Wango v Thembo (Civil Appeal 4 of 2024) [2024] UGHC 659 (25 June 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KASESE

HCT-25-LD-CA-0004-2024

(ARISING FROM KASESE CHIEF MAGISTRATE KAS -00-CV-CS-NO. 008 OF 2008)

WANGO THOMAS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

THEMBO DAVID KABAU:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE HON JUSTICE DAVID S.L. MAKUMBI

JUDGMENT

REPRESENTATION:

Appellant represented by M/S Bagyenda & Co. Advocates.

Respondent represented by M/S Masereka C & Co. Advocates.

BACKGROUND:

This is an appeal by which the Appellant, having been granted extension of time to appeal the Judgment and Orders of His Worship Sserubuga Charles, Chief Magistrate Kasese, delivered on 17^th April 2018, raises the following grounds:

1. The learned Trial Chief Magistrate erred in law and fact when he failed to find that the appellant was not served with court process.

2. The learned Trial Chief Magistrate erred in law and fact when he administered justice with undue regard to technicalities and thereby occasioned a miscarriage of justice.

The Appellant accordingly made the following prayers:

1. The Appeal be allowed.

2. The Judgment and Orders of the lower court be set aside.

3. Retrial of the Original suit.

4. Costs of the Appeal be granted to the Appellant.

The facts in this matter briefly are that the Appellant was the owner of suit property LRV 3434 Folio 25, Plot 25 at Kapoli Road in Kasese. At some point, the suit property was registered to one Bakka Muhamad and then to the Respondent. The property is presently in the possession of another party and forms the main cause of disagreement in this matter.

In 2008, the Respondent in this matter filed civil suit vide Kasese Chief Magistrate Court KAS-00-CV-CS No. 008 of 2008 against the Appellant and one other person. The suit proceeded ex parte and was decided in favour of the Respondent.

The Appellant being dissatisfied with the decision of the Chief Magistrate Court sought orders before the same Court vide Miscellaneous Application No.15 of 2013 to set aside the ex parte Judgement in Civil Suit N.008 of 2008 be set aside on grounds that he was not properly served with summons to appear and defend against the matter. The Appellant’s application was dismissed as the Court held that he had been properly served and that the matter had long been overtaken by events as the judgment in question had already been executed.

The Appellant followed this decision with a number of applications which he filed and withdrew before he finally brought an application before this Court vide HCT-01-CV-MA No. 0022 of 2019. By that application, this Court granted the Appellant leave to appeal the decision in Kasese Chief Magistrate Court KAS-00-CV-CS No. 008 of 2008 out of time.

ANALYSIS:

Counsel for the Respondent raised two preliminary objections to which I shall first direct my attention before addressing the substantive grounds of appeal. Counsel for the Respondent raised the following preliminary objections:

1. The appellant’s appeal was improperly instituted and it was contrary to the ruling and orders in High Court Miscellaneous Application No. 22 of 2019.

2. That the appellant’s appeal was illegally and improperly filed contrary to the laws and Civil Procedure Rules

Preliminary Objection 1:

Counsel for the Respondent argued that according to the decision of the High Court in Miscellaneous Application No. 022 of 2019 delivered on 16^th September 2021, the Applicant had been granted leave to appeal the decision in Kasese Chief Magistrate Miscellaneous Application No. 15 of 2013 out of time. Counsel therefore contended that the Appellant had instead wrongly filed an appeal against the decision in the main suit.

Counsel for the Appellant argued in response that the appeal against the decision in the main suit was correctly filed in accordance with this Court’s order in Miscellaneous Application No. 022 of 2019. He pointed out that the Learned Lady Judge had determined that the attempt to amend the application to appeal out of time against Kasese Chief Magistrate MA No. 15 of 2013 was not correct. The Learned Lady Judge had determined that the correct course of action would be to appeal the decision in the main suit determined by the Chief Magistrate.

I have had the opportunity of examining the ruling of the Learned Trial Judge in High Court MA No. 022 of 2019. I do agree with Counsel for the Appellant that the context of the ruling related to the main suit vide Kasese Chief Magistrate Court Court KAS-00-CV-CS No. 008 of 2008. Having determined that appealing out of time against the decision in Kasese Chief Magistrate MA No. 15 of 2013 was wrong, she reasoned that filing an appeal in the main suit was the correct course of action. This is the basis upon which she went ahead to grant the Appellant leave to appeal the decision in the main suit out of time hence the appeal before this Court.

