Wakilii

Bamanye Fazil v Nankunda Rose (HCT-00-CV-CA-0007-2009) (HCT-00-CV-CA-0007-2009)

High Court · [2009] UGHC 136 · 2009 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from Chief Magistrate's Court ruling dismissing application to set aside ex-parte judgment on counterclaim
Decision
Ex-parte judgment set aside as a nullity; matter remitted to Chief Magistrate's Court for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that a first appeal from a Magistrate's ruling refusing to set aside an ex-parte judgment does not require leave under section 220(1) of the Magistrates Courts Act and Order 44 rule 1(c) of the Civil Procedure Rules. Where a defendant serving a counterclaim fails to properly serve a copy on the plaintiff, and instead leaves it on the court file expecting the plaintiff to collect it, the resultant ex-parte judgment is a nullity. A party is entitled ex debito justitiae to have a nullity set aside.

Outcome

Ex-parte judgment set aside as a nullity; matter remitted to Chief Magistrate's Court for hearing on merits

Facts

The appellant was the plaintiff in a civil suit in the Chief Magistrate's Court. The respondent filed a Written Statement of Defence containing a counterclaim. The respondent did not serve a copy of the counterclaim on the appellant but instead left it on the court file. The appellant did not file a reply to the counterclaim. An ex-parte judgment was entered against the appellant on the counterclaim on 22 September 2008. The appellant applied to set aside the ex-parte judgment, arguing that he had not been served. No affidavit of service was on the court record. The Chief Magistrate Grade I refused the application on 9 February 2009, reasoning that the appellant could have accessed the counterclaim from the court file and had appeared in court on two occasions. The appellant appealed to the High Court.

Issues

  1. Whether leave to appeal was required for a first appeal from a Magistrate's ruling refusing to set aside an ex-parte judgment.
  2. Whether the ex-parte judgment entered against the appellant on the counterclaim should be set aside where the appellant was not served with the Written Statement of Defence and counterclaim.

Orders

  • Appeal allowed.
  • Order of the Chief Magistrate Grade I dated 9 February 2009 dismissing the application set aside.
  • Ex-parte judgment entered in Civil Suit No. 971 of 2008 set aside.
  • Civil Suit No. 971 of 2008 to be heard and determined on its merits.
  • File remitted to Chief Magistrate's Court of Mengo to be placed before the same Magistrate or another Magistrate Grade I.
  • Costs of the appeal and in the lower court awarded to the appellant.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — First Appeal from Magistrate's Court
A first appeal from a Magistrate's ruling refusing to set aside an ex-parte judgment does not require leave of court under section 220(1) of the Magistrates Courts Act and Order 44 rule 1(c) of the Civil Procedure Rules.
Civil Procedure — Service of Process — Counterclaim — Obligation to Serve
It is obligatory on the part of a defendant to serve a copy of a Written Statement of Defence on the plaintiff, particularly where the Written Statement of Defence contains a counterclaim, which is legally a suit in its own right.
Civil Procedure — Service of Process — Improper Service — Effect
Service of a counterclaim by leaving a copy on the court file for the plaintiff to collect is not proper service in law and amounts to no service at all. An ex-parte judgment entered following such improper service is a nullity.
Civil Procedure — Nullity — Setting Aside — Ex Debito Justitiae
Where an order or judgment is properly described as a nullity, the person affected by it is entitled ex debito justitiae to have it set aside. Failure to serve process where service is required goes to the root of proper procedure and renders the resulting order a nullity.

Legislation cited (3)

Cases cited (2)

  • Nicholas Roussos v G. H. Virani & Another (HCCS No. 360 of 1982)
  • [1943] 1 All ER 108

Full judgment

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

Bamanye Fazil v Nankunda Rose (HCT-00-CV-CA-0007-2009) (HCT-00-CV-CA-0007-2009) [2009] UGHC 136 (11 December 2009)
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.