Wakilii

Kaloli Mubiru and 21 Others v Kayira and 5 Others (Civil Appeal 3 of 1979)

Court of Appeal · [1979] UGCA 4 · 1979 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from an order of the High Court dismissing an application to set aside an ex-parte judgment
Decision
Appeal allowed; ex-parte judgment quashed as a nullity; possession of land and proceeds of sale to be restored to appellants, without prejudice to the respondents' original suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a claim for eviction and mesne profits could not proceed under Order 9 rule 6 but only under Order 9 rule 8, which requires the ordinary trial procedure with a hearing notice served on the defendant. As no trial took place, the Deputy Chief Registrar had no jurisdiction to enter the ex-parte judgment, rendering it a nullity. A judgment of a court without jurisdiction is a nullity which the affected party is entitled to have set aside ex debito justitiae. The fact that the judgment had been satisfied and execution completed was no bar to quashing it; execution under a void judgment is void ab initio. The appeal was allowed.

Outcome

Appeal allowed; ex-parte judgment quashed as a nullity; possession of land and proceeds of sale to be restored to appellants, without prejudice to the respondents' 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 to enter appearance but did not do so. Ex-parte judgment was applied for and entered by the Deputy Chief Registrar on 23 June 1976 under Order 9 rule 6. A decree was extracted and an execution application made on 27 October 1976. The court issued an execution order on 16 November 1976 and the eviction order was executed against the appellants. To satisfy the plaintiffs' costs of Shs. 11,292, warrants of attachment and sale were issued, and 18 goats, 10 pigs, a scooter and a bicycle belonging to the appellants were attached and sold on 27 February 1978. On 21 June 1978 the appellants filed a notice of motion to set aside the ex-parte judgment, which was dismissed on 26 September 1978. They appealed, contending the Deputy Chief Registrar lacked jurisdiction to enter the judgment.

Issues

  1. Whether the Deputy Chief Registrar had jurisdiction to enter ex-parte judgment under Order 9 rule 6 in a suit for eviction and mesne profits.
  2. Whether an ex-parte judgment entered without jurisdiction should be set aside notwithstanding that it had already been satisfied through completed execution.

Orders

  • Appeal allowed.
  • Ruling of the learned trial judge set aside.
  • Judgment of the Deputy Chief Registrar quashed and any orders made pursuant to it set aside.
  • The respondents to restore possession of the land to the appellants.
  • The respondents to pay to the appellants the sums of money realised from the sale of their property.
  • The respondents to pay the costs of the appellants in this court and in the court below.

Rules and key headnotes

Civil Procedure — Ex-parte Judgment — Suits for Eviction and Mesne Profits under Order 9 rule 8
A claim for an order of eviction and mesne profits cannot be made under Order 9 rule 6 but only under Order 9 rule 8, which excludes such suits from the rule allowing the suit to proceed as if appearance had been entered, so that no interlocutory judgment may be entered and the suit must follow the ordinary trial procedure.
Civil Procedure — Jurisdiction — Judgment of a Court Without Jurisdiction is a Nullity
A judgment entered by a registrar without jurisdiction is a nullity, and a person affected by it is entitled to have it set aside ex debito justitiae; once a court concludes the registrar acted without jurisdiction, no further inquiry into the merits should be made.
Civil Procedure — Execution — Effect of Completed Execution under a Void Judgment
The fact that a judgment has been satisfied and execution completed is no good reason for declining to quash a judgment that is a nullity; any execution completed under such a judgment is void ab initio and any orders, writ of possession and execution made under it must be set aside.

Legislation cited (2)

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

Cases cited (3)

  • Craig v Kanseen [1943] 1 All E.R. 108
  • Mwatsahu v Maro [1967] E.A. 42
  • Fleet Mortgage v Lower Maisonette [1972] 2 All E.R. 737

Full judgment

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Kaloli Mubiru and 21 Others v Kayira and 5 Others (Civil Appeal 3 of 1979) [1979] UGCA 4 (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.