Civil Appeal No. 032 of 2018
In the matter between
OKIDI ACELLAM VALENTINE
OKELLO OYARMOI APPELLANTS
Civil Procedure — Default judgments — Order 9 rule 6 of The Civil Procedure Rules applies only "where the plaint is drawn claiming a liquidated demand and the defendant fails to file a defence." — An interlocutory judgment therefore is entered against a defendant where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, where the defendant fails to appear— Appeals from interlocutory orders — The right of appeal is a creature of statute and must be given expressly by statute — appeals do not lie as of right from any other interlocutory orders — Save for interlocutory decisions specified under Order 44 of The Civil Procedure Rules, there is no right of appeal to this Court originating from interlocutory orders of a Magistrate's Court — The requirement of leave is intended as a check to unnecessary or frivolous appeals — In cases where the question relates only to exercise of discretion (not involving a point of law), leave should generally be refused — Representative suits — Failure to obtain an order to file a representative suit renders it incompetent.
[1 ] The appellants filed a representative suit on behalf of the members of the Auu-Olik Clan against the respondents jointly and severally seeking a declaration of ownership of land under customary tenure measuring approximately 800 acres situated at Lamwon Luigi village, Adilang sub-county in Agago District, recovery of that land, general damages for trespass to land, a permanent injunction restraining them from further acts of trespass to that land, interest and the costs of the suit.
- The appellants' case was that their claim of title to the said land springs from their forefathers, led by the late Okello Punyamoi, who occupied and utilised the land under customary tenure from time immemorial. Upon his death, the land was inherited by his sons; Menya Luigi, Opit Ilario and Okeny Kulado, the fathers of the appellants respectively. The last of the said sons of Okello Punyamoi died around 1956 and they all were buried on that land. Their descendants, the appellants, continued to occupy the land until around 1979 when they were forced to vacate the land by reason of incessant Karimojong cattle raids. During or around the year 2008, divers persons from an IDP Camp, including the respondents, took advantage of the appellants' absence from the land and began cultivating it. The respondents began claiming the land as theirs and turned violent against the appellants. The respondents have thwarted all attempts at an amicable settlement of the dispute, hence the suit.
- The respondents denied the appellants' claim. They averred that they rightfully occupy approximately 460 acres of land and have not trespassed onto the appellants' land. They instead counterclaimed seeking a declaration of ownership of the land under customary tenure, recovery of that land, general damages for trespass to land, a permanent injunction restraining them from further acts of trespass to that land, interest and the costs of the suit. They claim to occupy portions of the land measuring 108 acres, 200 acres, 52 acres and 100 acres respectively, each having inherited his holding from his corresponding father, during the years 1980, 1967, 1939 and 1987 respectively. None of the appellants or members of their clan has ever lived on the land. The appellants have since the year 2008 disrupted the respondents' quiet possession and enjoyment of the land, hence the counterclaim.
- On 24th July, 2017 the appellants applied for an interlocutory judgment on grounds that the respondents had been served with summons to file a defence on 23rd June, 2017 yet they had by that date not filed their written statement of defence. An interlocutory judgment was accordingly entered on 25th July, 2017. It is on the same date that the respondents filed their joint written statement of defence. When the suit came up for formal proof on 18th April, 2018, counsel for the appellant opposed the respondents’ application for an adjournment on ground that the respondents had filed their defence after the interlocutory judgment had been entered.
Ruling of the court below;
- In his ruling, the trial Magistrate granted the prayer for adjournment on grounds that as unrepresented litigants the respondents were entitled to be accorded time to engage counsel to represent them and the court could not deny them audience in light of the requirement to administer substantive justice rather than render a decision based on technicalities.
The grounds of appeal;
- The appellants were dissatisfied with that decision and appealed to this court on the following grounds, namely;
- The trial Magistrate erred in law and fact when he allowed the respondents to appear and defend the suit yet an interlocutory judgment had been entered against them and the suit had been fixed for formal proof.
- The trial Magistrate erred in law and fact when he invoked the provisions of article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995 despite the fact that an interlocutory judgment had been entered against the respondents.