I therefore overrule the first preliminary objection.

Preliminary Objection 2:

Under this objection, Counsel for the Respondent argued that this appeal was improperly laid before this court and that according to Order 9 Rule 12 of the Civil Procedure Rules the Appellant needed to first file an application to set aside the ex parte judgement and then seek leave to appear and defend the suit. It was therefore Counsel’s contention that this appeal was brought in contravention of the Civil Procedure Act and Rules and ought to be dismissed.

In response to the second objection Counsel for the Appellant argued that Section 67(1) of the Civil Procedure Act Cap 71 provides that an appeal may lie from a decree passed ex parte and that ended with an ex parte judgement and an ex parte decree.

Counsel further argued that Order 9 Rule 12 of the Civil Procedure Rules was not a bar to filing an appeal as of right or with leave as long as there is a judgment or decree of court. It was his contention that one may apply to set aside an ex parte judgement but does not take away a right of appeal under Section 67 of the Civil Procedure Act Cap 71.

The central issue therefore under this objection is whether or not this appeal is properly before this court in light of Section 67(1) of the Civil Procedure Act and Order 9 Rule 12 of the Civil Procedure Rules.

Section 67(1) of the Civil Procedure Act provides that an Appeal may lie from an original decree passed ex parte.

Order 9 Rule 12 of the Civil Procedure Rules provides that,

“Where judgment has been passed pursuant to any of the preceding rules of this Order, or where judgment has been entered by the registrar in cases under Order L of these Rules, the court may set aside or vary the judgment upon such terms as may be just.”

It would appear from the abovementioned provisions of the law that there is nothing in Order 9 Rule 12 preventing the Appellant from exercising a right of appeal under Section 67(1) of the Civil Procedure Act.

However, notwithstanding the above, there remains a question of whether this appeal is properly instituted before this court based on the grounds themselves. Without necessarily delving into the merits of the appeal, I observed that the first ground of appeal related to the failure of the Learned Trial Magistrate to consider that the Appellant was never served.

The raising of this ground creates an issue in relation to Section 7 of the Civil Procedure Act concerning res judicata. It is provided thereunder that,

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.”

In this matter the Appellant takes issue with the decision of the Chief Magistrate in KAS -00-CV-CS No. 08 of 2008 but does so raising grounds extensively traversed in Kasese Chief Magistrate Court Miscellaneous Application No. 15 of 2013. In that Application, the Learned Trial Chief Magistrate ruled that the Appellant was properly served and gave extensive reasons why she felt he was properly served. In such circumstances, it is immaterial whether the decision was correct or not. The decision remains valid unless appealed to a superior court and set aside. In this present case, the Appellant is moving this Court to decide on appeal against the decision in a main suit for which he subsequently denied orders for the setting aside of the ex parte judgment in a Miscellaneous Application arising from the main suit.

The grounds upon which this present Appeal is based would require this Court to re-open the question of whether or not the Appellant was properly served which question was already previously decided upon in Kasese Chief Magistrate Miscellaneous Application No. 15 of 2013. The decision in MA 15 of 2013 has never been overturned on appeal and the ex parte judgment and decree still stands to date.

In filing this Appeal, the Appellant cannot simply pretend that MA 15 of 2013 does not exist. It does exist and has a direct bearing on this present appeal.

According to the Ruling of the Learned Chief Magistrate Agatonica Mbabazi in the aforementioned Miscellaneous Application dated 25^th August 2018, she held on Pages 1-2 that,

“Furthermore, the applicant did not show any reason why they allege that the affidavit (of service) on record is false yet it is not denied by the 2^nd applicant who is the wife of the 1^st applicant and she signed the summons.

…

I have carefully read through the court record and all the annexture and I hold thus:

On the 1^st ground, the court record shows that the applicant was served through his wife who is the 2^nd applicant/2^nd defendant. An affidavit of service deponed by Elly Kabebi dated 2/02/2008 is on record. The 2^nd defendant is a member of the family.

Order 5 Rule 13 CPR provides that in any suit [where] the defendant cannot be found, service may be made on an agent of the defendant who is residing with him or her.

