Wakilii

Magunda v Ssemanda (Civil Appeal No. 76 of 2012)

High Court · [2014] UGHCCD 192 · 2014 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Magistrate's Court ruling dismissing application to set aside ex parte judgment
Decision
Appeal dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that loss of a counsel's diary does not constitute sufficient cause under Order 9 Rule 27 CPR for setting aside an ex parte decree where both the appellant and counsel failed to attend court or file an amended pleading as directed. The court further held that the appellant could not challenge on appeal the order setting aside the consent without having first obtained leave under Order 44 Rule 2 CPR, as required for appeals from orders under section 98 of the Civil Procedure Act.

Outcome

Appeal dismissed with costs to the respondent

Facts

The respondent sued the appellant for trespass in Civil Suit No. 179 of 2008 and obtained an ex parte judgment. The appellant filed Misc. Application No. 94 of 2010 to set aside the ex parte judgment. A consent order dated 1st March 2011 was signed by counsel for both parties setting aside the ex parte judgment. However, on 7th June 2011, the trial magistrate cancelled the consent order after a complaint by the respondent that he had not consented to it, and restored the ex parte judgment. The appellant filed Misc. Application No. 114 of 2011 to set aside the order of 7th June 2011 and the ex parte decree, which was dismissed with costs. The appellant appealed to the High Court on five grounds, primarily challenging the refusal to set aside the ex parte decree and the setting aside of the consent order.

Issues

  1. Whether the trial magistrate erred in holding that there were no sufficient grounds for setting aside the ex parte decree in the main suit.
  2. Whether the trial magistrate erred in setting aside the consent order dated 1st March 2011.
  3. Whether the trial magistrate erred in holding that the appellant was not vigilant in prosecuting his case for failure to file an amended written statement of defence.
  4. Whether the appeal was competent in the absence of an extracted formal order.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Setting Aside Ex Parte Decrees — Sufficient Cause — Loss of Counsel's Diary
Loss of a counsel's diary does not constitute sufficient cause under Order 9 Rule 27 of the Civil Procedure Rules for setting aside an ex parte decree where both the defendant and counsel were present when the matter was adjourned to enable filing of an amended pleading, and both failed to attend court on the hearing date or verify the date from court records.
Appeals — Leave to Appeal — Orders Under Section 98 CPA
Where a court order setting aside a consent is made under section 98 of the Civil Procedure Act, leave of court is mandatory under Order 44 Rule 2 of the Civil Procedure Rules before an appeal can be brought against such order, and failure to obtain such leave renders any subsequent appeal against that order incompetent.
Appeals — Duty of First Appellate Court — Re-evaluation of Evidence
The duty of a first appellate court is to evaluate the evidence on the lower court record afresh to enable it to come to an independent decision on whether the lower court's decision can be sustained.

Legislation cited (5)

Cases cited (3)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Fredrick Zaabwe v Orient Bank Ltd (Court of Appeal No. 4 of 2006)
  • Mugabo Peter Bagonza and Others v James Kimala and Others (Miscellaneous Application No. 631 of 2011)

Full judgment

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

Magunda v Ssemanda (Civil Appeal No. 76 of 2012) [2014] UGHCCD 192 (18 September 2014)
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.