Mwesige v Kiiza (Civil Appeal 7 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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 High Court allowed the appeal, holding that the trial magistrate erred in proceeding ex parte and entering judgment on admission without satisfying himself that the appellant had been duly served with the hearing notice. Evidence of service must be by affidavit of service. The fact that the appellant deposited money in court did not prove he had been served or was aware of the hearing date. The proceedings violated the appellant's constitutional right to a fair hearing under Article 28(1). The judgment was set aside and a retrial ordered.

Outcome

Judgment of the trial court set aside and matter remitted for retrial

Facts

The respondent sued the appellant in the Chief Magistrate's Court claiming ownership of land she alleged she purchased from him for UGX 6,500,000 and seeking vacant possession. The appellant's defence was that he had entered a loan agreement for UGX 5,000,000 with interest of UGX 1,500,000 on behalf of another person and pledged the land as security, and that UGX 1,000,000 had been paid leaving a balance of UGX 5,500,000. On 29 September 2021 the trial court ordered the respondent's counsel to extract and serve a hearing notice on the appellant. When the matter came up on 18 November 2021, the appellant did not appear. Counsel for the respondent submitted orally that the appellant had been served on 15 October 2021 but had no affidavit of service. Counsel stated the appellant had deposited UGX 1,400,000 in court on 11 November 2021 showing he was aware of the hearing date. The trial magistrate proceeded ex parte and entered judgment on admission against the appellant awarding UGX 2,000,000 damages.

Issues

1. Whether the trial magistrate erred in proceeding ex parte without formal proof of service of the hearing notice on the appellant.
2. Whether the trial magistrate erred in entering judgment on admission where the appellant had not been duly served.
3. Whether the appellant's averments in his defence constituted an admission of the respondent's claim.

Orders

• Appeal allowed.
• The judgement and orders of the trial court are set aside.
• A retrial order is issued.
• Each party to bear its own costs in this court and the court below.
• The Deputy Registrar to send back the lower court file to the lower court for retrial.

Rules and key headnotes

Legislation cited (3)

• Civil Procedure Rules Order 9 Rule 20
• Civil Procedure Rules Order 13 Rule 6
• Constitution of the Republic of Uganda 1995 Article 28(1)

Cases cited (4)

• Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
• Peters v. Sunday Post [1958] E.A 424
• Ronald Mubunga & Another v Asaba Paul (High Court Miscellaneous Application No. 14 of 2023)
• National Enterprises Corporation v Mukisa Foods (Court of Appeal Civil Appeal No. 42 of 1997)

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