It’s my finding therefore that the applicant was properly served since service was effected on the 2^nd defendant/2^nd applicant and she accepted the service.”

In light of the holding above, the Appellant ought to specifically appeal against the decision raising grounds why he disagreed with the Chief Magistrate. What has happened instead is that the Appellant has essentially resurrected the same contentions in this appeal without demonstrating why he disagreed with the lower court in Kasese Chief Magistrate Court MA No. 15 of 2013. This is evident in the submissions of Counsel for the Appellant who argued at length under Ground 1 about the circumstances of the service of Summons on the Appellant. The issue of service is also traversed extensively again in Ground 2 where Counsel for the Respondent takes issue with service on a person who cannot be found among other issues.

In light of the above, I find that in as much as both grounds of appeal in this matter inevitably stand on the question of service of the Appellant in Kasese Chief Magistrate suit KAS -00-CV-CS No. 08 of 2008, this Appeal is legally misconceived.

In considering the above, I consider the rationale behind res judicata as established under Section 7 of the Civil Procedure Act. The rationale therein is always to ensure finality and judicial efficiency. Without this provision, litigants would inevitably inundate the court system with endless claims about issues already properly adjudicated upon. This in turn would lead to uncertainty and inconsistency in the court process.

In the case of Ponsiano Semakula v. Susane Magala and others (1993) KALR 213 the Court of Appeal held that,

“The doctrine of res-judicata, embodied in s 7 of the Civil Procedure Act, is a fundamental doctrine of all courts that there must be an end of litigation. The spirit of the doctrine succinctly expressed in the well-known maxim: ‘nemo debt bis vexari pro una et eada causa’ (No one should be vexed twice for the same cause). Justice requires that every matter should be once fairly tried and having been tried once, all litigation about it should be concluded forever between the parties. The test whether or not a suit is barred by res-judicata appears to be that the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res-judicata applied not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time”.

In the matter of Onzia Elizabeth v Shaban Fadul – Arua High Court Civil Appeal No. 19 0f 2013, the learned Justice Stephen Mubiru relying in part on the authority above held that,

“The plea of res judicata is a question of mixed law and fact; it is founded on proof of certain facts and then by applying the law to the facts so found. The basic method in deciding the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of the previous suit and then to find out as to what was decided by the judgment which is said to trigger the res judicata plea. The plea has to be substantiated by producing the copies of the pleadings and judgment in the previous suit. In some cases only a copy of the judgment in the previous suit is filed in proof of a plea of res judicata and if the judgment contains exhaustive or the requisite details of the material averments made in the pleadings and the issues which were taken at the previous trial, it may be sufficient proof.”

Going by the reasoning of my learned brother above, I am of the view that there is ample evidence in this matter that the Appellant in this matter is inviting this court to revisit an issue that was already handled by the lower court and for which he did not appeal. He is in essence subjecting it to a different appeal process unrelated to the previous decision where it was already settled. This is tantamount to requiring the Respondent respond to virtually the same arguments as were settled in the lower court vide Kasese Chief Magistrate Court MA 15 of 2013 without the same having been specifically appealed. This is not only vexatious to the Respondent, it also goes against the principles of efficiency and finality in judicial matters.

The Respondent in this matter did not specifically plead res judicata but to the extent that it is evident to me from the lower court records, I cannot simply close my eyes to it. There is proof of res judicata in this matter to the extent that there is a ruling delivered by Her Worship Agatonica Mbabazi on 25^th August 2018 vide Kasese Chief Magistrate Court MA 15 of 2013 which has never been overturned on essentially the same matter for which the Appellant is raising in this appeal.

Preliminary Objection 2 is therefore upheld because this appeal is improperly before court not because of Order 9 Rule 12 of the Civil Procedure Rules as argued by Counsel for the Respondent, but rather because the entire subject of the appeal is res judicata contrary to Section 7 of the Civil Procedure Act.

ORDERS:

1. This appeal is dismissed with costs to the Respondent on grounds that it is brought contrary to Section 7 of the Civil Procedure Act.

2. Judgment of the lower court in Chief Magistrate Court KAS -00-CV-CS No. 08 of 2008 upheld.

So ordered.

Right of appeal explained.

David S.L. Makumbi

JUDGE

25/06/24