Wakilii

Luciano v Venice (U) Limited (Miscellaneous Application 123 of 1992)

High Court · [1992] UGHC 59 · 1992 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 and to stay or set aside execution
Decision
Ex parte judgment set aside; applicant granted leave to defend the suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the service of summons was defective because the affidavit of service did not clearly establish that the plaint was attached to the summons, and there was evidence suggesting non-service. The applicant raised triable issues, including a partial payment claim, which constituted a plausible defence. The court exercised its discretion under Order 33 Rule 11 to set aside the ex parte judgment and decree, allowing the applicant to defend the suit.

Outcome

Ex parte judgment set aside; applicant granted leave to defend the suit

Facts

The respondent instituted Civil Suit No. 600 of 1992 seeking to recover Shs. 20,000,000/= as the value of 1000 pairs of shoes sold to the applicant on credit on 29 June 1992. The suit was brought by way of summary procedure under Order 33 of the Civil Procedure Rules. The respondent claimed that the applicant was served with summons and plaint on 13 October 1992 but defaulted in seeking leave to defend. Judgment was entered ex parte on 29 October 1992. The applicant then brought this application under Order 33 Rule 11 seeking to set aside the judgment and decree, arguing that service was defective and that he had a defence. The applicant claimed to have paid Shs. 16,400,000/= on 16 September 1992 to Claudio Cardini, a shareholder in the respondent company.

Issues

  1. Whether the service of summons in the summary suit was effective.
  2. Whether the applicant has a plausible defence to the suit and should be allowed to defend it.

Orders

  • Application allowed.
  • Judgment and decree passed against the applicant set aside.
  • Attachment set aside.
  • Applicant ordered to enter appearance and file written statement of defence within seven (7) days.

Rules and key headnotes

Civil Procedure — Summary Procedure — Setting Aside Ex Parte Judgment — Defective Service
Under Order 33 Rule 11 of the Civil Procedure Rules, a court has discretionary power to set aside an ex parte decree if satisfied that service of summons was not effective, or for some other good cause. Where the affidavit of service does not clearly establish that the plaint was attached to the summons and there is evidence suggesting non-service, the service is defective and the ex parte judgment may be set aside.
Civil Procedure — Summary Procedure — Leave to Defend — Triable Issues
A court will set aside an ex parte judgment and allow a defendant to defend a summary suit where the applicant raises triable issues and demonstrates a plausible defence. The existence of a disputed partial payment claim, including questions of whether payment was made to the proper party, constitutes triable issues warranting a full trial on the merits.

Legislation cited (4)

Full judgment

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Luciano v Venice (U) Limited (Miscellaneous Application 123 of 1992) [1992] UGHC 59 (26 November 1992)
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.