Wakilii

Kiganila v Kagenda (Civil Appeal No. 046 of 2011)

High Court · [2013] UGHCCD 142 · 2013 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrates Court ex parte judgment in civil suit concerning land ownership
Decision
Appeal dismissed as incompetent; ex parte judgment of the Chief Magistrates Court stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a defendant who fails to appear at trial despite being present when the matter was fixed for hearing has no right of appeal against the resulting ex parte decree under section 67(1) of the Civil Procedure Act. The appropriate remedy is an application to set aside the ex parte decree under Order 9 rule 27 of the Civil Procedure Rules, with a right of appeal only if that application is rejected under Order 44 rule 1(c) CPR. Section 67(1) applies only to a party which was heard in ex parte proceedings but is dissatisfied with the judgment. An attempt by a defaulting defendant to be heard on appeal constitutes abuse of court process. Appeal dismissed as incompetent.

Outcome

Appeal dismissed as incompetent; ex parte judgment of the Chief Magistrates Court stands

Facts

The appellant was the registered proprietor of mailo land in Bulemezi Block 19 plot 47. In April 2001 he allegedly sold the land to the respondent for Ushs. 720,000, vacated it, and provided the certificate of title and signed transfer forms. The respondent registered the land in his name and sold 5 acres to a third party in August 2008. In July 2010 the appellant re-occupied the residual portion, claiming he had never sold the land but only provided the title as collateral for a loan. The respondent sued in the Chief Magistrates Court of Luwero. The matter was fixed for hearing on 1st October 2010 in the presence of both parties. The appellant failed to appear and ex parte judgment was entered for the respondent. This judgment was set aside at the appellant's instance. The matter was re-fixed for 16th September 2011 in the presence of both parties. Again the appellant failed to appear. The respondent successfully applied for reinstatement of the earlier ex parte judgment. The appellant appealed to the High Court.

Issues

  1. Whether a defendant against whom an ex parte judgment has been passed has a right of appeal against the ex parte decree.
  2. Whether section 67(1) of the Civil Procedure Act confers a right of appeal to a defaulting defendant who failed to appear at trial.
  3. Whether the appropriate remedy for a defendant against whom an ex parte decree has been passed is an application to set aside under Order 9 rule 27 CPR rather than an appeal.

Orders

  • Appeal dismissed as incompetent and improperly before the court.
  • Costs in the High Court and the lower court awarded to the respondent.

Rules and key headnotes

Civil Procedure — Ex Parte Proceedings — Right of Appeal — Defaulting Defendant
A defendant who fails to appear at trial despite being present when the matter was fixed for hearing has no right of appeal against the resulting ex parte decree under section 67(1) of the Civil Procedure Act. The section applies only to a party which was heard in ex parte proceedings but is dissatisfied with the judgment, not to a defaulting defendant.
Civil Procedure — Ex Parte Decrees — Remedy — Application to Set Aside
The appropriate remedy for a defendant against whom an ex parte decree has been passed is an application to set aside the decree under Order 9 rule 27 of the Civil Procedure Rules, not an appeal. A right of appeal arises only if the application to set aside is rejected, under Order 44 rule 1(c) CPR.
Civil Procedure — Appeals — Competence — Abuse of Process
An appeal by a defendant who simply stayed away from court proceedings despite being present when the matter was fixed for hearing, rather than first applying to set aside the ex parte decree, constitutes an abuse of court process and renders the appeal incompetent.
Civil Procedure — Magistrates Courts — Appeals to High Court — Application of Civil Procedure Act and Rules
Section 229 of the Magistrates Courts Act provides that other written laws in force when the Act came into force, including the Civil Procedure Act and Civil Procedure Rules, apply to appeals from magistrates' courts to the High Court in so far as the context allows.
Civil Procedure — Standard of Proof — Balance of Probabilities — Ex Parte Proceedings
The standard of proof in civil matters by balance of probabilities entails three aspects: determination whether the plaintiff's evidence is more probable than not to be true; evaluation whether the defence evidence rebuts the plaintiff's evidence; and a finding as to which party has adduced the more cogent evidence. In the absence of due process where a defendant fails to appear, an appellate court cannot enter judgment for the defendant on the merits in the absence of any evidence in support of the defence case.

Legislation cited (7)

Cases cited (1)

  • Sebuliba v Cooperative Bank Ltd (HCB 130 of 1982)

Full judgment

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Kiganila v Kagenda (Civil Appeal No. 046 of 2011) [2013] UGHCCD 142 (24 October 2013)
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.