Wakilii

Nakiranda v Musoke Mbidde & Ors (Miscellaneous Application No. 548 of 2013)

High Court · [2013] UGHCCD 121 · 2013 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 High Court Civil Suit No. 446 of 2013
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 High Court dismissed an application to set aside an ex parte judgment and decree. The court held that the applicant was duly served through multiple means including personal service, service on advocates, and substituted service through newspapers. The applicant deliberately ignored court processes including injunction orders, came to court with unclean hands, and gave contradictory evidence about her interest in the suit property. Having failed to establish sufficient cause for non-appearance and lacking clean hands, the application was dismissed with costs.

Outcome

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

Facts

The applicant was the registered proprietor of Block 105 Plot 1736 land at Seeta, Mukono District. The first respondent, former owner of the parent plot, filed Civil Suit No. 446 of 2007 seeking cancellation of the applicant's certificate of title, eviction, and permanent injunction. The suit proceeded ex parte due to non-appearance of defendants and judgment was entered for the plaintiff in 2013. The applicant then filed this application seeking to set aside the ex parte judgment, claiming she was never served with summons and only learned of the suit when served with the judgment on 13 June 2013. Court records showed the applicant was served through her advocates M/s Higenyi, Musambwa & Co. Advocates who filed defence on 4 October 2007, later through new counsel Mr. Musa Kabega, personally at the suit premises on 3 March 2009, and twice by substituted service through newspapers. The applicant ignored interim and temporary injunction orders and continued construction on the disputed land. The applicant swore contradictory affidavits stating she both owned the land and had sold it to one Musinguzi David, claiming to be only a caretaker.

Issues

  1. Whether the applicant was duly served with summons and hearing notices in the underlying civil suit.
  2. Whether the applicant has demonstrated sufficient cause to have the ex parte judgment and decree set aside.
  3. Whether the applicant has locus standi to bring the application.
  4. Whether the applicant has a good defence to the main suit with a likelihood of success.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Decree — Requirements under Order 9 r.27 CPR
To set aside an ex parte decree under Order 9 r.27 CPR, a defendant must satisfy the court that the summons was not duly served, or that he or she was prevented by sufficient cause from appearing when the suit was called for hearing, and must demonstrate that there is merit in the defence to the case.
Civil Procedure — Service of Process — Substituted Service — Validity and Effect
Where service cannot be effected in the ordinary way, substituted service may be resorted to and it shall be as good as service in the ordinary way. Substituted service does not discriminate on the basis of the social status of parties intended to be served, and a party's illiteracy or claim not to read newspapers does not invalidate substituted service through newspaper publication.
Civil Procedure — Service on Advocate — Effect under Order 2 r.4 CPR
Under Order 2 r.4 CPR, service on an advocate of record is presumed to be duly communicated and made known to the party whom the advocate represents. Where successive advocates appear on record for a party, the court may infer that those advocates were properly instructed and service upon them constitutes valid service on the party.
Civil Procedure — Clean Hands Doctrine — Application to Party in Contempt of Court Orders
A party who defies court orders cannot at the same time seek the court's protection. Where a party has been in contempt of court orders, including injunction orders, that party comes to court with unclean hands and is not entitled to equitable relief.
Land & Property — Locus Standi — Registered Proprietor versus Subsequent Transferee
Under Section 59 of the Registration of Titles Act, a registered proprietor has locus standi to bring proceedings as the certificate of title is conclusive evidence of ownership. Where a registered proprietor claims to have sold the property and to be merely a caretaker, contradictory depositions on ownership affect both locus standi and the credibility of the applicant's defence.
Civil Procedure — Contradictory Evidence — Effect on Credibility and Reliability
Where a party gives contradictory and inconsistent depositions in affidavits which are not satisfactorily explained, such evidence is rendered unreliable and will be rejected by the court.
Civil Procedure — Abuse of Process — Court's Duty to Curtail
Under Sections 98 of the Civil Procedure Act and 17(2) of the Judicature Act, the court is enjoined to curtail abuse of court process. Where an application to set aside an ex parte decree is based on deliberate falsehoods and is a continuation of abuse of process, the court will dismiss the application.

Legislation cited (10)

Cases cited (12)

  • Barclays Bank Uganda v Edison Kikwaya Musinguzi (High Court Civil Suit No. 128 of 2012)
  • National Insurance Corporation v Mugenyi & Company Advocates [1987] HCB 28
  • National Enterprises Corporation v Mukisa Foods Ltd (Court of Appeal Civil Appeal No. 42 of 1997)
  • HCT-04 - CV- CA-133-2009, Arising from M.A No. 250 of 2009, Timber & General Store Ltd., Micky Wandera v. Ismail Mugoda
  • Horizon Coaches Ltd v Pan Africa Insurance Ltd (Supreme Court Civil Application No. 20 of 2002)
  • G Afar v Uganda Breweries Ltd (Supreme Court Civil Application No. 11 of 2008)
  • Mugume Ben & Anor v Akankwasa Edward (High Court Miscellaneous Application No. 4 of 2008) [2008] HCB 159
  • Violet K Mukasa v E Matovu (High Court Civil Suit No. 35 of 1988) [1922-93] HCB 235
  • Erukana Omuchilo v Ayub Machiwa [1960] EA 229
  • Bendino v Kamanda [1977] HCB 311
  • Shokatali Abdulla Dhalla v Sadrudin Meralli (Supreme Court Civil Appeal No. 32 of 1994)
  • Anthony Barugahare v Marits Ntaratambi [1987] HCB 95

Full judgment

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

Nakiranda v Musoke Mbidde & Ors (Miscellaneous Application No. 548 of 2013) [2013] UGHCCD 121 (18 September 2013)
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.