Wakilii

Kaloli Mubiru and 21 Others v Kayima and 5 Others (Civil Appeal 3 of 1999)

Court of Appeal · [1979] UGCA 1 · 1979 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order dismissing an application to set aside an ex-parte judgment
Decision
Ex-parte judgment and execution quashed as a nullity; respondents ordered to restore possession of the land and refund proceeds of the sale, without prejudice to their original suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a claim for an order of eviction and mesne profits could not be entered as an interlocutory ex-parte judgment under Order 9 rule 6; such suits fall under Order 9 rule 8, which requires the ordinary trial procedure of fixing the case and serving a hearing notice. As no trial took place, the Deputy Chief Registrar had no jurisdiction to enter the ex-parte judgment, rendering it a nullity. A judgment entered without jurisdiction is a nullity that the affected person is entitled to have set aside as of right, and that an execution had been completed and the judgment satisfied was no bar to quashing it.

Outcome

Ex-parte judgment and execution quashed as a nullity; respondents ordered to restore possession of the land and refund proceeds of the sale, without prejudice to their original suit

Facts

On 14 April 1976 the respondents filed a civil suit in the High Court against the appellants seeking an order of eviction and mesne profits. The appellants were duly served but entered no appearance. An ex-parte judgment was applied for and entered by the Deputy Chief Registrar on 23 June 1976 under Order 9 rule 6. A decree dated 26 August 1976 was extracted, and an application for execution was made on 27 October 1976. The court issued an execution order on 15 November 1976 and the eviction order was executed against the appellants. A further application for execution by attachment of moveable property was made to satisfy costs. Warrants of attachment and sale issued, and 18 goats, a scooter and a bicycle belonging to the appellants were attached and sold on 27 February 1978. On 21 June 1978 the appellants applied by notice of motion to set aside the ex-parte judgment. That application was dismissed on 25 September 1978, prompting this appeal.

Issues

  1. Whether the Deputy Chief Registrar had jurisdiction to enter the ex-parte judgment against the appellants under Order 9 of the Civil Procedure Rules.
  2. Whether a judgment entered without jurisdiction, and an execution completed under it, should be set aside notwithstanding that the judgment had already been satisfied.

Orders

  • Appeal allowed.
  • Ruling of the learned trial judge set aside.
  • Judgment of the learned Deputy Chief Registrar quashed and any orders made pursuant to that judgment set aside.
  • The respondents to restore possession of the land to the appellants and pay to them the sums of money realised from the sale of their property.
  • These orders are not intended to prejudice the respondents' original suit should they choose to pursue their claim.
  • The respondents shall pay the costs of the appellants in this court and in the court below.

Rules and key headnotes

Civil Procedure — Ex-parte Judgment — Suits Excluded from Interlocutory Judgment under Order 9 rule 8
A claim for an order of eviction and mesne profits falls under Order 9 rule 8 of the Civil Procedure Rules and is excluded from the general rule permitting an interlocutory ex-parte judgment; such a suit must follow the ordinary trial procedure of fixing the case and serving a hearing notice on the defendant.
Civil Procedure — Jurisdiction — Ex-parte Judgment Entered Without Trial
Where a suit must proceed to trial under the ordinary rules of procedure and no trial takes place, a registrar has no jurisdiction to enter an ex-parte judgment, and any such judgment is a nullity.
Civil Procedure — Setting Aside — Judgment Without Jurisdiction is a Nullity
A judgment of a court given without jurisdiction is a nullity which the person affected by it is entitled to have set aside ex debito justitiae, and the court need make no inquiry into the merits once it concludes that the judgment was entered without jurisdiction.
Civil Procedure — Execution — Effect of Satisfaction of a Void Judgment
Any execution completed under a judgment that is a nullity is void ab initio; the fact that the judgment has been satisfied and execution completed is no good reason for declining to quash it, and the order, writ of possession and execution made under it must be set aside.

Legislation cited (3)

  • Civil Procedure Rules O.9 r.5
  • Civil Procedure Rules O.9 r.6
  • Civil Procedure Rules O.9 r.8

Cases cited (3)

  • Craig vs Lamoureux (1943) 1 All E.R. 108 at 113
  • Miratsahu vs Maro (1967) E.A. 42
  • Fleet Mortgage vs Lower Maisonette (1972) 2 All E.R. 737

Full judgment

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

Kaloli Mubiru and 21 Others v Kayima and 5 Others (Civil Appeal 3 of 1999) [1979] UGCA 1 (1 November 1979)
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.