Mugisha Benon v Mirembe Bosco (Civil Appeal No. 23 of 2022) [2026] UGHC 1223 (5 October 2026)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT MPIGI CIVIL APPEAL NO. 23 OF 2022 MUGISHA BENON ====================================== APPELLANT VERSUS MIREMBE BOSCO======================================RESPONDENT

Judgment

BEFORE ACTING LADY JUSTICE DEEPA VERMA Introduction 10 The Appellant, being dissatisfied with the judgment and orders of His Worship Watyekere George Wakubona, then Magistrate at the Chief Magistrate’s Court of Mpigi, sitting at Nsangi, in Civil Suit No. 016 of 2018, lodge d this appeal. The trial court dismissed the Appellant’s suit for recovery of money, including compensation and damages for wrongful detention, for want of prosecution and subsequently entered judgment in favour of the Respondent on his counterclaim. By th is appeal, the Appellant seeks to have the judgment and orders of the trial court set aside or quashed or, in the alternative, to be granted unconditional leave to appear and defend the counterclaim in Civil Suit No. 016 of 2018. The Appellant raised the following grounds of appeal;

1. The learned trial Magistrate erred in law and fact when he failed to properly direct 20 himself on the legality of service of summons, and thereby wrongly dismissed Civil Suit No. 016 of 2018.

2. The learned trial Magistrate erred in law and fact when he found that the Appellant owed the Respondent UGX 3,020,000/= (Uganda Shillings Three Million Twenty Thousand), thereby arriving at a wrong decision.

3. The learned Magistrate erred in law and fact when he failed to properly evaluate the evidence and misdirected himself on the law regarding the proof of triable issues on breach of contract, thereby reaching a wrong decision.

4. The trial Magistrate erred in law and fact when he awarded UGX 3,000,000/= (Uganda Shillings Three Million) as general damages to the Respondent. 30

5. The learned Magistrate erred in law and fact when he failed to determine the rights and obligations of the parties to the contract.

Background

The Appellant was the Plaintiff in the trial court. His case, as pleaded in the plaint, was that the Respondent sold him a shop situated at Kimbejja -Buddo for UGX 3,700,000/= (Uganda Shillings Three Million Seven Hundred Thousand), of which he paid UGX 1,180,000/= (Uganda Shillings One Million One Hundred Eighty Thousand), leaving a balance of UGX 2,520,000/= (Uganda Shillings Two Million Five Hundred Twenty Thousand). He stated that the parties had agreed that he would pay the outstanding balance on 2nd March 2018 pursuant to an agreement executed to that effect. He further 40 alleged that, before the agreed payment date, the Respondent caused his arrest on 6th January 2018, resulting in his detention at Budo Police Post for two days. He was arrested a second time on 22nd January 2018 and detained for one day at Bigodi Police Station in relation to the same matter. The Appellant contended that the arrests and detention were unlawful and wrongful and consequently claimed compensation and general damages. The Respondent filed a Written Statement of Defence denying the Appellant’s allegations. He admitted that he had sold the shop to the Appellant for UGX 3,700,000/= but disputed the amount paid, stating that the Appellant had paid only UGX 680,000/=, leaving an outstanding balance of UGX 3,020,000/= (Uganda Shillings Three Million Twenty 50 Thousand). He stated that the Appellant had agreed to pay part of the outstanding balance on 20th December 2018 and the remainder by February 2018, but failed to honour that arrangement. The Respondent further contended that the Appellant’s arrest arose from his failure to pay the outstanding balance.

In addition to his defence, the Respondent filed a counterclaim seeking recovery of the outstanding UGX 3,020,000/= together with gen eral damages and costs. The Appellant did not file a reply to the counterclaim. The matter was thereafter set down for hearing. The Appellant, having instituted the suit, failed to take the necessary steps to prosecute his claim and ceased participating in the proceedings. The Respondent consequently moved the trial court to proceed with the 60 matter. The Appellant’s suit was subsequently dismissed for want of prosecution. The dismissal of the main suit did not dispose of the Respondent’s counterclaim, which remained pending for determination. The Respondent thereafter proceeded with his counterclaim. An interlocutory judgment was entered in his favour upon the Appellant’s failure to file a defence to the counterclaim, and the matter was subsequently set down for formal proof. The Appellant was served with the hearing notice by substituted service through publication in the Daily Monitor. An affidavit of service was filed on the record confirming the service. At the formal proof hearing, the Respondent presente d two witnesses in support of the counterclaim. The evidence adduced concerned, among other matters, the sale of the 70 shop, the purchase price, the amount paid by the Appellant, and the outstanding balance claimed by the Respondent. Upon consideration of th e evidence, the trial court entered judgment in favour of the Respondent and awarded him UGX 3,020,000/= as the outstanding balance, UGX 3,000,000/= as general damages and the costs of the suit. The Appellant, being dissatisfied with the dismissal of his s uit and the judgment entered on the Respondent’s counterclaim, lodged the present appeal seeking, inter alia, an order setting aside or quashing the decision of the lower court or, in the alternative, unconditional leave to appear and defend Civil Suit No. 016 of 2018. Representation Counsel Katamba represents the Appellant, while Counsel Asiimwe Brian represents the 80 Respondent. Duty of the First Appellate Court The duty of a first appellate court is well settled. In Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998) [1999] UGSC 1, the Supreme Court held that:

