Wakilii

Damani v Mbalirwa (Misc. Application No. 072 of 2002)

High Court · [2014] UGHCCD 95 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree under Order 9 r.24 CPR (now Order 9 r.27)
Decision
Application to set aside ex parte judgment dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to set aside ex parte judgment dismissed. The applicant failed to prove non-service and failed to prove his allegation that his signature on the acknowledgment of service was forged. Photocopies of travel documents were not properly proved under Evidence Act s.63 or s.64. Serious allegations of forgery require evidence, including expert evidence or cross-examination of the person who allegedly effected service. Merely raising allegations without proof is insufficient.

Outcome

Application to set aside ex parte judgment dismissed with costs

Facts

The respondent filed suit against the applicant. The applicant was served and filed a defence. On the hearing date (29 April 2002), the applicant and his counsel did not appear. An affidavit of service sworn by Paul Wamboka stated the applicant had been personally served and had signed acknowledgment on the hearing notice. The trial judge proceeded ex parte and delivered judgment finding the applicant had breached a loan agreement. The applicant later applied to set aside the judgment, claiming he was never served and was out of the country in Dubai on the hearing date. He attached photocopies of passport pages and boarding passes. He also alleged his signature on the acknowledgment was forged by opposing counsel. The respondent opposed the application, denying the allegations.

Issues

  1. Whether the applicant was properly served with the hearing notice dated 2 April 2002.
  2. Whether the ex parte judgment and decree should be set aside under Order 9 r.24 CPR.
  3. Whether the applicant sufficiently proved his allegations of non-service and forgery of his signature.

Orders

  • Application dismissed.
  • Costs awarded to the respondent/plaintiff.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Proof of Non-Service
An applicant seeking to set aside an ex parte judgment on the ground of non-service bears the burden of proving non-service; mere allegation without evidence is insufficient.
Evidence — Documentary Evidence — Proof of Copies
Photocopies of documents tendered as evidence must be proved in compliance with Evidence Act section 63 or shown to fall within the exceptions in section 64; failure to do so renders the copies inadmissible to support factual allegations.
Evidence — Burden and Standard of Proof — Serious Allegations
Where an applicant alleges forgery of his signature by opposing counsel, the allegation must be supported by evidence such as expert evidence or cross-examination of the person who allegedly effected service; serious allegations cannot be proved by mere assertion.
Civil Procedure — Setting Aside Ex Parte Judgments — Abuse of Process
Courts are alive to the practice of litigants claiming non-service without proof to take advantage of Order 9 r.27 CPR and avoid the consequences of adverse judgments; such claims must be scrutinised with care.

Legislation cited (9)

Cases cited (1)

  • REMCO Ltd v Mistry Jadva Parbat & Co Ltd (1975) EA 227

Full judgment

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

Damani v Mbalirwa (Misc. Application No. 072 of 2002) [2014] UGHCCD 95 (16 July 2014)
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.