Wakilii

Buso Foundation Ltd v Bob Mate Phillips & Anor (CIVIL APPEAL NO.40 OF 2009)

High Court · [2017] UGHCCD 161 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of application to set aside exparte judgment
Decision
Exparte judgment set aside, property ordered restored to the appellant, subsequent transfers cancelled, vacant possession ordered within one month

Observed later treatment

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Holding

The High Court allowed the appeal and set aside the exparte judgment obtained through a summary suit for employment arrears. The Chief Magistrate erred in refusing to set aside the exparte judgment where counsel's negligence prevented the appellant from attending court. The Magistrate lacked both material jurisdiction—because employment disputes fell under the Employment Act 2006 s.93 requiring referral to a labour officer—and geographical jurisdiction over property in Wakiso District. The subsequent attachment and sale violated mandatory procedures: no service of the attachment order on the judgment debtor, no deposit of the duplicate certificate before sale, immediate sale without advertising or the required 30-day notice period, and issuance of a special certificate without satisfying the statutory preconditions. These illegalities vitiated all transfers, rendering them void ab initio. The court ordered restoration of the property to the appellant and cancellation of the subsequent registrations.

Outcome

Exparte judgment set aside, property ordered restored to the appellant, subsequent transfers cancelled, vacant possession ordered within one month

Facts

The 1st Respondent sued the Appellant by summary suit in the Chief Magistrate's Court claiming UGX 12,000,000 for alleged unpaid salary under an employment contract. The Appellant denied ever employing the 1st Respondent and claimed the employment contract was forged. On 26 February 2009, the Magistrate entered exparte judgment. Six days later, on 4 March 2009, the Appellant's property (Kyadondo Plot 435, Block 92B, Matugga) was sold to the 2nd Respondent for UGX 22 million. The bailiff paid the decretal sum and legal fees directly from the proceeds. The Appellant only learned of the judgment and sale on 31 March 2009 when its tenant received an eviction notice. A Special Certificate of Title was issued without requiring the Appellant to surrender the duplicate certificate. The 2nd Respondent subsequently transferred the property to Mr. Sengooba on 2 December 2009, despite the Appellant having lodged a caveat on 10 August 2009. The Appellant filed an application to set aside the exparte judgment, which the Magistrate dismissed on 15 May 2009.

Issues

  1. Whether the High Court had jurisdiction to join the 2nd Respondent to the appeal, and if so whether the joinder was prejudicial to the 2nd Respondent.
  2. Whether the learned Trial Magistrate misdirected himself when he held that the Appellant had not proved sufficient cause to warrant setting aside the exparte judgment under Order 9 rule 27 of the Civil Procedure Rules.
  3. Whether considering the subject matter of the suit as per the pleadings, the learned Trial Magistrate had jurisdiction to entertain and adjudicate over the dispute.
  4. Whether the sale and transfer of the suit property to the 2nd Respondent was conducted in a manner contrary to provisions of the Civil Procedure Act and Rules.
  5. Whether the Appellant is entitled to the relief sought.

Orders

  • Appeal allowed.
  • Exparte judgment set aside.
  • The sale and transfer of the Appellant's land declared illegal, null and void ab initio.
  • The Registrar of Titles ordered to cancel the transfer and ownership of the suit land in the names of Mr. Sengooba and/or Mr. Muwanga immediately.
  • The Registrar of Titles ordered to restore ownership of the suit land to the Appellant immediately.
  • The Appellant's caveat to be removed only after such transfer or in relation thereto.
  • If the 1st Respondent is still interested in pursuing his claim against the Appellant, he should file a complaint before the Labour Officer as prescribed under Section 93 of the Employment Act of 2006.
  • Mr. Sengooba may claim any consideration for the transfer to him from Mr. Muwanga.
  • Mr. Muwanga may claim any consideration for the transfer to him from the 1st Respondent.
  • The Appellant to be given vacant possession of the suit property at the latest within one month from the date of judgment.
  • Costs of the appeal and in the lower Court awarded to the Appellant to be paid by the 1st Respondent.

