Wakilii

Muhwezi v Tirwakunda and 34 Others [2024] UGHC 1236

High Court · 2024 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 in underlying civil suit for loan recovery
Decision
Ex parte judgment and decree in Civil Suit No. 0038 of 2022 remain in force; execution may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service of summons upon the applicant's wife at the known family residence was effective service under Order 5 Rule 13 of the Civil Procedure Rules, as the wife was an adult member of the family in charge of mortgaged property and competent to receive service. The applicant failed to demonstrate he had a defence on the merits, offering only general denials without annexing a draft written statement of defence. Application to set aside ex parte judgment dismissed.

Outcome

Ex parte judgment and decree in Civil Suit No. 0038 of 2022 remain in force; execution may proceed

Facts

The applicant borrowed UGX 64,826,100 from the respondents (a community-based traders association) on 14 April 2019, mortgaging family property in Muhanga Town Council as security. His wife was signatory to the loan application. Civil Suit No. 0038 of 2022 was filed for loan recovery. Summons were served on the applicant's wife at the family residence in Muhanga on 26 August 2022. The applicant did not appear and ex parte judgment was entered on 2 May 2023. The applicant then applied to set aside the judgment, alleging he had relocated to Kampala in 2019 after separating from his wife and was not effectively served.

Issues

  1. Whether the applicant was effectively served with summons to file defence in the main suit.
  2. Whether the applicant demonstrated sufficient cause for his non-appearance when the suit was called on for hearing.
  3. Whether the applicant has a defence on the merits to justify setting aside the ex parte judgment.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Service of Process — Substituted Service — Service on Adult Family Member
Where a defendant cannot be found, service may be made on any adult member of the family in charge of the property under Order 5 Rule 13 of the Civil Procedure Rules. Service on a defendant's wife at the known family residence, where she is signatory to a loan secured by mortgaged property at that address, constitutes effective service.
Effective Service — Test and Circumstances
Effective service must produce the desired effect of making the defendant aware of the suit. In determining whether service was effective, the court examines the process server's conduct, the conduct of the adversary, the circumstances surrounding service, and the availability of the defendant.
Setting Aside Ex Parte Judgment — Requirements
An applicant seeking to set aside an ex parte judgment must satisfy the court that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called for hearing. The applicant must also demonstrate that he has a defence on the merits or that there is an issue in dispute which ought to be tried. General statements of denial without a draft written statement of defence are insufficient.
Stay of Execution — Late Applications
A losing party who only springs into action when the successful party sets in motion the process of realizing the fruits of judgment cannot be allowed to use the court to frustrate or delay the execution process. There must be an end to litigation.

Legislation cited (9)

Cases cited (6)

  • Departed Asians Property Custodian Board v Bukenya (Supreme Court Civil Appeal No. 18 of 1991)
  • Ssesanga v Greenland Bank Ltd (in liquidation) (Miscellaneous Application No. 0406 of 2010)
  • Semuyaba Iga and Co. Advocates and Another v Attorney General of the Republic of Sudan and 2 Others (High Court Miscellaneous Application No. 0004 of 2022)
  • Tandijhera v Corporation Energo Project [1988-90] HCB 15
  • Gatete and Another v Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Kananura v Kaijuka (High Court Reference No. 5 of 2016)

Full judgment

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

Muhwezi v Tirwakunda and 34 Others 2024 UGHC 1236 (28 November 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.