Kibalama Mugwanya v Butebi Investment Enterprise Ltd (Civil Appeal No 190 of 2013)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed the appeal, holding that no appeal lay to the court. A default judgment in a summary suit is not appealable as it is not a decision on the merits; only the refusal to set it aside is appealable, and that with leave. The appellant had instead pursued an unusual revision application under s.83 of the Civil Procedure Act, the refusal of which conferred no automatic right of appeal. Further, the parties had executed a consent settlement, so the matter was not a true second appeal. The appellant also failed to take essential mandatory steps — serving the notice of appeal and lodging the record within time — rendering the appeal incompetent.

Outcome

Appeal dismissed with costs; the court found no appeal lay to it

Facts

The respondent sued the appellant in the Chief Magistrates Court of Mengo under summary procedure to recover UGX 40,000,000. The appellant failed to apply for leave to appear and defend, and a default judgment was entered against him. His application to set aside the default judgment was dismissed. Rather than appeal that dismissal, the appellant filed an application in the High Court seeking revision under s.83 of the Civil Procedure Act. The High Court upheld the magistrate's judgment, finding no material irregularity or injustice. The decree was dated 14 December 2010, and on 21 January 2011 the parties executed a consent settlement compromising their rights. The appellant then filed this purported second appeal. He failed to serve the notice of appeal on the respondent, failed to lodge the record of appeal within the prescribed time, and did not file conferencing notes or submissions.

Issues

1. Whether the appeal was incompetent and should be struck out for failure to serve the respondent with the notice of appeal and the letter requesting proceedings, and for being filed out of time.
2. Whether an appeal lies to the Court of Appeal in the circumstances of the case.
3. What remedies are available to the parties.

Orders

• Appeal dismissed.
• Costs of the appeal awarded to the respondent.

Rules and key headnotes

Legislation cited (13)

• Civil Procedure Act, Cap 71 s.72
• Civil Procedure Act, Cap 71 s.74
• Civil Procedure Act, Cap 71 s.83
• Civil Procedure Act, Cap 71 s.2
• Judicature Act s.17
• Civil Procedure Rules Order 36 Rule 11
• Civil Procedure Rules Order 44 Rule 1(1)
• Civil Procedure Rules Order 44 Rule 1(2)
• Civil Procedure Rules Order 52 Rules 1 and 2
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 32(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 79
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 82
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 84(a)

Cases cited (3)

• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Nyendwoha Bigirwa Norah v Returning Officer, Buliisa District and the Electoral Commission (Civil Application No. 23 of 2011)
• Kasirye Byaruhanga & Co Advocates v Uganda Development Bank (Civil Appeal No. 2 of 1997)

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