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Bizibu Charles v Nalwoga Juliet (Civil Appeal No. 26 of 2005)

Court of Appeal · [2005] UGCA 82 · 2005 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court's dismissal of an application to set aside an ex parte (default) judgment
Decision
Ex parte judgment in HCCS No. 768 of 1998 set aside; appellant permitted to have the suit tried on its merits

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Holding

The Court of Appeal allowed the appeal, holding that the judge hearing the application to set aside the ex parte judgment failed to evaluate the evidence of service and wrongly assumed that the trial judge had been satisfied that summons to enter appearance were duly served. The substituted service by newspaper advertisement related only to the hearing of a transfer application, not to service of the summons, and used a different name from the appellant's. The appellant, traceable at his Luwero residence, was not duly served and was thereby prevented by sufficient cause from appearing. Having shown a defence, he was entitled to have the ex parte judgment set aside.

Facts

The respondent sued the appellant and two others jointly for special and general damages arising from a motor accident involving vehicle UBA 375. Summons to enter appearance was served on one Lusiba Monday at a shop in Kisekka Market, Kampala. The respondent obtained default judgment and later transferred the suit to the High Court, where substituted service by newspaper advertisement was ordered for the hearing of the transfer application. The High Court entered judgment in formal proof, awarding the respondent UGX 832,700 special damages and UGX 10,000,000 general damages with interest. When execution was attempted at the appellant's shop in Semuto, Luwero, he resisted, asserting he was a resident there, owned no shop in Kisekka Market, did not know Lusiba Monday, and had sold the vehicle before the accident. The appellant's name was recorded as Buzubu, then changed to Bizibu. He applied to set aside the decree on the ground he was never duly served; the High Court dismissed the application.

Issues

  1. Whether the appellant was duly served with summons to enter appearance before the default judgment was entered against him.
  2. Whether the trial judge properly evaluated the evidence of service before dismissing the application to set aside the ex parte judgment.
  3. Whether the appellant had a defence to the suit warranting setting aside the ex parte judgment.

Orders

  • Appeal allowed.
  • The ex parte judgment in High Court Civil Suit No. 768 of 1998 set aside.
  • Costs to the appellant.

Key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Order 9 rule 24 CPR
An ex parte decree shall be set aside where the defendant proves that the summons was not duly served on him, or that he was prevented by sufficient cause from appearing when the suit was called for hearing.
Civil Procedure — Application to Set Aside — Duty to Evaluate Evidence of Service
A judge hearing an application to set aside an ex parte judgment must independently evaluate the evidence of service and may not simply assume that an earlier judge was satisfied that service had been duly effected.
Civil Procedure — Substituted Service — Scope and Adequacy
Substituted service ordered for the hearing of one application does not constitute service of the summons to enter appearance in the suit, and newspaper service is inadequate where the publication is not one the defendant in his locality can reasonably be expected to read.
Civil Procedure — Affidavit of Service — Due Diligence of Process-Server
An affidavit of service must demonstrate that the process-server made real and proper inquiries as to when and where the defendant was likely to be found, and the court must scrutinise it to satisfy itself that due diligence was exercised before entering default judgment.

Legislation cited (5)

  • Civil Procedure Rules Order 9 rule 9
  • Civil Procedure Rules Order 9 rule 24
  • Civil Procedure Rules Order 48 rule 1
  • Judicature Act s.35
  • Traffic and Road Safety Act s.50

Cases cited (2)

  • Akisoferi M. Ogola vs. Akika Othieno and Another [1997] HCB 53
  • Imelda Ndiwalungi Nakadde vs. Roy Busuulwa Nsereko and Another [1995] HCB 73
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.