procedure be similar to one where a defence has been filed, including setting a hearing date and serving hearing notice on the defendant.
Civil Procedure — Right to Fair Hearing — Failure to File Defence Does Not Lock Defendant Out of Proceedings
Failure to file a written statement of defence does not ipso facto lock the defendant out of proceedings in the Magistrates' Court. Parties must be given a fair hearing before a decision is made.
Civil Procedure — Commissioner for Oaths — Conflict of Interest — Magistrate Commissioning Affidavit in Own Case
A commissioner for oaths shall not exercise powers in a matter in which he or she is concerned. A magistrate conducting a hearing should not commission an affidavit of service in a case before him, as this raises concerns about conflict of interest and the possibility of being called as a witness in his capacity as commissioner for oaths.
Civil Procedure — Filing of Documents — Affidavit Not Properly Filed Cannot Form Part of Record
A document cannot form part of the court record unless it is appropriately filed before the court or admitted by the court. An affidavit bearing no receiving stamp and no proof of payment of filing fees is not properly filed and ought to be rejected.
Civil Procedure — Illegality — Court Cannot Overlook Illegality Brought to Its Attention
Once an illegality has been brought to the court's attention, it cannot be overlooked, even if raised in an amended memorandum of appeal filed out of time and without leave.

Legislation cited (6)

Cases cited (6)

  • Makula International Ltd v His Eminence Cardinal Nsubuga and others (1982) HCB 11
  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Kifamunte Henry v Uganda (SCCA No. 003 of 1997)
  • Carlton Douglas Kasirye v Sheema Ahumuza Bageine (HCMA No. 150 of 2020)
  • Roberts BK Ssebunya v Attorney General (1980) HCB 68
  • Jalia Naiga v Issa Ssekabira (CACA No. 195 of 2018)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Betty Nakabugo v Ititu Grace (Civil Appeal No. 22 of 2020) [2025] UGHC 850 (5 August 2025)
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.