Wakilii

Kasule & Anor v Kwong Fat Yuen Hong Ltd (HCT-00-CC-MA 66 of 2013)

High Court · [2013] UGCOMMC 95 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree arising from Civil Suit No. 177 of 2012
Decision
Ex parte judgment set aside; applicants granted leave to file defence; first applicant released from civil prison

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court set aside an ex parte judgment and decree on the ground that service of summons was ineffective. Service effected through a person (Nangiga) whom the applicants denied knowing and authorising to receive service was not proper service under Order 5 rule 10 of the Civil Procedure Rules. The court held that the applicants were entitled to defend the suit on its merits having denied indebtedness to the respondent.

Outcome

Ex parte judgment set aside; applicants granted leave to file defence; first applicant released from civil prison

Facts

The respondent sued the applicants in Civil Suit No. 177 of 2012 for recovery of USD 425,000 arising from alleged breach of contract. The applicants did not file a defence and an ex parte judgment and decree were entered against them. In execution of the decree, the first applicant was arrested and committed to civil prison on 19 December 2012. The applicants claimed that summons was never properly served on them. According to the affidavit of service, the process server telephoned the first applicant who allegedly instructed one Nangiga to receive the summons on the applicants' behalf. The first applicant denied knowing Nangiga and denied authorising her to accept service. The applicants contended they were not indebted to the respondent as alleged and sought to have the judgment set aside to enable them defend the suit on its merits.

Issues

  1. Whether there are sufficient grounds for setting aside the ex parte judgment and decree obtained in H.C.C.S No. 177 of 2012.
  2. Whether the first applicant should be released from civil prison.

Orders

  • The default judgment and decree in Civil Suit No. 177 of 2012 is set aside.
  • The execution of the decree is set aside.
  • The first applicant is to be released from civil prison.
  • The defendants are ordered to file their defence within fifteen days from the date of this ruling.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Civil Procedure — Service of Summons — Effective Service — Requirements
For service of summons to be effective under Order 5 rule 10 of the Civil Procedure Rules, it must be effected on the defendant in person or on an agent empowered to accept service. Effective service means service having the intended or desired effect, which is to make the defendant aware of the suit and enable them to respond to it. Service through a person whom the defendant denies knowing and denies authorising to receive service is not effective service.
Civil Procedure — Ex Parte Judgments — Setting Aside — Court's Discretion
Order 9 rule 12 of the Civil Procedure Rules gives the High Court unfettered discretion to set aside or vary an ex parte judgment. An ex parte judgment obtained by default of defence is by its nature not a judgment on the merits and is only entered because the party concerned failed to comply with certain requirements of the law. The court may dissolve such judgment which is not pronounced on the merits or by consent but entered specifically on failure to follow procedural requirements of the law.
Civil Procedure — Ex Parte Judgments — Service of Summons — Burden of Proof
The burden is on the plaintiff/respondent to show that a person who allegedly received service of summons on behalf of the defendant was empowered to accept service. Where the defendant denies knowledge of the alleged agent and denies authorising them to receive service, and the alleged agent does not swear an affidavit to support or deny the claim, the court may find on a balance of probability that service was not effective.
Evidence — Affidavits — Hearsay — Inadmissibility
Under Order 19 rule 3(1) of the Civil Procedure Rules, affidavits must be confined to statements of fact and belief. The rule on hearsay evidence in court equally applies to affidavits. When a statement is made to a witness by a person who is not called as a witness, such evidence is inadmissible particularly where the object of the evidence is to establish the truth of what is contained in the statement. Advocates should not swear affidavits on behalf of their clients on contentious matters which are usually based on facts within the knowledge of their clients.

Legislation cited (9)

Cases cited (14)

  • Remco Ltd v Mistry Javda Parbat & Co Ltd and Others [2002] 1 EA 233
  • Frederick Sentamu v Uganda Commercial Bank and Another [1983] HCB 59
  • Acali Manzi v Nile Bank (1994) KALR 123
  • David Ssesanga v Greenland Bank Ltd (In Liquidation) (High Court Miscellaneous Application No. 406 of 2010)
  • Mbogo and Another v Shah [1968] EA 93
  • Nicholas Roussos v Gulam Hussein Habib Virani and Another (Supreme Court Civil Appeal No. 9 of 1993)
  • Attorney General and Another v James Mark Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Henry Kawalya v J Kinyakwanzi [1975] HCB 372
  • Kimani v McConnell (1966) EA 547
  • Patel v EA Cargo Handling Services (1974) EA
  • Geoffrey Gatete and Angela Nakigonya v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Joel Kato and Another v Nuulu Nalwooga (Supreme Court Civil Miscellaneous Application No. 4 of 2012)
  • Nsubuga Jonah v The Electoral Commission and Another (High Court Election Petition No. 3 of 2011)
  • DFCU Leasing Company Ltd v Nasolo Faridah (Miscellaneous Application No. 74 of 2007)

Full judgment

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

Kasule & Anor v Kwong Fat Yuen Hong Ltd (HCT-00-CC-MA 66 of 2013) [2013] UGCommC 95 (22 May 2013)
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.