- The trial Magistrate erred in law and fact by being biased in favour of the respondents when he allowed the respondents to appear and defend the suit yet they had failed to file a written statement of defence and an interlocutory judgment had already been entered against them and the suit had been fixed for formal proof.
- The trial Magistrate erred in law and fact by entertaining the respondents' oral arguments that the interlocutory judgment which had been entered against them on 25th July, 2017 be set aside contrary to the provisions of Order 52 rules 1, 2, and 3 of The Civil Procedure Rules.
- The trial Magistrate erred in law and fact by entertaining the respondents' oral arguments that the interlocutory judgment which had been entered against them when the said oral application was res judicata, at the time the respondents made it.
The duties of a first appellate court;
- Both counsel never filed submissions. Nevertheless, it is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000',  KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya v. Nsibambi  HCB 81).
- In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally. All grounds will, thus be considered concurrently.
Propriety of the default judgment;
allowed the respondents to appear and defend the suit yet an interlocutory judgment had been entered against them and the suit had been fixed for formal proof, Order 9 rule 6 of The Civil Procedure Rules applies "where the plaint is drawn claiming a liquidated demand and the defendant fails to file a defence." Formal proof under Order 9 rule 8 of The Civil Procedure Rules applies to a "claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and the defendant fails..................................................................................... to file a defence on or before the
day fixed in the summons."
- An interlocutory judgment therefore is entered against a defendant where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, where the defendant fails to appear, whereupon the suit is set down for assessment by the court of the damages or the value of the goods and damages as the case maybe be. In such cases, there will be an assessment of damages at a hearing fixed, where the amount of money, interest, and legal costs payable to the plaintiff will be determined by the Court. The suit by the appellants had no such liquidated claim. It was therefore erroneous for counsel for the appellants to have sought an interlocutory judgment.
[11 ] Instead Order 9 rule 10 of The Civil Procedure Rules provides that in all other suits not otherwise specifically provided for by the rules of that Order, in case the party does not file a defence on or before the day fixed therein and upon a compliance with rule 5 of this Order, "the suit may proceed as if that party had filed a defence." According to Order 9 rule 11 (2), "the plaintiff may set down the suit for hearing ex parte” Setting down the suit for hearing in those circumstances does not imply formal proof. The respondents were entitled to be served with a hearing notice and to be heard.
- In any event, entry of an interlocutory judgment is not cast in stone as the court has discretionary powers to set aside or vary such judgment. According to Order 9 rule 12 of The Civil Procedure Rules, where judgment has been passed pursuant to any of the preceding rules of that Order, the court may set aside or vary the judgment upon such terms as may be just. The court is only interested in establishing whether or not there exists a sufficient ground to set aside and / or vary an interlocutory judgment. The court is now enjoined in Article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995 to administer justice without undue regard to technicalities, which in this case was the failure to file a defence on time, yet there appeared not to be any significant prejudice that would have been suffered by the appellants if the interlocutory judgment was set aside. There was no inordinate delay and laches on the part of the respondents that was inexcusable as to justify blocking their access to court. It is the view of the court that any prejudice to the appellants in the circumstances of this case could be compensated by way of an award of costs. This was therefore a good case where the court properly exercised its discretion in favour of the respondents. The trial court did not misdirect itself in that respect.
Regarding judicial bias;
- Regarding the argument that the trial Magistrate manifested bias in allowing the respondents time to engage an advocate, thus necessitating an adjournment, it is trite all litigants are entitled to objective impartiality from the judiciary. It is for that reason that Principle 2.4 of the Uganda Code of Judicial Conduct, 2003 reguires a judicial officer to “refrain from participating in any proceedings in which the impartiality of the Judicial Officer might reasonably be guestioned.” A judicial officer is “impartial” when he or she is free of bias or prejudice in favour of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before him or her.
- However, there has to be a proper and appropriate factual foundation for any reasonable apprehension of bias. In the instant case there is nothing to show that the trial magistrate failed the test of impartiality. It has not been demonstrated that he failed to proceed with an open-minded, dispassionate, careful, and deliberate investigation and consideration of the complicated reality of the case before him but instead relied on stereotypical undue assumptions, generalisations or predeterminations. A reasonable person who is fully informed of and understands all facts and circumstances surrounding this case and seeing the outcome of the case, may not reasonably guestion the trial magistrate's impartiality in the matter.
