Wakilii

Nicholas Roussos v Gulam Hussein Habib and Another (Civil Appeal 9 of 1993)

Supreme Court · [1993] UGSC 48 · 1993 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order overruling a preliminary objection to an application to set aside an ex parte judgment
Decision
Appeal allowed; preliminary objection upheld and the matter returned on the basis that the application was brought under the wrong rule

Observed later treatment

Treatment recorded in citing cases followed in 14 · applied in 5 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

Good law Followed in 14 cases and applied in 5 cases, with no adverse treatment recorded. Citations rising — 90 citing cases on record, 38 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal. It held that Order 9 rules 9 and 24 of the Civil Procedure Rules are specific provisions governing the setting aside of ex parte judgments, but they apply to different situations and on different principles: the discretion under rule 9 is unlimited, while under rule 24 it depends on showing sufficient cause. Because the ex parte judgment had been entered after a hearing under Order 18 rule 1 (not under rules 4-7), it could not be set aside under rule 9; the proper rule was rule 24. The trial judge erred in treating the rules as the same, and the preliminary objection should have been upheld.

Outcome

Appeal allowed; preliminary objection upheld and the matter returned on the basis that the application was brought under the wrong rule

Facts

The appellant's mother sued the respondents seeking cancellation of their names from the Leaseholder Register and substitution of her own name as proprietor of a house at Plot 30 Windsor Crescent, Kampala, alleging the title was obtained improperly. As the respondents were out of the country, the appellant obtained leave to serve them by newspaper advertisement. The respondents did not respond, the suit was heard ex parte, and judgment was entered against them on 18 August 1982. When the respondents returned to Uganda in July 1992 they learned of the judgment and applied under Order 9 rule 9 of the Civil Procedure Rules to set it aside, contending they were not served, had been expelled from Uganda in 1972 and lived in Britain until 1992, and had a good defence. The appellant raised a preliminary objection that the application should have been brought under Order 9 rule 24 because evidence had been heard. The High Court overruled the objection, holding the principles under both rules were the same.

Issues

  1. Whether there is specific legislation governing applications to set aside ex parte judgments.
  2. Whether the legal principles applicable to applications under Order 9 rule 9 and Order 9 rule 24 of the Civil Procedure Rules are the same.
  3. Whether an application to set aside an ex parte judgment entered after a hearing could properly be brought under Order 9 rule 9.

Orders

  • Appeal allowed.
  • Ruling and order for costs of the trial judge set aside.
  • Order substituted upholding the preliminary objection.
  • Costs to the appellant in this Court and in the lower court.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Distinction Between Order 9 Rule 9 and Rule 24
The legal principles applicable to setting aside an ex parte judgment under Order 9 rule 9 and Order 9 rule 24 of the Civil Procedure Rules are different: the discretion under rule 9 is unlimited and unrestricted, whereas under rule 24 it is confined to where the defendant shows that summons was not duly served or that he was prevented by sufficient cause from appearing.
Civil Procedure — Ex Parte Judgment After Hearing — Rule Applicable to Setting Aside
Where a suit is set down for hearing ex parte under Order 9 rule 8A and judgment is passed after a hearing, the judgment is entered under Order 18 rule 1 and not under any of rules 4 to 7 of Order 9; an application to set such a judgment aside cannot be brought under Order 9 rule 9 and must be brought under Order 9 rule 24.
Civil Procedure — Sufficient Cause Under Order 9 Rule 24
Under Order 9 rule 24 a defendant may have an ex parte decree set aside only on satisfying the court that summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing; the merits of the defence are not considered at that stage.
Statutory Interpretation — Procedural Rules — Absence of Decided Authority Is Not a Lacuna
The existence of specific procedural rules governing a matter is not negated by the absence of decided cases determining which of two rules applies; a court's failure to decide which rule applies to a particular situation does not mean there is a lacuna in the law.

Legislation cited (8)

  • Civil Procedure Rules O.9 r.9
  • Civil Procedure Rules O.9 r.24
  • Civil Procedure Rules O.9 r.8A
  • Civil Procedure Rules O.9 r.4
  • Civil Procedure Rules O.9 r.6
  • Civil Procedure Rules O.18 r.1
  • Civil Procedure Rules O.46
  • Civil Procedure Act s.101

Cases cited (13)

  • Kimani v McConnell (1966) E.A. 547
  • Mbogo v Shah (1968) E.A. 93
  • Kafero v Standard Bank (1970) E.A. 429
  • Patel v E.A. Cargo Handling Services (1974) E.A. 75
  • Sebei District Administration v Gashali (1968) E.A. 300
  • Waweru v Ndiga (1982-88) 1 K.A.R. 210
  • Shabir Din v Ram Parkash Anand (1955) 22 EACA 48
  • Zirabamuzaale v Correct (1962) E.A. 694
  • Patel v Star Mineral Water and Ice Factory (1961) E.A. 454
  • Mitha v Ladak (1960) E.A. 1054
  • Fort Hall Bakery Supply Co v F.M. Wangoe (1958) E.A. 118
  • Python W. Maina v. Muira (1982 - 88) I K.A.R. 171
  • Otanga v Nabunjo (1965) E.A. 384

Cases citing this judgment (30)

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.

Full judgment

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Nicholas Roussos v Gulam Hussein Habib and Another (Civil Appeal 9 of 1993) [1993] UGSC 48 (25 November 1993)
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.