“…It is the duty of this court, as a first appellate court, to re-appraise the evidence and subject it to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In so doing, however, the court has to bear in mind that it has neither seen nor heard the witnesses and should, therefore, make due allowance in that respect…” This Court is therefore enjoined to reconsider and re-evaluate the evidence on record and 90 draw its own independent conclusions, while bearing in mind that it did not have the opportunity to observe the witnesses testify. I shall bear this duty in mind in resolving the

Grounds of Appeal

Resolution. Ground 1: Whether the learned trial Magistrate erred in law and fact by failing to properly direct himself on the legality of service of summons, thereby dismissing Civil Suit No. 016 of 2018. The Appellant contends that the learned trial Magistrate failed to prope rly address the legality of service of summons and that this failure resulted in the dismissal of his suit. Counsel for the Appellant, however, advanced submissions on a different issue 100 altogether. Rather than addressing the legality of service of summons, counsel’s submissions concerned the alleged failure to serve hearing notices and the Appellant’s right to natural justice and a fair hearing under Article 28 of the Constitution. Counsel submitted that the record does not disclose proof of service of hear ing notices and that no affidavit of service was filed. It was further argued that, in the absence of such proof, and considering that the matter had been referred to mediation, the Appellant was unaware of the subsequent proceedings and was thereby denied a fair hearing. It is necessary at the outset to clarify that Ground 1, as framed, challenges the legality of the service of summons, whereas the submissions advanced by counsel concern the subsequent service of hearing notices. These are distinct procedural processes, serving 110 different purposes and arising at different stages of the proceedings, and ought not to be conflated. The Court must therefore first determine whether any defect in the service of summons, which is the matter expressly raised in Ground 1, has been established. Upon careful perusal of the lower court record, I find that summons to file a defence were duly issued and served by the Appellant, as the Plaintiff in the suit, upon the

Defendant/Respondent. The Appellant was therefore the par ty who instituted the proceedings and caused the summons to be issued for service upon the Respondent. The record further shows that, upon service of the summons, the Respondent entered appearance and filed a Written Statement of Defence together with a co unterclaim. The Respondent’s subsequent participation in the proceedings is clear evidence that the 120 summons was duly served and that he was made aware of the suit and the nature of the claim brought against him. The purpose of service of summons is to brin g the institution and nature of the proceedings to the attention of the defendant and to allow him to enter appearance and respond to the claim. That purpose was fully achieved in the present case, as demonstrated by the Respondent’s appearance and filing of his defence and counterclaim. In the circumstances, I find no basis for the complaint that the service of summons was defective or that the learned trial Magistrate failed to properly direct himself on that issue. The record shows that the Appellant in stituted the suit and caused the summons to be served upon the Respondent. Upon service, the Respondent entered appearance and 130 filed a defence and counterclaim. The Respondent therefore participated in the proceedings without challenging the service of the summons. In those circumstances, the legality of the service of the summons does not arise as a genuine issue for determination in this appeal. The real complaint raised by the Appellant concerns the subsequent service of hearing notices. To determine tha t complaint, it is necessary to consider the circumstances in which the matter proceeded after the parties had participated in the proceedings and the matter was referred to mediation. The Appellant thereafter took no further steps to prosecute his claim. The Respondent, having already filed a defence and counterclaim arising from the same transaction, was entitled to take steps to have the matter proceed 140 to hearing. The subsequent hearing notices were issued and served upon the Appellant by substituted service through publication in the Daily Monitor, pursuant to Order 5 Rule 18