Rules and key headnotes

Setting aside exparte judgments — Sufficient cause — Counsel's negligence
A mistake by an advocate, though negligent, may be accepted as sufficient cause to set aside an exparte judgment under Order 9 rule 27 of the Civil Procedure Rules. Errors or lapses of counsel should not be visited on litigants who have no control over advocates, and denying a party the opportunity to be heard should be the last resort of court.
Jurisdiction — Employment Act 2006 s.93 — Magistrates' Courts
Employment disputes arising under the Employment Act 2006 must be referred to a labour officer in the first instance as mandated by Section 93 of that Act. A Magistrate's Court lacks jurisdiction to entertain such disputes notwithstanding Section 207 of the Magistrates Courts Act, because jurisdiction is subject to other written law including the Employment Act. The Employment Act was enacted specifically to handle employment disputes.
Attachment and sale of land — Mandatory procedural requirements
Under Order 22 rule 51(2) of the Civil Procedure Rules, an order of attachment must be served on the judgment debtor. Under Section 48(1) of the Civil Procedure Act, the duplicate certificate of title must be deposited in court before sale. Rule 63(1) requires that intended sale be advertised, and rule 64 mandates at least thirty days notice before sale of immovable property. These requirements are mandatory and failure to comply renders the sale irregular.
Special Certificate of Title — Conditions for issuance under s.48 CPA
Before ordering the Registrar of Titles to issue a Special Certificate of Title under Section 48(4) of the Civil Procedure Act, the court must first order the judgment debtor to deliver up the duplicate certificate or show cause why it should not be delivered, and must be satisfied that the judgment debtor has willfully refused or that the certificate has been lost or destroyed or the debtor cannot be served. The issuance of a Special Certificate is a delicate matter to be exercised only in exceptional circumstances.
Court bailiffs — Remittance of sale proceeds
Under Order 22 Rule 78(2)(c) and Rule 15 of the Judicature (Court Bailiff) Rules, a court bailiff must remit in court all proceeds of execution within seven days and thereafter submit a bill of costs for taxation. Court bailiffs are not permitted to pay themselves or anybody else directly from the proceeds of sale in execution. This requirement is mandatory.
Illegality in execution — Effect on title — Restoration
Where execution of a judgment and sale of immovable property is conducted in contravention of mandatory statutory requirements, the illegality vitiates the transfer of title and renders the sale void ab initio. The sold property remains the property of its owner. When execution has been irregularly executed, the court is enjoined to make an order of restoration. A court of law cannot sanction an illegality once brought to its attention.
Joinder of parties — Section 98 Civil Procedure Act — Interests affected by appeal
Under Section 98 of the Civil Procedure Act, the court has wide discretion to make such orders as may be necessary for the ends of justice or to prevent abuse of process. Where a person has rights associated with property that is the subject matter of an appeal, and those rights could be affected by the determination of the appeal, the court may join that person as a party in the interest of justice and to enable them to exercise their constitutional right to be heard.

Legislation cited (22)

Cases cited (19)

  • Father Nanensio Begumisa and 3 Ors v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2004)
  • FK Zabwe v Orient Bank and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Florence Nabatanzi v Naome Binsobedde (Supreme Court Civil Application No. 6 of 1987)
  • Hikima Kyamanywa v Sajjabi Chris (Court of Appeal Civil Appeal No. 1 of 2006)
  • Nicholas Roussos v Gulamu Hussein Habib Virani & Others (Supreme Court Civil Appeal No. 9 of 1993)
  • Goloba Godfrey v Harriet Kizito (Supreme Court Civil Appeal No. 7 of 2010)
  • Bank Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Engineering TradeLinks Ltd v DFCU Bank Ltd (Miscellaneous Application No. 337 of 2014)
  • Hilder Musinguzi v Stanbic Bank (High Court Civil Suit No. 124 of 2008)
  • National Medical Stores v Penjuine Limited (High Court Civil Appeal No. 29 of 2010)
  • Sinba (K) Ltd & Ors v Uganda Broadcasting Corporation (Supreme Court Civil Appeal No. 3 of 2014)
  • Rosemary Elenaor Karamagi v Angoliga Malimound (Miscellaneous Application No. 733 of 2005)
  • James Kabaterine v Charles Oundo & Anor (High Court Civil Suit No. 177 of 1994)
  • Noor Muhammed v Jaffery Wanami (Civil Revision No. 2 of 2007)
  • Enid Tumwebaze v Mpeire Stephen and Anor (High Court Civil Appeal No. 39 of 2010)
  • Karooli Mubiru & 21 Others v Edmond Kayiwa & 5 Others [1979] HCT 212
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1982] HCB 11
  • Kanoonya David v Kivumbi & 2 Ors (High Court Civil Suit No. 616 of 2003)
  • Eldreda Muchope v Diamond Trust Bank (U) Ltd & Anor (Miscellaneous Application No. 70 of 2006)

Full judgment

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Buso Foundation Ltd v Bob Mate Phillips & Anor (CIVIL APPEAL NO.40 OF 2009) [2017] UGHCCD 161 (22 December 2017)
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.