Rwambogo v Kyatifu (Civil Appeal No. 0055 of 2009) [2019] UGCA 2074 (2 December 2019)
[2019] UGCA 2074
Rwambogo v Kyatifu (Civil Appeal No. 0055 of 2009)
Court of Appeal
· [2019] UGCA 2074
· 2019
Appeal Dismissed
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Observed later treatment
Cited — treatment unverified
cited in 1 (treatment unverified)
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.
No adverse treatment recorded
Cited 1 time with no adverse treatment recorded; not yet tested on the merits.
Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.
Judicial journey
Appeal & case history
Follow this matter from the decision below through each appellate court.
Affirmed
The decision below was upheld.
See the court’s words
“, agrees this appeal is dismissed with costs in the manner”
No later appellate decision was located in the Wakilii corpus. Linked from court records and operative language in the judgments.
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
On a second appeal, the Court of Appeal held that a court may found its decision on an unpleaded issue where evidence is led on it by the parties, and that no miscarriage of justice arose from the first appellate Judge's finding on unsurveyed land since the appellant had chosen not to participate in the ex parte trial. The award of costs is a matter of judicial discretion under section 27 of the Civil Procedure Act; the first appellate Judge acted within his discretion in condemning the reprehensible, obstinate appellant to 75% of costs, and any failure to give reasons occasioned no injustice. The appeal was dismissed with costs.
Outcome
Appeal dismissed; permanent injunction and boundary survey ordered against the appellant.
Facts
The respondent sued the appellant and a co-defendant in the Chief Magistrate's Court of Masaka, alleging trespass on her land. The respondent's late husband had purchased 100 acres from the late Sebbanja, of which only about 37.58 hectares (roughly 92 acres) had been surveyed and titled; the balance remained unsurveyed due to the appellant's obstruction of the surveyor. The defendants repeatedly caused adjournments and ultimately refused to attend, so the matter proceeded ex parte. The trial Chief Magistrate found the appellant a trespasser on both surveyed and unsurveyed land, ordered him to vacate, issued a permanent injunction, and awarded general damages and costs against the co-defendant alone. The appellant appealed to the High Court, which substantially dismissed the appeal and ordered him to pay 75% of the respondent's taxed costs in both lower courts. He then brought this second appeal challenging the costs orders, the uncorrected decree, and the finding on unsurveyed land.
Issues
- Whether the first appellate Judge erred in ordering the appellant to pay costs when the respondent had not cross-appealed against the trial court's order absolving him and he had not been heard on the point.
- Whether the first appellate Judge erred in failing to correct the errors in the trial court's decree.
- Whether the first appellate Judge erred in upholding a finding based on an unpleaded issue concerning trespass on unsurveyed land.
- Whether the first appellate Judge erred in awarding costs against the appellant where his appeal had substantially succeeded.
Orders
- The appellant is ordered to cease interfering with the respondent's land, whether surveyed or unsurveyed, and a permanent injunction is issued for that purpose.
- A survey shall be carried out at the respondent's cost to determine the boundaries of the respondent's 100 acres, after which the appellant shall leave any portion he still occupies.
- The appellant shall pay the costs of this appeal.
- The first appellate Judge's order on costs is upheld.
Rules and key headnotes
Pleadings — Decision on Unpleaded Issue — Evidence Led at Trial
A court may found its decision on an unpleaded cause of action or issue provided evidence is led on it and the issue is left to the court for decision in the course of the trial.
Pleadings — Unpleaded Issue — Absence of Miscarriage of Justice
Where a defendant chooses not to participate in ex parte trial proceedings, no miscarriage of justice is occasioned by a decision founded on an unpleaded issue on which the opposing party led evidence.
Costs — Judicial Discretion under Section 27 Civil Procedure Act
The award of costs is within the court's absolute but judicial discretion under section 27 of the Civil Procedure Act; costs normally follow the event and a successful party is generally awarded costs, with no mathematical formula applying.
Costs — Appellate Court's Power to Vary Costs Order after Re-evaluation
A first appellate court may, after re-evaluating the evidence, reach its own conclusions and vary a trial court's award of costs; failure to give reasons for departing from the trial court's order does not vitiate the exercise of discretion where no miscarriage of justice results.
Second Appeals — Grounds Limited to Questions of Law
Under sections 72 and 74 of the Civil Procedure Act, a second appeal to the Court of Appeal lies only on grounds of law, and not on grounds of fact or mixed law and fact.
Ex Parte Decrees — Proper Remedy under Order 9 rule 27
Where a matter is decided ex parte, the proper remedy for an aggrieved defendant is to apply to the court that passed the decree to have it set aside under Order 9 rule 27 of the Civil Procedure Rules, rather than to appeal.
Substantive Justice — Article 126(2)(e) — Procedural Irregularities
Procedural irregularities that occasion no injustice do not vitiate proceedings, and a court may determine an appeal on its merits in the interests of substantive justice without undue regard to technicalities under Article 126(2)(e) of the Constitution.
Legislation cited (7)
- Civil Procedure Act Cap.71 s.27
- Civil Procedure Act Cap.71 s.72
- Civil Procedure Act Cap.71 s.74
- Civil Procedure Rules S.I 71-1 Order 6 rule 1(1)
- Civil Procedure Rules S.I 71-1 Order 9 rule 27
- Constitution of Uganda 1995 Article 28(1)
- Constitution of Uganda 1995 Article 126(2)(e)
Cases cited (10)
- Rwantale vs Rwabutoga (1988-90) HCB 100
- Kifamunte Henry v Uganda (Criminal Appeal No. 0010 of 1997)
- Lubanga Jamada v Dr. Ddumba Edward (Civil Appeal No. 0010 of 2011)
- Odd Jobs vs. Mubia [1970] 1 EA 476
- Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
- Sinba (K) Ltd & 4 Others v Uganda Broadcasting Corporation (Civil Appeal No. 003 of 2014)
- Esso Petroleum Co. Ltd South Port Corporation (1956) AC 218
- Impressa Ing. Fortunato Federice v Irene Nabwire (Civil Appeal No. 3 of 2000)
- Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 06 of 2011)
- Mawiji vs. Aousha General Store [1970] E.A. 137
Cases citing this judgment (1)
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
The original judgment as reported. Read the original PDF before relying on any passage.
Rwambogo v Kyatifu (Civil Appeal No. 0055 of 2009) [2019] UGCA 2074 (2 December 2019)
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