Edison Kanyabwera v Pastori Tumwebaze [2005] UGSC 1

Supreme Court · 2005 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal decision concerning the review and setting aside of an ex parte judgment of the High Court

Decision

Appeal allowed; ex parte judgment set aside and the suit remitted to the High Court for trial de novo

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 7 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court allowed the appeal. Under Order 5 rule 17 of the Civil Procedure Rules, a serving officer must annex an affidavit of service to the summons; the provision is mandatory and applies equally to hearing notices. No affidavit of service appeared on the record, so the defendant could not be taken to have been properly served, and the trial judge ought not to have proceeded ex parte on counsel's statement from the bar. The absence of the affidavit was an error apparent on the face of the record justifying review. The Court of Appeal erred in finding effective service. The Court of Appeal's decision was set aside and the High Court order setting aside the ex parte judgment restored, with the suit to be retried de novo.

Facts

The appellant (plaintiff) sued the respondent (defendant) in the High Court for damages in negligence arising from a road traffic collision between their vehicles. After several adjournments for defective service, the trial judge directed that the defendant be served afresh in the presence of an L.C. or Police, who should swear an affidavit if service was refused. On 10 November 1998 the plaintiff's counsel informed the court that the defendant and his counsel, though served, were absent, and stated he held an affidavit of service. The judge recorded satisfaction that the advocates had been served and proceeded ex parte, later entering judgment for the plaintiff. The defendant's application to set aside the ex parte judgment was dismissed, but on a further application the High Court reviewed and vacated that dismissal, finding no affidavit of service on the record. The plaintiff appealed successfully to the Court of Appeal, which held service had been effected on the defendant's lawyer, prompting the present appeal.

Issues

Whether the defendant or his counsel was properly served with the hearing notice before the suit was heard ex parte.
Whether the absence of an affidavit of service from the record was an error apparent on the face of the record justifying a review of the order refusing to set aside the ex parte judgment.
Whether the trial judge's direction that service be effected in the presence of the L.C. or Police prescribed a specific mode of service.

Orders

Appeal allowed with costs here and in the Court of Appeal.
Costs in the High Court to abide the result of the trial.
The order and judgment of the Court of Appeal set aside.
The order of the High Court setting aside the ex parte judgment of Lugayizi, J restored.
The suit which gave rise to the appeal to be tried de novo by the High Court on a date notified to both parties.

Key headnotes

Civil Procedure — Service of Process — Affidavit of Service under Order 5 rule 17 CPR

Where summons (or a hearing notice) are served, Order 5 rule 17 of the Civil Procedure Rules mandatorily requires the serving officer to annex to the original an affidavit of service stating the time, manner and particulars of service, and the absence of such affidavit leads to the conclusion that the party was not properly served.

Civil Procedure — Review of Judgment — Error Apparent on the Face of the Record

An error justifying review under section 83 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules must be an evident error not requiring extraneous matter to demonstrate it, and the absence from the record of any affidavit or evidence of proper service on a defendant who was tried ex parte is such an error apparent on the face of the record.

Civil Procedure — Ex Parte Proceedings — Proof of Service Required Before Proceeding

A court should not proceed ex parte on the mere statement of counsel from the bar that the absent party has been served; the affidavit of service and returned documents must appear on or be produced to the record as proof that the party was duly served.

Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence

A first appellate court is under a duty to subject the whole of the evidence to a fresh and exhaustive re-evaluation and to draw its own conclusions, and failure to do so is a misdirection that an appellate court may correct.

Legislation cited (6)

Judicature Act s.35
Civil Procedure Act s.83
Civil Procedure Rules Order 42 rules 1 and 8
Civil Procedure Rules Order 9 rule 17
Civil Procedure Rules Order 9 rule 24
Civil Procedure Rules Order 5 rule 17

Cases cited (7)

D. Mbonigaba v Nkinzehlki (Civil Suit No. 687 of 1971)
Osuna Otwani vs. Bukenya Ssalongo, Civil No. 62 of 1974 (1976) HCB
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Selle v Associated Motor Boat Co Ltd [1968] EA 123
Bogere and Another v Uganda (Criminal Appeal No. 1 of 1997)
Pandya v Thomas [1947] AC 484
Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)

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.