Wakilii

Mugona and Another v Muhereza (Miscellaneous Application 19 of 2023; Miscellaneous Application 317 of 2023)

High Court · [2024] UGHCCD 145 · 2024 Applications Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Applications to set aside ex-parte judgment and decree in Civil Suit No. 382 of 2018
Decision
Both applications to set aside ex-parte judgment dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Applications to set aside ex-parte judgment dismissed. Held that multiple documented attempts to serve the applicants constituted effective service. Applicants failed to demonstrate sufficient cause for non-appearance or failure to file defence. Conduct of applicants, who deliberately evaded service and ignored hearing notices, justified court's refusal to set aside ex-parte judgment. Applicants failed to raise a defence likely to succeed at trial.

Outcome

Both applications to set aside ex-parte judgment dismissed with costs to the respondent

Facts

In 2016, the respondent entered into a sale agreement with J & J Trading Company Limited and its directors, Mugona John and Rutenta Joselyne (spouses), for the sale of land at Block 243 Plot 1403, Kyadondo, for UGX 350,000,000. Civil Suit No. 382 of 2018 was filed and ex-parte judgment was entered on 22 January 2019. Multiple service attempts were made: the first applicant was served at his workplace in October 2018; the second applicant was served at Barclays Bank Kampala Road. A second process server contacted both applicants by telephone in December 2018, and they declined service. In February 2022, the court directed further service. A third process server served the second applicant at ABSA Bank Ntinda Branch and photographed her reading the hearing notice. The first applicant became aware of the suit in July 2022 after meeting the respondent. Both applicants then filed separate applications to set aside the ex-parte judgment, contending they were not properly served.

Issues

  1. Whether there is sufficient cause to set aside the ex-parte judgment and decree against the applicants.
  2. What remedies are the parties entitled to.

Orders

  • The two applications are dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Setting Aside Ex-Parte Judgment — Sufficient Cause — Service of Process
An applicant seeking to set aside an ex-parte judgment under Order 9 rule 27 of the Civil Procedure Rules must satisfy the court that there is sufficient cause for non-appearance, which relates to some inability or failure to take a particular step in time. Multiple documented attempts to effect service, including telephone contact and service at a defendant's workplace, constitute effective service where the defendant declines to acknowledge receipt but does not deny knowledge of the proceedings.
Setting Aside Ex-Parte Judgment — Defence on the Merits Required
In determining whether to set aside an ex-parte judgment, the court must assess whether the applicant has raised a defence likely to succeed at trial. It is not sufficient to merely state that a plausible defence exists. The defence must carry some degree of conviction and the court must form a provisional view of the probable outcome if judgment were to be set aside.
Setting Aside Ex-Parte Judgment — Conduct of Applicant
The conduct of an applicant is a relevant factor in determining whether to set aside an ex-parte judgment. Where applicants deliberately evade service, refuse to acknowledge receipt of court documents, and fail to file a defence despite being aware of the proceedings, such conduct constitutes a gamble or risk disregarding the interests of the administration of justice and justifies the court's refusal to set aside the ex-parte judgment.

Legislation cited (2)

Cases cited (5)

  • Abdul Gaffer bin Fathil v Chua Kwang Yong [1994] 3 SLR (R) 1056
  • Rosette Kizito v Administrator General and Others (Supreme Court Criminal Appeal No. 9 of 1986)
  • Twiga Chemical v Bamusedde [2005] 2 EA 325
  • Shah v Mbogo [1967] EA 116
  • Alpine Bulk Transport Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd's Rep 221

Full judgment

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

Mugona and Another v Muhereza (Miscellaneous Application 19 of 2023; Miscellaneous Application 317 of 2023) [2024] UGHCCD 145 (6 September 2024)
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.