Wakilii

Haq v Sing (Civil Appeal No. 28 of 1939)

East African Court of Appeal · [1940] EACA 35 · 1940 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ex parte judgment entered by Resident Magistrate, Nakuru
Decision
Judgment of the Resident Magistrate set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Where a defendant files a written statement of defence in court but fails to serve a duplicate on the plaintiff as required by O.VIII r.19, the court must not enter ex parte judgment based solely on the plaintiff's advocate's letter alleging non-service. Proof of non-delivery by affidavit or oral testimony is required. The better course is to adjourn and give the defendant an opportunity to serve the duplicate on the plaintiff.

Outcome

Judgment of the Resident Magistrate set aside

Facts

The respondent filed a suit for a liquidated sum on 18 May 1939. The appellant entered an appearance on 28 May and filed a written statement of defence with the court but allegedly failed to deliver a duplicate to the plaintiff as required by O.VIII r.19. On 13 September 1939, the plaintiff's advocate wrote to the court stating that no duplicate had been served. The suit came up for hearing on 19 September 1939. The defendant did not appear nor was he represented. The Resident Magistrate entered ex parte judgment for the plaintiff on the ground that defence is not properly filed unless both acts mandated by O.VIII r.19 are completed: delivery to court and delivery of duplicate to the other party.

Issues

  1. Whether a court may enter ex parte judgment against a defendant who filed a written statement of defence in court but failed to serve a duplicate on the plaintiff.
  2. Whether proof by affidavit or oral testimony is required to establish that a duplicate written statement of defence was not delivered to the plaintiff before ex parte judgment may be entered.

Orders

  • Appeal allowed.
  • Judgment of the Resident Magistrate set aside.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Written Statement of Defence — Mandatory Service Requirements
It is obligatory on a defendant to serve a copy of his written statement of defence on the plaintiff under O.VIII r.19.
Civil Procedure — Ex Parte Judgment — Proof Requirements for Non-Service
An allegation that a defendant has failed to serve a duplicate written statement of defence on the plaintiff must be proved by affidavit or oral testimony before ex parte judgment may be entered, particularly where a written statement of defence has been filed in court.
Civil Procedure — Practice — Failure to Serve Defence — Court's Discretion
Where a written statement of defence has been filed in court but a duplicate has not been delivered to the plaintiff, the better course is for the court to adjourn the consideration of the application for judgment and give the defendant a further opportunity of serving a copy on the plaintiff.

Legislation cited (4)

  • Civil Procedure Rules 1927 O.VIII r.19
  • Civil Procedure Rules 1927 O.IX r.3
  • Civil Procedure Rules 1927 O.IX r.4
  • Civil Procedure Rules 1927 O.IX r.9(2)

Full judgment

↓ Download PDF

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

Haq v Sing (Civil Appeal No. 28 of 1939) [1940] EACA 35 (1 January 1940)
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.