Wakilii

Mubiru v Kasimbi (Arising Out of Civil Suit No. 0399 of 2015) 2017 UGHCLD 14 (2017-02-15)

High Court · [2017] UGHCLD 14 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 arising from Civil Suit No. 0399 of 2015
Decision
Application to set aside ex parte judgment dismissed; ex parte judgment and decree remain in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that substituted service was effective where the process server attempted personal service but the defendant avoided service by phone and court properly ordered advertisement. To set aside an ex parte judgment, a defendant must show both reasonable excuse for non-appearance and merit in the defence. The application was dismissed as the suit land had been sold to a third party after decree execution, rendering any order to set aside the judgment futile and incapable of enforcement.

Outcome

Application to set aside ex parte judgment dismissed; ex parte judgment and decree remain in force

Facts

The Applicant sought to set aside an ex parte judgment and decree entered in HCCS No. 054 of 2014, claiming he was never served with summons. The Respondent had filed the underlying suit and attempted personal service through a process server who contacted the Applicant by phone. The Applicant promised to receive the summons but subsequently avoided service, prompting the Respondent to obtain substituted service by newspaper advertisement. After the defence period expired, court entered default judgment and the Respondent proved her case ex parte. A decree was extracted and executed, resulting in a special certificate of title being issued to the Respondent by the Commissioner for Land Registration in July 2015. The Respondent sold the suit land to a third party in July 2016 under a sale agreement. The Applicant filed the setting aside application in March 2015, but the Respondent was not notified until October 2016, after the land sale.

Issues

  1. Whether there was effective service of summons on the Applicant
  2. Whether the Applicant has shown sufficient cause to warrant setting aside of the ex parte judgment
  3. What are the remedies available to the parties

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Service of Process — Substituted Service — When Valid
Substituted service ordered after due diligence in attempting personal service is effective service under Order 5 rule 18(2) of the Civil Procedure Rules and is as effectual as if it had been made on the defendant personally.
Setting Aside Ex Parte Judgments — Grounds Required
To set aside an ex parte judgment under Order 9 rules 12 and 27 of the Civil Procedure Rules, the applicant must satisfy the court both that the summons was not duly served or that he was prevented by sufficient cause from appearing, and that there is merit in the defence case.
Futility of Orders — Court Will Not Act in Vain
A court will not issue orders where the subject matter has been disposed of to a third party and the order would be incapable of enforcement without occasioning undue hardship to third parties, as court orders should not be issued in vain.

Legislation cited (5)

Cases cited (4)

  • S. Kyobe Senyange v Naks Ltd (1980) HCB 31
  • Kampala Capital City Authority v Ddamulira Musa & 6 Others (HCCS No. 568 of 2014)
  • Housing Finance Bank Ltd & Another v Edward Musisi (Court of Appeal Civil Appeal No. 158 of 2010)
  • Wildlife Lodges Ltd v County Council of Narok & Another [2005] 2 EA 344

Full judgment

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

Mubiru v Kasimbi (Arising Out of Civil Suit No. 0399 of 2015) 2017 UGHCLD 14 (2017-02-15)
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.