Wakilii

Mabirizi Male v Attorney General (Miscellaneous Application No. 89 of 2022)

High Court · [2022] UGHCCD 69 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside orders committing applicant to prison for contempt, arising from Miscellaneous Application No. 843 of 2021 and Miscellaneous Cause No. 287 of 2021
Decision
Application struck out on preliminary objections; applicant's remedies lie with the Court of Appeal through the pending appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court has no jurisdiction to entertain an application to set aside its own orders where such orders were made inter partes following exercise of judicial discretion, as the proper recourse is by appeal to a higher court. Order 9 Rule 12 of the Civil Procedure Rules applies only to ex parte judgments, not to inter partes proceedings where a party filed a response and the matter was heard. Pursuing concurrent remedies of setting aside proceedings in the High Court while also appealing to the Court of Appeal constitutes forum shopping and abuse of court process, and is barred by the principle against approbation and reprobation.

Outcome

Application struck out on preliminary objections; applicant's remedies lie with the Court of Appeal through the pending appeal

Facts

The applicant sought to set aside orders made by Justice Ssekaana Musa on 15 February 2022 committing him to prison for 18 months for contempt of court. The impugned orders arose from Miscellaneous Application No. 843 of 2021. The applicant had been served with a notice to show cause why he should not be committed to prison. He responded by letter and affidavit dated 10 February 2022 opposing the application. At the hearing on 15 February 2022, the applicant was represented by counsel who requested an adjournment and time to file further evidence. The court refused the adjournment and proceeded to hear arguments from both sides before making the contested orders. On 2 March 2022, the applicant filed a notice of appeal to the Court of Appeal against the same orders. Subsequently, the applicant filed the present application seeking to set aside those orders on grounds including alleged breach of the right to a fair hearing.

Issues

  1. Whether the court has jurisdiction to entertain an application to set aside its own orders where the party has filed a notice of appeal to a higher court.
  2. Whether an application to set aside orders under Order 9 Rule 12 of the Civil Procedure Rules can be brought where the proceedings were inter partes and not ex parte.
  3. Whether bringing concurrent applications to set aside proceedings in the High Court while also appealing the same proceedings to the Court of Appeal constitutes abuse of court process.
  4. Whether a respondent who has not filed an affidavit in reply to an application has locus to address the court on matters of law.

Orders

  • Application struck out for lack of jurisdiction.
  • Application struck out for abuse of court process.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Ex Parte Judgments — Setting Aside under Order 9 Rule 12 CPR — Application Limited to True Ex Parte Judgments
Order 9 Rule 12 of the Civil Procedure Rules, which empowers the court to set aside or vary ex parte judgments, applies only where a party did not file a defence or response and judgment was entered in their absence. The rule does not apply to inter partes proceedings where a party filed a response, the matter was set down for hearing, and both parties made submissions before the court.
Civil Procedure — Jurisdiction — Setting Aside Own Orders — Limits of Trial Court Jurisdiction
A trial court has no jurisdiction to set aside its own orders that were made inter partes following exercise of judicial discretion. Where a party challenges the exercise of discretion by a trial court, the proper remedy is by appeal to a higher court, not by application to the same court to set aside its own decision.
Civil Procedure — Abuse of Process — Forum Shopping — Concurrent Remedies
Where a party has filed a notice of appeal to a higher court, it constitutes abuse of court process and forum shopping for that party to simultaneously bring an application in the trial court seeking to set aside the same orders that are the subject of the appeal. Pursuing two concurrent remedies in different courts against the same decision is use of court process for an improper purpose.
Civil Procedure — Estoppel — Approbation and Reprobation — Election Between Remedies
The principle against approbation and reprobation bars a party from taking two inconsistent courses of conduct. Where a party elects to appeal to a higher court, they cannot simultaneously seek to have the trial court set aside the same orders. The principle applies even where the party claims a fundamental right is at stake, as fundamental rights are enforceable within the limits of law and procedure.
Civil Procedure — Right to be Heard — Party Without Affidavit in Reply — Locus on Points of Law
A party who has not filed an affidavit in reply to an application is not barred from addressing the court on matters of law. The bar that exists is only in regard to traversing matters of evidence adduced by affidavit to which the party has not responded. Facts in an unopposed affidavit are taken as admitted, but this does not deprive the non-responding party of the right to be heard on legal issues.

Legislation cited (15)

Cases cited (5)

  • Lt. Col. John Kaye v Attorney General (Constitutional Application No. 25 of 2012)
  • H.G. Gandesha and Another v G.J. Lutaya (SCCA No. 14 of 1989)
  • Uganda Land Commission v James Mark Kamoga and Another (SCCA No. 8 of 2004)
  • Banque De Moscou V Kindersley (1950) 2 All ER 549
  • Republic versus Institute of Certified Public Secretaries of Kenya, HCMA No. 322 of 2008

Full judgment

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

Mabirizi Male v Attorney General (Miscellaneous Application No. 89 of 2022) [2022] UGHCCD 69 (1 April 2022)
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.