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Nantale v Bugyendo (Civil Appeal No.54 of 2001)

Court of Appeal · [2002] UGCA 27 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court ruling dismissing an application to set aside an ex-parte judgment and execution
Decision
Appeal dismissed; ex-parte judgment and execution against the appellant stand

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Holding

The Court of Appeal dismissed the appeal. It held that there was proper service of summons on the appellant through an adult member of her family under Order 5 Rule 14 CPR. Applying section 102 of the Evidence Act, the burden of proving that the person served was a minor lay on the appellant, who asserted that fact; her affidavit assertion alone, without cogent evidence such as the date of birth, was insufficient. Since the application was brought under Order 9 Rule 24 CPR, proof of a good defence was not a requirement, and the court would not invoke inherent jurisdiction on an application improperly brought under that law.

Facts

On 7 October 1997 the respondent filed a suit against the appellant in the High Court at Masaka and summons to enter appearance was issued. The process server, led by the respondent to the appellant's home at Arizona Night Club, Nyendo, found a boy identified as Vincent Luwaga, a grandson of the appellant, and left copies of the plaint and summons with him. The appellant never entered appearance, so the suit proceeded ex-parte and judgment and decree were entered against her on 1 August 1998. Execution was levied against her two lorries. The appellant applied under Order 9 Rule 24 CPR to set aside the ex-parte judgment, decree and execution, contending she was not properly served and that the person served was a minor in the names of Henry Luwaga, and that she had a good defence. The respondent maintained he knew Luwaga as Vincent, aged about 20 years. The High Court dismissed the application, finding proper service and that the appellant had not proved the recipient was a minor.

Issues

  1. Whether the appellant was properly served with summons in accordance with Order 5 Rule 14 of the Civil Procedure Rules.
  2. Whether the burden lay on the appellant or the respondent to prove that the person served was a minor.
  3. Whether the trial judge erred in failing to consider the appellant's averment that she had a good defence to the suit.
  4. Whether an application brought under Order 9 Rule 24 CPR requires proof of a good defence.

Orders

  • Appeal dismissed.
  • Costs of the appeal and in the court below awarded to the respondent.

Key headnotes

Service of Process — Substituted Service on Adult Family Member — Order 5 Rule 14 CPR
Where a defendant cannot be found, service may be effected on an adult member of the family of the defendant residing with him under Order 5 Rule 14 of the Civil Procedure Rules.
Burden of Proof — Party Asserting a Fact — Section 102 Evidence Act
The burden of proving a particular fact lies on the person who wishes the court to believe in its existence; an applicant who asserts that the person served with summons was a minor bears the burden of proving that fact by cogent evidence, such as the recipient's date of birth, and a bare affidavit assertion is insufficient.
Setting Aside Ex-Parte Judgment — Order 9 Rule 24 CPR — No Requirement of Good Defence
An application under Order 9 Rule 24 of the Civil Procedure Rules to set aside an ex-parte decree turns on whether summons was duly served or sufficient cause prevented appearance; proof of a good defence on the merits is not a requirement of that rule, and the court will not invoke its inherent jurisdiction to supply such a requirement where the application is brought under that law.

Legislation cited (4)

  • Civil Procedure Rules O.5 r.14
  • Civil Procedure Rules O.9 r.24
  • Civil Procedure Act s.101
  • Evidence Act s.102

Cases cited (4)

  • Erukana Kavuma v S.T. Mehta [1960] EA 305
  • Waweru v Kiroma [1969] EA 172
  • Nyarrendo & 20 Others Vs. Uganda Cement Industry (1977) HCB 12
  • Abbas Nsubuga Vs. Asuman Kamya (1985) HCB 104
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.