Wakilii

Najjuma and 5 Others v Joloba and Another (Civil Miscellaneous Application No. 770 of 2019)

High Court · [2021] UGHCLD 96 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of time to file notice of appeal and leave to appeal against ex-parte judgment in Civil Suit No. 22 of 2015
Decision
Application granted with leave to appeal; appeal to be filed within fourteen days of receiving trial record

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit sworn by one applicant on behalf of others without a separate written authority is an irregularity, not a nullity, and can be remedied under Article 126(2)(e) of the Constitution which requires substantive justice without undue regard to technicalities. The court granted the application for extension of time and leave to appeal, finding that applicants filed promptly after becoming aware of the ex-parte decree, that the subject matter was land, and that a litigant is not foreclosed from choosing between available remedies including appeal from an ex-parte decree.

Outcome

Application granted with leave to appeal; appeal to be filed within fourteen days of receiving trial record

Facts

The applicants were defendants in Civil Suit No. 22 of 2015 where an ex-parte judgment was delivered on 16 April 2019. The applicants were not served with notice of the judgment delivery date and only learned of the judgment when the respondents' lawyer served them with a decree and notice to show cause why execution should not issue on 8 May 2019. The applicants filed this application on 21 May 2019, thirteen days after becoming aware of the ex-parte decree, seeking extension of time to file a notice of appeal and leave to appeal. The respondents objected on the ground that the affidavit in support was sworn by one applicant on behalf of all without proper written authority, and argued that the correct procedure was to apply to set aside the ex-parte decree rather than appeal.

Issues

  1. Whether an Affidavit in support of an Application sworn by one Applicant on behalf of all the other Applicants is fatally defective and renders the Application a nullity.
  2. Whether the Applicants erroneously filed the Application for Extension of time within which to file a Notice of Appeal before this court.

Orders

  • Application granted.
  • The Applicants shall file and serve the memorandum of appeal within fourteen days from the date the record of proceedings is received from the lower court.
  • The Applicants shall fix the appeal for hearing on a date falling within three months from the date of filing the memorandum of appeal, failure of which the appeal may be dismissed.
  • Costs of this application will abide the results of the appeal.

Rules and key headnotes

Civil Procedure — Affidavits — Affidavit Sworn on Behalf of Multiple Parties — Requirements for Written Authority
An affidavit sworn by one party on behalf of other parties without a separate written authority filed alongside the affidavit is procedurally defective under Order 1 Rule 12 of the Civil Procedure Rules, but this defect constitutes an irregularity that can be remedied under Article 126(2)(e) of the Constitution rather than a nullity that invalidates the entire application.
Constitutional Law — Administration of Justice — Substantive Justice Over Technicalities — Article 126(2)(e)
Article 126(2)(e) of the Constitution mandates that substantive justice shall be administered without undue regard to technicalities, requiring courts to ensure that litigants are not denied justice because of failure to strictly adhere to procedural technicalities, particularly where the substance of the application is not affected and the court's integrity is not endangered.
Civil Procedure — Appeals — Extension of Time — Grounds for Exercise of Discretion
In determining whether to grant extension of time to file an appeal, the court considers whether sufficient reason exists for the failure to act within the prescribed time, whether the applicant was guilty of dilatory conduct, whether errors were those of counsel rather than the client, and whether substantive justice requires investigation of the dispute on its merits rather than barring the litigant on procedural grounds.
Civil Procedure — Appeals — Leave to Appeal — Ex-Parte Decrees — Election of Remedies
A litigant aggrieved by an ex-parte decree is not foreclosed from appealing the decree under section 67(1) of the Civil Procedure Act merely because an alternative remedy exists to apply to the trial court to set aside the decree under Order 9 Rule 27; a litigant has liberty to choose between available remedies unless estopped by conduct, former adjudication, or law, and election of remedies arises only where remedies are coexistent but repugnant and inconsistent.

Legislation cited (9)

Cases cited (7)

  • Kaingana v Dabo Boubou (1986) HCB 59
  • Grace Namulondo and 3 Others v Jone Johns Serwanga Salongo and Others (Miscellaneous Cause No. 001 of 2019)
  • Tiberi and Another v Two Others (Civil Appeal No. 51 of 2001)
  • Phillip Keipto Chemwolo and Another v Augustine Kubende [1986] KLR 495
  • Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
  • Sango-Bay Estates Ltd and Others v Dre Bank [1971] EA 17
  • Okello v Mudukanya [1993] 1 KALR 110

Full judgment

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

Najjuma_and_5_Others_v_Joloba_and_Another_(Civil_Miscellaneous_Application_No._770_of_2019)_[2021]_UGHCLD_96_(4_August_2021)
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.