Wakilii

Apio v Sekaluvu Kalongo (Miscellaneous Civil Application No. 1663 of 2021)

High Court · [2022] UGHCLD 34 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment in Civil Suit No. 213 of 2008
Decision
Application to set aside exparte judgment dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application to set aside an exparte judgment in a land matter filed 13 years after the original suit and two years after judgment. The court held that effective service had been made through the applicant's counsel who consented to reinstatement of the suit in 2016 and represented her at scheduling in 2017, and that there was no proof counsel had withdrawn or lost contact with the applicant before judgment was delivered in 2019. The applicant had no locus to file the application as she had disposed of the land in 2007 and was not in physical occupation.

Outcome

Application to set aside exparte judgment dismissed with costs

Facts

In 2008, Civil Suit No. 213 was filed concerning land comprised in plot 38 block 76, Kyadondo. The suit was initially dismissed in March 2011 under Order 9 rule 22 CPR. In November 2016, a consent was entered between counsel for the plaintiff and Shuekgerera, Kalera & Co. Advocates representing the applicant as first defendant, agreeing to proceed with hearing. On 9 May 2017, both counsel and the first defendant attended court for scheduling. Judgment was delivered exparte on 5 July 2019. The respondent was registered on the title on 2 August 2021. On 17 September 2021, the applicant filed this application seeking to set aside the judgment, claiming she was not duly served with hearing notices and that her former lawyer failed to inform her of proceedings. The applicant admitted she had sold the land to one Beatrice Adongo in 2007 who took possession and made developments.

Issues

  1. Whether the application meets the conditions for setting aside an exparte judgment under Order 9 rule 27 of the Civil Procedure Rules.
  2. Whether the court summons were duly served upon the applicant.
  3. Whether the applicant was prevented by sufficient cause from appearing when the suit was called for hearing.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Judgments — Effective Service Through Counsel
Where counsel consented to reinstatement of a suit and represented a party at scheduling, and there is no proof that counsel withdrew instructions or lost contact with the client before judgment was delivered, effective service is established and an application to set aside the exparte judgment on grounds of lack of service will fail.
Civil Procedure — Setting Aside Exparte Judgments — Order 9 Rule 27 CPR — Requirements
Under Order 9 rule 27 of the Civil Procedure Rules, an applicant seeking to set aside an exparte judgment must prove that court summons were not duly served upon them or that they were prevented by sufficient cause from appearing when the suit was called for hearing.
Civil Procedure — Service of Process — Effective Service — Definition
Effective service means having the desired effect of making the defendant aware of the summons. A court handling an application for setting aside a decree has a duty to investigate and make a finding as to whether summons was duly served, and it is not enough that there is an affidavit of service on record.
Land Law — Locus Standi — Disposed Property — Physical Occupation
A party who has disposed of land and admits not being in physical occupation from the time of disposal, and who has lost legal possession after change of proprietorship by court order, has no locus standi to file an application challenging that court order.

Legislation cited (7)

Cases cited (2)

  • Geoffrey Gatete and Angel Mwid Nakigonga v William Kgobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Nicholas Roussous v Qulamu Hussein Habib Virani and Others (Supreme Court Civil Appeal No. 9 of 1993)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Apio_v_Sekaluvu_Kalongo_(Miscellaneous_Civil_Application_No._1663_of_2021)_[2022]_UGHCLD_34_(14_March_2022)
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.