Wakilii

Aseu v Emitu (Miscellaneous Application 206 of 2023)

High Court · [2024] UGHC 187 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment arising from Civil Suit No. 04 of 2023
Decision
Application dismissed; default judgment in Civil Suit No. 04 of 2023 stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the applicant was properly served with summons by affixing under Order 5 Rule 15 of the Civil Procedure Rules. The process server exercised due and reasonable diligence by calling the applicant on his known phone number, visiting his workplace, and attending his home where he was informed the applicant had just left. The applicant's conduct indicated evasion of service. The application to set aside the default judgment was dismissed with costs.

Outcome

Application dismissed; default judgment in Civil Suit No. 04 of 2023 stands

Facts

The respondent filed Civil Suit No. 04 of 2023 against the applicant alleging defamation. Court summons was issued on 2 February 2023. The court process server attempted to contact the applicant by phone (number 0771271525), visited his workplace (San Laram Soroti office), and proceeded to his home where he was informed by the applicant's daughter that the applicant had just stepped out. Unable to effect personal service after these attempts, the process server affixed the summons on the applicant's door on 2 February 2023. The applicant failed to file a written statement of defence within the prescribed time. Default judgment was entered on 13 March 2023 and full judgment delivered on 21 July 2023. The applicant first learned of the proceedings on 4 December 2023 when served with a taxation hearing notice. He brought this application seeking to set aside the default judgment, claiming he was never properly served.

Issues

  1. Whether the applicant was served with the summons to file a defence in respect to Civil Suit No. 04 of 2023?
  2. What are the remedies available to the parties?

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Service of Process — Due and Reasonable Diligence — Service by Affixing
For service by affixing summons on a door under Order 5 Rule 15 of the Civil Procedure Rules to be valid, the process server must demonstrate that all due and reasonable diligence was used to effect personal service, including making proper inquiries as to the defendant's whereabouts and attempting service at times and places where the defendant could reasonably be expected to be found.
Service of Process — Multiple Attempts — Standard of Diligence
Due and reasonable diligence in attempting personal service is satisfied where a process server contacts the defendant by telephone, visits the defendant's known workplace, and attends the defendant's residence, making inquiries at each location, before resorting to substituted service by affixing.
Service of Process — Evasion of Service — False Information
Where a defendant gives false information about his whereabouts to a process server and the facts demonstrate an attempt to evade service, the court will find that the process server acted with due diligence and that substituted service by affixing was properly effected.
Setting Aside Default Judgment — Burden of Proof
An applicant seeking to set aside a default judgment under Order 9 Rule 12 of the Civil Procedure Rules bears the burden of proving that service was not properly effected and that sufficient cause exists to warrant setting aside the judgment.

Legislation cited (7)

Cases cited (6)

  • Rwabuganda Godfrey v Bitamissi Namudu (Civil Appeal No. 23 of 2009)
  • Nzioki s/o Mutweita v Akamba Handicraft Industries Ltd (1954) 27 KLR
  • Bemanyisa v Bisere (Civil Appeal No. 22 of 2013)
  • Eliakanah Omuchi v Agub Machwa [1966] EA 229
  • Chakubhai v Patel (1948) 6 ULR 211
  • Cohen & An Vs Nursing Doss Audly Indian Decisions New Series (1914) Calcutta Vol.9 at page 579

Full judgment

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Aseu v Emitu (Miscellaneous Application 206 of 2023) [2024] UGHC 187 (9 April 2024)
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.