Mrs Lovewood Shifa v Luyima and Another (Civil Appeal No. 229 of 2021)

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 held that a person in possession of immovable property affected by execution proceedings has a right of audience and need not be a party to the proceedings to be heard. Since the deponent claimed to be a beneficiary and person in possession who had been evicted under a warrant, she was entitled to swear an affidavit in reply, and requiring her to hold a power of attorney was erroneous. Her evidence was material and relevant. Consequently, the orders made on the footing that the application was unopposed could not stand as they violated the right to a fair hearing under article 28(1) of the Constitution. The appeal was allowed and the matter remitted for hearing on the merits.

Outcome

Appeal allowed; ruling and orders set aside; application remitted to the High Court for hearing before another judge

Facts

The suit property, comprised in Mawokota Block 14 Plot 27, was purchased for Priscilla Kagwera by her daughter, Mrs Shifa Lovewood, under an agreement dated 16 June 2015. Kagwera took possession, renovated the property and began residing there in July 2015. On 30 September 2015 she was evicted under a warrant to give vacant possession issued in execution proceedings. The daughter successfully challenged the eviction and attachment in Nakawa High Court Miscellaneous Application No. 1054 of 2015, in which the sale was cancelled. The respondents then filed Miscellaneous Application No. 958 of 2016 seeking review of that decision. Kagwera swore an affidavit in reply opposing the application, deposing to the facts within her knowledge. The respondents objected that she was not a party and lacked written authority. The trial judge struck out her affidavit as that of an imposter and allowed the review application as unopposed, prompting the appeal.

Issues

1. Whether the deponent Priscilla Kagwera needed written authorisation from the appellant to depose to the affidavit in reply.
2. Whether the respondents' application for review was uncontested.
3. Whether the trial judge erred in failing to consider the appellant's submissions opposing the application for review.
4. Whether the trial judge erred in making orders determining Miscellaneous Application No. 1054 of 2015 without hearing the parties.

Orders

• The appeal is allowed with costs.
• The ruling and orders of the High Court in Miscellaneous Application No. 958 of 2016 are set aside.
• Miscellaneous Application No. 958 of 2016 is remitted back to the High Court for hearing before another Judge.
• The respondent shall pay the costs of the appeal in this Court.

Rules and key headnotes

Legislation cited (16)

• Civil Procedure Rules Order 3 rule 1
• Civil Procedure Rules Order 3 rule 2
• Civil Procedure Rules Order 19 rule 1(1)
• Civil Procedure Rules Order 19 rule 2(1)
• Civil Procedure Rules Order 19 rule 3(1)
• Civil Procedure Rules Order 22 rule 84
• Civil Procedure Rules Order 22 rule 85
• Civil Procedure Rules Order 22 rule 86
• Civil Procedure Rules Order 46 rule 1
• Civil Procedure Rules Order 46 rule 2
• Civil Procedure Rules Order 46 rule 8
• Civil Procedure Act s.98
• Judicature Act s.33
• Evidence Act s.117
• Judicature (Court of Appeal Rules) Directions rule 78(1)
• Constitution of Uganda art.28(1)

Cases cited (3)

• Bankone Ltd v Simbamanyo Estates Ltd (Miscellaneous Application No. 645 of 2020)
• Kamsiime K. Andrew v Himalaya Traders and Others (Miscellaneous Application No. 60 of 2021)
• Mugoya Construction and Engineering Ltd v Central Electricals International Ltd (Miscellaneous Application No. 699 of 2011)

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.

• v Hydro Uganda Limited v Ruwangananyama Engineering Services Limited (Miscellaneous Application No. 93 of 2022)

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