Monica Babirye v Mohammed Mubiru (Miscellaneous Application No. 184 of 2019)

Observed later treatment

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 an application to set aside a second-appeal judgment delivered in the applicant's absence. The court held that sufficient cause for absence must relate to matters beyond the party's control, such as counsel's mistake, illness, or other excusable impediment. The applicant failed to establish such cause: the record showed she was duly served through her former advocates, who acknowledged court process and filed conferencing notes, and she produced no affidavit from counsel and no medical or travel evidence. Service on a duly appointed advocate is sufficient absent a communicated change of representation. The respondent's failure to file an affidavit in reply did not bar reliance on written submissions. The application also impermissibly raised points of fact on a second appeal.

Outcome

Application to set aside the judgment and reinstate the appeal dismissed with costs

Facts

The applicant sought to set aside the judgment of the Court of Appeal in Civil Appeal No. 130 of 2011, delivered on 1 August 2017, and to have that appeal reinstated and heard on the merits. The underlying dispute concerned land and had passed through the Nakawa Magistrates Court and the High Court before the second appeal. The applicant contended that she was prevented by sufficient cause from attending the appeal hearing, which proceeded in her absence and resulted in judgment against her, denying her a fair hearing, and that the judgment and extracted decree contained errors. The respondent opposed the application, asserting that the applicant had been duly served through her former advocates, Musoke Suleman & Co. Advocates, who acknowledged receipt of court process including the Notice of Appeal and hearing notices and filed conferencing notes on the record. The applicant filed no affidavit from her former counsel and produced no medical or travel evidence to explain her absence.

Issues

1. Whether the applicant demonstrated sufficient cause to warrant setting aside a judgment delivered in her absence and reinstating the appeal.
2. Whether the applicant was duly served with the appeal process through her former advocates.
3. Whether the respondent's failure to file an affidavit in reply entitled the applicant to have her evidence treated as unchallenged.

Orders

• The application is dismissed.
• Costs of the application awarded to the respondent.

Rules and key headnotes

Legislation cited (10)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
• Court of Appeal Rules r.36
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.26(1)
• Constitution of Uganda 1995 art.44(c)
• Constitution of Uganda 1995 art.126(2)
• Registration of Titles Act s.59
• Oaths Act

Cases cited (13)

• H.G. Gandesha & Anor v G.J. Lutaaya (Supreme Court Civil Appeal No. 14 of 1989)
• Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Appeal No. 8 of 1998)
• Orient Bank v Fredrick Zaabwe & Another (Civil Appeal No. 17 of 2007)
• Lakkhanishi Brothers Ltd v R. Raja & Sons [1966] EA 313
• Fangmin v Dr. Kaijuka Mutabazi Emmanuel (Supreme Court Civil Application No. 006 of 2009)
• Elizabeth Nalumansi Wamala v Jolly Kasande & Others (Civil Application No. 29 of 2017) [2019] UGSC 2
• Robinnah Natanda & 11 Others v P.R. Patel & Another (Civil Application No. 258 of 2020) [2021] UGCA 127
• National Social Security Fund & Another v Alcon International Ltd (Civil Appeal No. 15 of 2009) [2013] UGSC 4
• Obote William v Uganda (Criminal Application No. 1 of 2017) [2018] UGSC 84
• NPART v General Parts (U) Ltd [2000] UGSC 21
• Geoffrey Gatete & Angela Nakigonya v William Kyobe (Supra)
• Rosette Kizito v Administrator General & Others (Supra)
• Nicholas Roussos v Gulamhussein Habib Virani, (Supra)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Nahabwe v Uganda (Miscellaneous Application 16 of 2020)

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