Wakilii

Mubiru v Kayiwa (Civil Suit 362 of 1978)

Court of Appeal · [1979] UGCA 3 · 1979 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal against the High Court's dismissal of an application to set aside an ex-parte judgment
Decision
Ex-parte judgment quashed as a nullity; possession of land and proceeds of sale of property ordered restored to the appellants, without prejudice to the respondents' original suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a claim for eviction and mesne profits falls under Order 9 rule 8, not rule 6, so the Deputy Chief Registrar had no jurisdiction to enter ex-parte judgment. Suits under Order 9 rule 8 must follow the ordinary rules of procedure with a fixed hearing date and served hearing notice; no interlocutory judgment can be entered. A judgment entered without jurisdiction is a nullity which the affected person is entitled to have set aside ex debito justitiae. The fact that the judgment had been satisfied and execution completed was no bar to quashing it, since execution under a void judgment is void ab initio. The appeal was allowed.

Outcome

Ex-parte judgment quashed as a nullity; possession of land and proceeds of sale of property ordered restored to the appellants, without prejudice to the respondents' original suit

Facts

On 14 April 1976 the respondents filed a civil suit against the appellants for an order of eviction and mesne profits. The appellants were duly served to enter appearance but did not do so. Ex-parte judgment was applied for and entered by the Deputy Chief Registrar on 23 June 1976 under Order 9 rule 6. A decree was extracted and execution followed: an eviction order was issued and executed, and movable property (goats, pigs, a scooter and a bicycle) was attached and sold by public auction on 27 February 1978 to satisfy costs of Shs. 11,292/=. On 21 June 1978 the appellants applied to set aside the ex-parte judgment. The application was dismissed on 26 September 1978 on the ground that, since the plaintiffs did not pursue the mesne profits claim, assessment of damages could be dispensed with. The appellants appealed, contending the Deputy Chief Registrar had no jurisdiction to enter the judgment.

Issues

  1. Whether the Deputy Chief Registrar had jurisdiction to enter ex-parte judgment under Order 9 rule 6 in a suit for eviction and mesne profits.
  2. Whether a judgment entered without jurisdiction should be set aside notwithstanding that it has already been satisfied through completed execution.

Orders

  • Appeal allowed.
  • Ruling of the learned trial judge set aside.
  • Judgment of the Deputy Chief Registrar quashed and any orders made pursuant to it set aside.
  • The respondents to restore possession of the land to the appellants.
  • The respondents to pay to the appellants the sums of money realised from the sale of their property.
  • The respondents to pay the costs of the appellants in this court and in the court below.

Rules and key headnotes

Civil Procedure — Ex-parte Judgment — Suits for Eviction and Mesne Profits under Order 9 rule 8
A claim for an order of eviction and mesne profits cannot be entered by way of ex-parte judgment under Order 9 rule 6; such suits fall under Order 9 rule 8 and must follow the ordinary rules of procedure, requiring the case to be fixed and a hearing notice served, with no interlocutory judgment being permissible.
Civil Procedure — Jurisdiction — Judgment Entered Without Jurisdiction as a Nullity
A judgment of a court entered without jurisdiction is a nullity, and a person affected by such a judgment is entitled to have it set aside ex debito justitiae.
Civil Procedure — Setting Aside — Effect of Completed Execution on Void Judgment
That a judgment has been satisfied and execution completed is no bar to quashing a judgment which is a nullity; execution completed under a void judgment is void ab initio and the orders, writ of possession and execution made under it must be set aside.

Legislation cited (2)

  • Civil Procedure Rules O.9 r.6
  • Civil Procedure Rules O.9 r.8

Cases cited (3)

  • Craig v Kanseen [1943] 1 All ER 108
  • Mwatsahu v Maro [1967] EA 42
  • Fleet Mortgage v Lower Maisonettes [1972] 2 All ER 737

Full judgment

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

Mubiru v Kayiwa (Civil Suit 362 of 1978) [1979] UGCA 3 (1 November 1979)
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.