of the Civil Procedure Rules, S.I. 71-1. The record contains an affidavit of service sworn by Rwabiite Nobert of M/s M. Mugoya & Co. Advocates, confirming that the substituted service was effected by publication. Despite that service, the Appellant neither attended court on the scheduled hearing date nor took any steps to resume prosecution of his suit. His assertion that he was unaware of the subsequent proceedings is therefore not borne out by the record. The law recognizes that a plaintiff who invokes the jurisdiction of the court bears a 150 continuing obligation to diligently prosecute the claim. In Nilani v Patel & Others [1969] EA 340, Dickson J. stated: “It is trite law that in every suit, it is the plaintiff who is in pursuit of a remedy, and he should take all necessary steps to achieve an expeditious determination of his claim… when he fails to do so, the defendant is entitled to invoke the court’s process to bring the matter to a conclusion.” The principle underlying the decision is that a plaintiff cannot institute proceedings, thereafter cease taking the necessary steps to advance them, and at the same time expect the defendant to remain indefinitely exposed to unresolved litigation. The obligation to diligently prosecute a suit is a continuing one, and where a plaintiff fails to 160 discharge that obligation, the defendant is entitled to invoke the court’s procedural mechanisms to bring the proceedings to a conclusion. This p rinciple serves not only the interests of the defendant but also the broader interests of finality and the efficient administration of justice. The circumstances of the present case bring that principle into clear focus. The Appellant was the plaintiff who instituted the original suit. The Respondent entered appearance, filed a Written Statement of Defence and lodged a counterclaim arising from the same transaction. When the Appellant subsequently ceased participating in the proceedings and failed to prosec ute his own claim, the Respondent was not required to leave the matter indefinitely pending. He was entitled to invoke the court’s process to have the 170 Appellant’s suit proceed to determination or, where the circumstances warranted, be dismissed for want of prosecution. The Appellant’s failure to prosecute his own suit did not, moreover, extinguish or suspend the Respondent’s independent right to pursue his counterclaim. The counterclaim

constituted a distinct claim before the court, and the Respondent was entitled to take the necessary procedural steps for its determination. The subsequent progression of the counterclaim, including the entry of interlocutory judgment upon the Appellant’s failure to file a defence to it and its eventual setting down for formal proof, must therefore be viewed separately from the dismissal of the Appellant’s own suit for want of prosecution. The Appellant’s reliance on the right to a fair hearing under Article 28 of the Constitution 180 does not alter that position. The right to a fair hearing requires that a party be afforded a reasonable and lawful opportunity to participate in proceedings affecting his rights and interests. It does not, however, impose an obligation upon the court or the opposing party to keep proceedings indefini tely pending where a party has ceased to participate, particularly where reasonable steps have subsequently been taken to notify that party of the proceedings. In the present case, the record demonstrates that the Appellant was served with hearing notices through the prescribed mode of substituted service. An affidavit of service confirming the publication is on record. The Appellant nevertheless failed to attend court or take any steps to participate in the proceedings thereafter. There is therefore no basis 190 for concluding that he was shut out of the proceedings without notice or denied a reasonable opportunity to be heard. In these circumstances, the Appellant cannot properly rely upon his own failure to participate in the proceedings as a basis for impeac hing the subsequent proceedings. The Respondent invoked the court’s process only after the Appellant had failed to diligently prosecute his suit, and the Appellant was thereafter served through a mode of substituted service authorised by law. The record do es not support the contention that the proceedings proceeded against the Appellant without notice or in breach of the principles of natural justice. I therefore find that the service of summons upon the Appellant was duly effected, that 200 the subsequent subs tituted service of hearing notices was lawful and regular, and that the Appellant has not demonstrated any procedural defect or denial of a reasonable opportunity to be heard sufficient to impeach the proceedings or the resultant dismissal of his suit. Accordingly, Ground 1 fails.

Grounds 2, 3 and 5: Whether the learned trial Magistrate erred in law and fact in finding that the Appellant owed the Respondent UGX 3,020,000/=, in failing to properly evaluate the evidence and in failing to determine the rights and obligations of the parties under the contract. Grounds 2, 3 and 5 are closely related, as they all challenge the trial court’s determination 210 of the Respondent ’s counterclaim arising from the sale agreement and the amount allegedly outstanding thereunder. They shall therefore be considered together. I have carefully perused the lower court record and the judgment. At page 2 of his judgment, the learned trial Magistrate stated: “It is important to note that although the defendant to the counterclaim was s erved with the Written Statement of Defence and the counterclaim, he did not file a reply to the counterclaim as is required under the law. An interlocutory judgment in default was accordingly entered in favour of the counterclaimant, and the matter was fixed for formal proof.” The first question that arises, therefore, is whether the procedure adopted by the trial 220 court after the Appellant failed to file a defence to the counterclaim was proper in law. Order 9 Rule 8 of the Civil Procedure Rules provides: “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, and the defendant fails or all defendants, if more than one, fail to file a defence on or before the day fixed in the summons, the plaintiff may, subject to rule 5 of this Order, enter an interlocutory judgment against the defendant or defendants and set down the suit for assessment by the court of the value of the goods and damages or the damages only, as the case may be, in respect of the amount found to be due in the course of the assessment.” 230 The scope of the above provision was explained by Evershed LJ in Abbey Panel & Sheet Metal Co Ltd Vs Barson Products (a firm) [1947] 2 All ER 809 as follows; “The intended scope and purpose of RSC, Ord 13, rr. 3–7 inclusive, appear to me to be reasonably plain. They provide that where a plaintiff has in his writ made a claim against a defendant for one or more of the following, viz, (a) a debt or