- That aside, the propriety of this appeal is doubtful. The right of appeal is a creature of statute and must be given expressly by statute (see Hamam Singh Bhogal T/a Hamam Singh & Co. v. Jadva Karsan (1953) 20 EACA 17\ Baku Raphael v. Attorney General S.C Civil Appeal No. 1 of 2005 and Attorney General v. Shah (No. 4)  EA 50). It must be said, and cannot be ignored, that the already overloaded system of justice simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.
- Save for interlocutory decisions specified under Order 44 of The Civil Procedure Rules, there is no right of appeal to this Court originating from interlocutory orders of a Magistrate's Court which orders are incidental to the suit but not resulting from the final determination of the suit itself. Save for interlocutory decisions specified under Order 44 of The Civil Procedure Rules by virtue of section 76 (1) (h) of The Civil Procedure Act which confers a right of appeal from orders made under rules from which an appeal is expressly allowed by rules, appeals do not lie as of right from any other interlocutory orders.
- The interlocutory appeal provisions under Order 44 of The Civil Procedure Rules were enacted precisely so that difficult legal issues of significant importance could receive appellate consideration before the conclusion of the trial. The regime for interlocutory appeals was not designed to cater for appeals against routine procedural and evidentiary rulings, not determinant of the rights of the parties, made in the ordinary course of a trial. Therefore, there is no right of appeal from an order granting an adjournment.
- According to Order 44 rule 1 (2) of The Civil Procedure Rules, an appeal under The Civil Procedure Rules does not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given. Applications for leave to appeal should in the first instance be made to the court making the order sought to be appealed from. The requirement of leave is intended as a check to unnecessary or frivolous appeals.
- In any event, an order granting or rejecting an adjournment is a discretionary one and so an interlocutory appeal there from cannot succeed simply because the Appellate Court might have reached a different conclusion. The Appellate Court will only interfere with the exercise of that discretion in very exceptional circumstances, to prevent a manifest miscarriage of justice. In cases where the question relates only to exercise of discretion (not involving a point of law), leave should generally be refused (see Ex parte East and West India Dock Co, In re Clarke (1881) 17 Ch. D. 759 at 766; Kemper Reinsurance Co. v. Minister of Finance and Others  1 AC 1 and In re Poh  1 WLR 2). It was would be obviously absurd to allow an appeal against a decision under a provision designed to limit the right of appeal.
- Finally, under Order 1 rule 8 (1) of The Civil Procedure Rules, where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue on behalf of or for the benefit of all persons so interested. The procedure comprises two steps which must be fully complied with. The first is to obtain permission from court to bring a representative suit and the second is the requirement to giving of notice of institution of the suit by the court to all such persons, on whose behalf the suit is brought, either by personal service or by public advertisement where the numerous number of persons involved does not permit personal service. It is the court which is mandated to give the notice and it directs how it should be done in each case. There is nothing in the instant case to show that this requirement was complied with.
- An illegality once brought to the attention of curt cannot be ignored (see Makula International Ltd v. His Eminence Cardinal Nsubuga and Another  HCB 11). Order 1 rule 8 (1) of The Civil Procedure Rules that contains the essential preconditions for trial of a case as a representative suit is mandatory and not merely directory (see Ibrahim Buwembo, Emmanuel Sserunjogi, Zubairi Muwanika for and on behalf of 800 others v. UTODA Ltd., HCCS No. 664 OF 2003). The notice by public advertisement must disclose the nature of the suit as well as the reliefs claimed so that the interested parties can go on record in the suit to support the claim. Failure to obtain an order to file a representative suit renders it incompetent (see Paul Kanyima v. Rugoora  HCB 33 and Henry. B. Kamoga
- In the final result, the appeal fails. It is accordingly dismissed with the costs of the suit and of the appeal to the respondents.
Resident Judge, Gulu
For the appellant
For the respondent : M/s Owor-Abuga Co. Advocates.