Wakilii

Heather & Another v Ddungu (Miscellaneous Application 2478 of 2024)

High Court · [2024] UGHCLD 269 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte order in underlying land trespass suit
Decision
Exparte order set aside; matter to proceed to hearing on merits with both parties participating

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court set aside an exparte order where applicants demonstrated that their former counsel abandoned the case without notice and they were not personally served with hearing notices. Despite applicants' own lack of diligence in following up the matter, the court exercised its inherent jurisdiction under Section 98 of the Civil Procedure Act to allow the applicants to defend on merits, particularly given their claim to hold freehold title to the disputed land.

Outcome

Exparte order set aside; matter to proceed to hearing on merits with both parties participating

Facts

The respondent sued the applicants for trespass on land comprised in LRV KCCA 539 Folio 19 in Civil Suit No. 442 of 2022. The applicants instructed M/s Arcadia Advocates who filed a defence but then abandoned the case without notifying the applicants. The court granted an exparte order allowing the matter to proceed in the applicants' absence. The applicants were not personally served with hearing notices and only learned of the proceedings when the court visited locus. The applicants discovered that their former counsel in personal conduct of the matter had left the firm without proper handover. The applicants claimed to hold freehold title Volume 1615 Folio 10 Plot 5 Njobe Road as joint tenants, issued in 2015 pursuant to an allocation by Kampala District Land Board in 2012. The applicants sought to set aside the exparte order to present this evidence and defend on merits.

Issues

  1. Whether there is sufficient cause to set aside the order granted to the respondent to proceed exparte in the main suit.

Orders

  • The exparte order granted to the respondent to proceed exparte in Civil Suit No. 0442 of 2022 is set aside.
  • The applicants are allowed to defend the suit on merits.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Orders — Mistake of Counsel — Balance Between Counsel Default and Litigant Diligence
While mistake of counsel cannot ordinarily be visited upon a litigant, the litigant must also show diligence in following up their matter even after instructing counsel; however, where counsel abandons a case without notice and the litigant was not personally served with hearing notices, the court may exercise its inherent jurisdiction under Section 98 of the Civil Procedure Act to set aside an exparte order in the interests of justice.
Civil Procedure — Fair Hearing — Constitutional Right Under Article 28
The constitutional right to a fair hearing under Article 28 requires that parties be given an opportunity to be heard before an independent tribunal, and this right should not be defeated on the ground of counsel's mistake where the litigant was not personally served and did not participate in the proceedings.
Civil Procedure — Setting Aside Exparte Orders — Material Evidence Justifying Relief
Where applicants claim to hold a freehold certificate of title to the disputed land which was not placed before the court in exparte proceedings, such material evidence cannot be overlooked and provides sufficient cause to set aside the exparte order and allow the parties to be heard on the merits.

Legislation cited (4)

Cases cited (5)

  • Cooperative Union Ltd v The Registrar of Titles (Miscellaneous Cause No. 48 of 2009)
  • Samwiri Massa v Rose Achen (1978) HCB 297
  • Capt. Phillip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Nakiride vs Hotel International Ltd [1987] 85
  • Parker v Parker [1953] 1 ALL ER 929

Full judgment

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

Heather_&_Another_v_Ddungu_(Miscellaneous_Application_2478_of_2024)_[2024]_UGHCLD_269_(15_November_2024)
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.