Wakilii

Naiga v ASK Services Ltd (H.C.Miscellaneous Application No. 482 of 2020)

High Court · [2021] UGCOMMC 84 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment and for leave to file defence arising from Civil Suit No. 980 of 2011
Decision
Default judgment set aside; matter reinstated for hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that default judgment must be set aside where service of summons was not effective. Before substituted service can be ordered, the process server must use all due and reasonable diligence to find the defendant. The respondent failed to demonstrate earlier attempts to contact the applicant, and the affidavit of substituted service did not speak to such due diligence. Where a defendant disputes the debt claimed and presents evidence of payment, this raises a triable issue warranting leave to defend.

Outcome

Default judgment set aside; matter reinstated for hearing on the merits

Facts

The respondent obtained default judgment against the applicant in Civil Suit No. 980 of 2011 for a liquidated demand of UGX 120,000,000. The applicant learned of the judgment on 15 July 2020 when she received a call from the High Court about imminent execution. She contended that she was never served with court summons, that she had paid all debts owed as evidenced by an acknowledgement dated 20 December 2019, and that the respondent and its managing director knew her permanent address. The respondent had obtained substituted service by newspaper advertisement but failed to demonstrate prior attempts at personal service. The applicant applied to set aside the default judgment under Order 36 rule 11 and for leave to file a defence.

Issues

  1. Whether the application raises sufficient cause to set aside judgment/decree in Civil Suit No. 980 of 2019
  2. Whether the application raises triable issues for which the applicant should be granted leave to appear and defend Civil Suit No. 980 of 2018

Orders

  • Application allowed.
  • Default judgment entered in Civil Suit No. 980 of 2019 set aside and the matter reinstated.
  • Applicant ordered to file written statement of defence within fifteen days and serve the respondent as prescribed by law.
  • Costs provided for.

Rules and key headnotes

Civil Procedure — Service of Process — Substituted Service — Requirement of Due Diligence
Before substituted service can be effected under Order 5 rule 15 of the Civil Procedure Rules, the process server must first use all due and reasonable diligence to find the defendant or any person on whom service can be made, and must demonstrate such attempts in the affidavit of service.
Civil Procedure — Default Judgment — Setting Aside — Ineffective Service
A default judgment may be set aside under Order 36 rule 11 where the court is satisfied that service of summons was not effective, and where the respondent's affidavit of substituted service does not speak to earlier attempts to contact the defendant which would constitute the due diligence required.
Civil Procedure — Leave to Defend — Triable Issues — Test to be Applied
To obtain leave to defend after default judgment, the defendant must show that there is a triable issue or that for some other reason there ought to be a trial. Where the defendant disputes a liquidated demand and presents evidence of payment, this raises a triable issue warranting leave to defend, even if the case may appear weak at that stage.

Legislation cited (11)

Cases cited (2)

  • Omuchilo v Machiwa (1966) EA 229
  • Miter Investments Ltd v East African Portland Cement Co Ltd (Miscellaneous Application No. 0336 of 2012)

Full judgment

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

Naiga v ASK Services Ltd (H.C.Miscellaneous Application No. 482 of 2020) [2021] UGCommC 84 (3 February 2021)
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.