Wakilii

Mugenzi Pascal & 2 Ors v Teopista Mugenzi (Miscellaneous Application No. 918 of 2010)

High Court · [2011] UGHC 158 · 2011 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
Decision
Ex parte judgment set aside and matter remitted for hearing inter partes

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that where a defendant has filed a written statement of defence but was never notified of the hearing date, the defendant was not duly served within the meaning of Order 9 rule 27 of the Civil Procedure Rules. The court found that the applicant demonstrated sufficient cause for non-appearance and had a good defence on the face of the pleadings. The ex parte judgment and decree in Civil Suit No. 166 of 1992 were set aside, and the suit was fixed for hearing inter partes.

Outcome

Ex parte judgment set aside and matter remitted for hearing inter partes

Facts

The 1st applicant was served with summons in Civil Suit No. 166 of 1992 and instructed M/S Matovu Kamugunda & Co Advocates, who filed a written statement of defence on his behalf. The suit proceeded ex parte without his knowledge, and judgment and decree were entered against all defendants on 22 July 2003. In August 2009, the applicant was served with notice to show cause why execution should not issue. He then discovered that judgment had been entered against him. His lawyers initially applied to set aside the ex parte proceedings but withdrew the application after judicial advice to settle out of court. Settlement efforts failed. On 7 December 2010, the applicant was again served with notice to show cause why execution should not issue. He then filed the present application to set aside the ex parte judgment and decree. The respondent did not file any affidavit in reply despite being given time to do so.

Issues

  1. Whether the applicants were duly served with notice of the hearing date in Civil Suit No. 166 of 1992.
  2. Whether the applicants have a good defence to Civil Suit No. 166 of 1992.
  3. Whether the ex parte judgment and decree should be set aside and the suit fixed for hearing inter partes.

Orders

  • The ex parte proceedings and judgment and decree in Civil Suit No. 166 of 1992 are set aside.
  • The said Civil Suit No. 166 of 1992 is fixed for hearing inter partes.
  • Costs of this application are in the cause.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Order 9 rule 27 — Sufficient Cause for Non-Appearance
Under Order 9 rule 27 of the Civil Procedure Rules, a court may set aside an ex parte decree if satisfied that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called for hearing. Where a defendant has filed a written statement of defence but was never notified of the hearing date, the defendant has not been duly served and has shown sufficient cause for non-appearance.
Civil Procedure — Ex Parte Proceedings — Unchallenged Affidavit Evidence — Presumption of Admission
Where a respondent to an application does not file an affidavit in reply, the facts as adduced in the applicant's affidavit which are neither denied nor rebutted are presumed to be admitted. A party who fails to file a defence is deemed to have admitted the allegations.
Civil Procedure — Setting Aside Ex Parte Judgments — Good Defence — Prima Facie Test
To succeed in an application to set aside an ex parte judgment, an applicant must demonstrate a good defence to the suit. The test is whether, on the face of the pleadings and without going to the intrinsic evidence or merits of the case, there appears to be a good defence.

Legislation cited (4)

Cases cited (7)

Full judgment

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Mugenzi Pascal & 2 Ors v Teopista Mugenzi (Miscellaneous Application No. 918 of 2010) [2011] UGHC 158 (3 November 2011)
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.