Wakilii

Moses Lwanga and Others v Lauben Kalibbala Serwanga and Others (Civil Appeal No. 203 of 2013)

Court of Appeal · [2015] UGCA 2036 · 2015 Appeal Struck Out — Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order dismissing the suit for non-appearance of the plaintiffs
Decision
Appeal struck out as incompetent with costs to the respondents

Observed later treatment

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Holding

The Court of Appeal upheld a preliminary objection that the appeal was incompetent. Where a suit is dismissed under O.9 r.22 of the Civil Procedure Rules for the plaintiff's non-appearance, no appeal lies as of right. The proper remedy is an application under O.9 r.23 to set aside the dismissal, and an appeal from such a dismissal order requires leave of the court under O.44 r.2 and r.3. The appellants neither applied to set aside the dismissal nor obtained leave to appeal, so the appeal was struck out with costs. The court declined to consider the substantive grounds of appeal.

Outcome

Appeal struck out as incompetent with costs to the respondents

Facts

The appellants sued the respondents in the High Court at Nakawa (Civil Suit No. 36 of 2011) over ownership and use of land comprised in Block 503 Plot 83 at Luwule, Namasera, Wakiso District, seeking a declaration that the land formed part of the estate of the late Kulanima Musoke Serwanga, cancellation of the 2nd respondent's registration, and reinstatement into the names of the appellants and the 1st respondent. The hearing date of 06.05.2013 had been fixed on 26.02.2013 when all plaintiffs and their lawyer were present. On the hearing date, only the 1st plaintiff appeared and withdrew from the case; the other plaintiffs were absent. Counsel for the defendants prayed for dismissal, and the trial judge dismissed the suit under O.9 r.22 of the Civil Procedure Rules for non-appearance. The appellants did not apply to set aside the dismissal but instead appealed directly to the Court of Appeal.

Issues

  1. Whether a plaintiff whose suit was dismissed under O.9 r.22 of the Civil Procedure Rules for non-appearance may appeal directly to the Court of Appeal without first applying to set aside the dismissal or obtaining leave to appeal.
  2. Whether the appeal was competent in law.

Orders

  • Preliminary objection upheld.
  • Civil Appeal No. 203 of 2013 is incompetent in law and struck out.
  • Costs of the appeal awarded to the respondents.
  • Appeal against the 3rd respondent withdrawn, with no order as to costs.

Rules and key headnotes

Civil Procedure — Dismissal for Non-Appearance — Remedy under O.9 r.23
Where a suit is dismissed under Order 9 rule 22 of the Civil Procedure Rules because the plaintiff fails to appear despite being aware of the hearing date, the plaintiff's remedy is to apply under Order 9 rule 23 to the court that dismissed the suit to set aside the dismissal on showing sufficient cause for non-appearance.
Civil Procedure — Right of Appeal — No Appeal as of Right from Dismissal under O.9 r.22
An order dismissing a suit under Order 9 rule 22 for non-appearance is not appealable as of right; a right of appeal is granted only by statute, and only an order under Order 9 rule 23 refusing to set aside a dismissal is appealable as of right.
Civil Procedure — Leave to Appeal — O.44 r.2 and r.3
An appeal from an order not appealable as of right lies only with leave of the court making the order or of the court to which the appeal would lie; the application for leave must first be made to the court making the order under Order 44 rule 3.
Civil Procedure — Set-Aside Application — Court Not the Individual Judge
An application under Order 9 rule 23 to set aside a dismissal must be made to the court, not to the individual judge who issued the order; any other judge of the same court may entertain and determine the application, so the elevation of the trial judge to a higher court is no excuse for failing to apply.

Legislation cited (7)

Cases cited (1)

  • Augustine Chebet .V. Erieza Torokoch CA 6196 (29.7.1997) at Mbale, [1997] KLR 558

Full judgment

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Moses Lwanga and Others v Lauben Kalibbala Serwanga and Others (Civil Appeal No. 203 of 2013) [2015] UGCA 2036 (26 October 2015)
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.