Kanyabwera v Tumwebaze (Civil Appeal No. 6 of 2004)

Supreme Court · [2005] UGSC 33 · 2005 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal decision that had reversed a High Court order granting review and setting aside an ex parte judgment.

Decision

Appeal allowed; Court of Appeal judgment set aside; High Court order setting aside the ex parte judgment restored; suit remitted for trial de novo.

The full judgment

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Treatment recorded in citing cases followed in 1 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 held that no affidavit of service appeared on the record and there was no evidence that the defendant or his counsel was properly served with the hearing notice before the suit was heard ex parte. The affidavit-of-service requirement under Order 5 rule 17 CPR is mandatory and applies equally to hearing notices; its absence from the record was an error apparent on the face of the record justifying review under section 83 of the Civil Procedure Act and Order 42 CPR. The Court of Appeal had failed to re-evaluate the evidence as first appellate court. The appeal was allowed, the Court of Appeal judgment set aside, the High Court order setting aside the ex parte judgment restored, and the suit remitted to be tried de novo.

Facts

The plaintiff sued the defendant in the High Court for damages in negligence arising from a road traffic accident in which the parties' vehicles were involved. Hearing was repeatedly adjourned because the defendant was not served. On 23.3.1998 the trial judge (Lugayizi, J.) found the affidavit of service unsatisfactory and ordered fresh service, suggesting attendance with LCs or Police. On 10.11.1998 the plaintiff's counsel stated that the defendant's advocates had been served and that he held an affidavit of service and an endorsed copy of the summons; the trial judge, being satisfied, proceeded ex parte and on 27.10.2001 entered judgment for the plaintiff. The defendant's application to set aside the ex parte judgment was dismissed; on a subsequent application the same judge (Okumu-Wengi, J.) granted review and vacated that order, finding no affidavit or evidence of service on the record. The plaintiff appealed to the Court of Appeal, which reversed the review and held that service had been effected on the defendant's counsel.

Issues

Whether the defendant or his counsel was duly served with the hearing notice before the suit was heard ex parte.
Whether the absence of an affidavit of service from the court record constituted an error apparent on the face of the record justifying review.
Whether the High Court's order reviewing and setting aside the ex parte judgment should stand.
Whether the Court of Appeal, as first appellate court, failed in its duty to re-evaluate the evidence on 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 judgment and order of the Court of Appeal set aside.
The order of the High Court (Okumu-Wengi, J.) setting aside the ex parte judgment of Lugayizi, J. restored.
The suit to be tried de novo, inter partes, by the High Court on a date notified to both parties.

Key headnotes

Civil Procedure — Service of Process — Affidavit of Service — Mandatory Requirement

Under Order 5 rule 17 of the Civil Procedure Rules the serving officer must annex to the summons an affidavit of service stating the time, manner and person served; the requirement is mandatory and applies equally to the service of hearing notices.

Civil Procedure — Ex Parte Hearing — Proof of Service

A court may proceed ex parte under Order 9 rule 17 only where it is satisfied that the defendant was duly served; a statement from the bar unsupported by an affidavit of service on the record is insufficient proof of service.

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

Where a suit has been heard ex parte, the absence from the record of an affidavit of service is an error apparent on the face of the record justifying a review of the judgment under section 83 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules.

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

A first appellate court is bound to subject the evidence to fresh and exhaustive scrutiny and reach its own conclusions of fact and law; where it fails to do so, a second appellate court is entitled to re-evaluate the evidence itself.

Civil Procedure — Ex Parte Hearing — Adjournments and Further Notice

Where a court proceeds ex parte because the defendant is absent on the hearing date, it should not thereafter adjourn the hearing from day to day without further notice to the defendant as though he were barred from the proceedings; doing so may render the proceedings a mistrial.

Legislation cited (7)

Civil Procedure Rules O.9 r.17
Civil Procedure Rules O.9 r.18
Civil Procedure Rules O.9 r.24
Civil Procedure Rules O.5 r.17
Civil Procedure Rules O.42 rr.1 & 8
Judicature Act s.35
Civil Procedure Act s.83

Cases cited (7)

D. Mbonigaba vs. Nkinzehiki, Civil Suit No. 687 of 1971
Osana Otwani vs. Bakenya Ssalongo, Civil No. 62 of 1974 [1974] 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 Vs. Thomas (1947) AC 484 (H.L.)
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.