Wakilii

Okeny v Obol (MISC. CIVIL APPLICATION No. 063 OF 2012)

High Court · [2019] UGHCCD 150 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for revision of magistrate's court judgment under s.83 Civil Procedure Act
Decision
Applicant's attempt to revise the magistrate's judgment dismissed; the lower court judgment in favour of the respondent stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: Revision dismissed. A revision is not a substitute for appeal and should not be invoked where an appeal lies. Where a counterclaim is for an unliquidated demand and no defence is filed, Order 9 r.10 requires that the suit proceed as if a defence was filed. Fraud requires a heightened standard of proof and cannot be deemed admitted. Expert evidence admitted irregularly after closure of the defence case and without testimony or cross-examination was properly rejected by the successor magistrate.

Outcome

Applicant's attempt to revise the magistrate's judgment dismissed; the lower court judgment in favour of the respondent stands

Facts

The respondent sued for recovery of land he purchased in 1981 and for which he obtained leasehold title in 2004. The applicant counterclaimed, alleging his late father never sold the land and the respondent was merely a caretaker. The applicant claimed fraud in procurement of the title. The magistrate entered judgment for the respondent. The predecessor magistrate, after closure of the defence case, directed forensic analysis of a thumbprint on the sale agreement. The successor magistrate rejected the expert report as irregularly received. The applicant filed a notice of appeal but never filed a memorandum of appeal. Instead, he sought revision, arguing the trial court should have entered default judgment on the counterclaim and should not have rejected the expert evidence.

Issues

  1. Whether the trial magistrate erred in failing to enter a default judgment on the counterclaim where no defence was filed.
  2. Whether the trial magistrate erred in rejecting the expert handwriting evidence that had been received on record by his predecessor.
  3. Whether revision is an appropriate remedy where a right of appeal exists.

Orders

  • Application dismissed.
  • Costs of the application awarded to the respondent.
  • Notice of appeal filed 1 June 2012 struck out with costs to the respondent.

Rules and key headnotes

Revision jurisdiction — distinguished from appeal
Revision is not a substitute for appeal. The High Court's revisional power under s.83 of the Civil Procedure Act is limited to cases where no appeal lies. Where a right of appeal exists, it is the proper remedy. An election of one remedy bars pursuit of the other.
Default judgment — counterclaim for unliquidated demand
Where a counterclaim is for an unliquidated demand and no defence is filed, Order 9 r.10 of the Civil Procedure Rules provides that the suit proceeds as if the defendant had filed a defence. The counterclaimant bears the burden of proof as if a defence had been filed. The court is not obliged to enter a default judgment in the absence of an application by the counterclaimant under Order 13 r.6.
Admissions — fraud
Although allegations of fact not specifically traversed are taken as admitted, fraud cannot be admitted constructively. Fraud requires a heightened standard of proof and must be established by evidence tested under cross-examination unless expressly admitted.
Successor magistrate — evidence recorded by predecessor
Under Order 18 r.11(1) of the Civil Procedure Rules, a successor magistrate may deal with evidence taken down by a predecessor as if the evidence had been taken down by the successor. The successor has the power to evaluate and exclude evidence irregularly received by the predecessor.
Court's power to summon witnesses — adversarial system
Under the adversarial system, parties control their cases and are responsible for gathering and presenting evidence. The court's power under Order 18 r.13 and s.164 of the Evidence Act to recall witnesses or summon additional witnesses must be exercised sparingly and only where the just decision of the case demands it, not to fill gaps in a party's case or for corroboration. The court must not descend into the arena by summoning witnesses not called by either party.
Documentary evidence — authentication and testimony
For a document to be admissible, it must be authenticated by a witness who testifies to its contents under oath. Evidence must be recorded in accordance with Order 18 r.5, which envisages recording of evidence of a witness present in open court. A document cannot form part of evidence unless its author or a competent person enters the witness box and confirms its contents on oath, unless admitted by consent or by affidavit.
Expert evidence — admissibility and weight
Expert evidence is admissible only where the witness has appropriate expertise, which may be gained from study or practical experience. The expert must testify in court and be subjected to cross-examination unless waived. Expert evidence is opinion evidence of advisory character only; it does not decide the issue and can be rejected if inconsistent with other evidence. The court must be satisfied as to the expert's qualifications and the objective procedure that guided the opinion. An expert report is inadmissible unless the expert gives reasons for the opinion and is cross-examined.

Legislation cited (14)

Cases cited (15)

  • Matemba v Yamulinga [1968] EA 643
  • Abdal Hassan v Mohamed Ahmed [1989] TLR 181
  • Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] 1 All E R 1053
  • Busuulwa Sebuliba v Cooperative Bank Ltd [1982] HCB 129
  • Wasswa v Ochola (Supreme Court Civil Appeal No. 22 of 1993)
  • Kampala Bottlers Ltd v Damanico Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • R v Silverlock [1894] 2 QB 766
  • Frazer v Walker [1967] AC 569
  • Kampala Bottlers Ltd v Damanico Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Nalima v Musoke (Supreme Court Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Zaabwe v Orient Bank (Supreme Court Civil Appeal No. 4 of 2006)
  • Sebuliba v Cooperative Bank Ltd [1987] HCB 130
  • Kibalya v Kibalya [1994-95] HCB 80
  • Rajendra Prasad v Narcotic Cell (1999) 6 SCC 110

Full judgment

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

Okeny Vs Obol (MISC. CIVIL APPLICATION No. 063 OF 2012) [2019] UGHCCD 150 (9 May 2019)
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.