Wakilii

Kaloli Mubiru and Others v Edmond Kaywa and Others (Civil Appeal 3 of 1979)

Court of Appeal · [1979] UGCA 5 · 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
Ex-parte judgment quashed as a nullity; possession of land and proceeds of sale ordered restored to the appellants, without prejudice to the respondents pursuing 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 falls under Order 9 r.8, not Order 9 r.6, and could not proceed by way of interlocutory ex-parte judgment. The Deputy Chief Registrar therefore acted without jurisdiction, rendering the ex-parte judgment a nullity. A judgment that is a nullity for want of jurisdiction must be set aside ex debito justitiae, and the fact that it has already been satisfied through completed execution is no bar to quashing it; any execution carried out under such a judgment is void ab initio. The appeal was allowed, the judgment quashed, and the respondents ordered to restore possession and refund the proceeds of the sale.

Outcome

Ex-parte judgment quashed as a nullity; possession of land and proceeds of sale ordered restored to the appellants, without prejudice to the respondents pursuing 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. Ex-parte judgment was applied for and entered by the Deputy Chief Registrar on 23 June 1976 under Order 9 r.6. A decree dated 6 August 1976 was extracted and execution applied for on 27 October 1976. The court issued an execution order on 16 November 1976 and the eviction was carried out. An application for execution by attachment of movable property to satisfy costs of Shs. 11,292/= was made on 19 July 1977; warrants of attachment and sale issued on 28 November 1977, 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 applied to set aside the ex-parte judgment. That application was dismissed on 26 September 1978, and the appellants appealed.

Issues

  1. Whether the Deputy Chief Registrar had jurisdiction to enter ex-parte judgment under Order 9 r.6 in a suit for eviction and mesne profits.
  2. Whether a judgment that is a nullity for want of jurisdiction must be set aside notwithstanding that execution has already been completed.

Orders

  • Appeal allowed.
  • Ruling of the trial judge set aside.
  • Judgment of the Deputy Chief Registrar quashed.
  • Any orders made pursuant to that judgment set aside.
  • Respondents to restore possession of the land to the appellants.
  • Respondents to pay to the appellants the sums of money realised from the sale of their property.
  • 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 — Order 9 r.6 and r.8 — Suits for Eviction and Mesne Profits
A claim for an order of eviction and mesne profits cannot be entered as an interlocutory ex-parte judgment under Order 9 r.6; such a suit falls under Order 9 r.8, which requires the trial to follow the ordinary rules of procedure with a hearing notice served on the defendant.
Civil Procedure — Jurisdiction — Judgment Without Jurisdiction is a Nullity
A judgment of a court entered without jurisdiction is a nullity, and a person affected by it is entitled to have it set aside ex debito justitiae.
Civil Procedure — Setting Aside Judgment — Effect of Completed Execution
The fact that a judgment has been satisfied and execution completed is no bar to quashing it where it is a nullity; any execution carried out under a void judgment is void ab initio and must be set aside, with possession and proceeds of sale restored.

Legislation cited (2)

Cases cited (3)

  • Craig v Kanseen [1943] 1 All ER 108
  • Mwatsahu v Maro [1967] EA 42
  • Fleet Mortgage and Investment Co Ltd v Lower Maisonette [1972] 2 All ER 737

Full judgment

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Kaloli Mubiru and Others v Edmond Kaywa and Others (Civil Appeal 3 of 1979) [1979] UGCA 5 (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.