Wakilii

Nantale v Wilhelm (Miscellaneous Application 652 of 2020)

High Court · [2023] UGHCFD 49 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment in divorce proceedings
Decision
Ex parte judgment in underlying divorce cause set aside and matter to be heard inter parte

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant was not effectively served with summons to answer the divorce petition, as there was no proof that she was actually in Uganda at the time or refused service, and no affidavit of service demonstrating that she made service difficult. Sufficient cause existed to set aside the ex parte judgment where the applicant was not served, filed the application without unreasonable delay, and had a defence to the petition. Application granted and ex parte judgment in Divorce Cause No. 103 of 2017 set aside.

Outcome

Ex parte judgment in underlying divorce cause set aside and matter to be heard inter parte

Facts

The applicant, a Ugandan woman residing in Germany since 2003, sought to set aside an ex parte judgment delivered in Divorce Cause No. 103 of 2017. The respondent had filed the divorce petition and obtained judgment after the applicant allegedly failed to respond. The applicant contended that she was not served with the summons to answer the petition, was not ordinarily resident in Uganda, and was not effectively served with hearing notices. The respondent claimed that the applicant was served through her lawyers, Serwadda Muhereza & Co Advocates, and that she was in Uganda at material times. However, those lawyers wrote to court stating they did not represent the applicant in the divorce matter. Substituted service was effected through publication in the Daily Monitor on 1 August 2019. The applicant maintained she was in Germany and only came to Uganda occasionally. The court found contradictions in the evidence regarding the applicant's presence in Uganda at the time of service and no affidavit of service proving that the applicant made it difficult to be served.

Issues

  1. Whether the ex parte judgment made in Divorce Cause No. 103 of 2017 should be set aside.
  2. Whether the applicant was duly served with summons to answer the divorce petition.
  3. Whether sufficient cause exists to set aside the ex parte proceedings.

Orders

  • Application granted.
  • Judgment in Divorce Cause No. 103 of 2017 is hereby set aside.
  • Divorce Cause No. 103 of 2017 shall be heard inter parte.
  • Costs shall stay in the cause.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Service of Summons — Order 9 Rule 27
Under Order 9 rule 27 of the Civil Procedure Rules, a defendant against whom an ex parte decree is passed may apply to set it aside upon satisfying the court 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.
Civil Procedure — Service of Process — Effective Service — Burden of Proof
Effective service means having the desired effect of making the defendant aware of the summons. Where there is no affidavit of service showing that a party made it difficult to be served, and no proof that the party was actually in the jurisdiction at the time of service, service is not effective.
Civil Procedure — Service Through Advocates — Authority to Accept Service
Where an advocate has written to court stating that he does not represent a party in a particular matter, service of court process through that advocate is not effective, even if the advocate may have known the party or represented the party in other matters.
Civil Procedure — Sufficient Cause — Factors to Consider
Sufficient cause to set aside an ex parte judgment depends on the circumstances of each case and must relate to the inability or failure to take a particular step in time. It is demonstrated by showing an honest intention of attending court, diligence in applying for reinstatement, and the existence of a defence.
Evidence — Proof of International Travel — Best Evidence
Proof of international travel is not by air tickets only but should be by presenting passports or travel documents where entry and exit is indicated and stamped accordingly. A boarding pass coupled with proof of entry and exit in the passport is the best proof of actual travel.
Family Law — Divorce Proceedings — Right to Be Heard — Constitutional Principles
By the nature of the impact of divorce on all concerned parties, it is prudent that opportunity is given for the parties to give as much information as is available so that the court makes an informed decision, without undue regard to technicalities, subject to the constitutional right to be heard under Articles 28 and 126 of the Constitution.

Legislation cited (8)

Cases cited (15)

  • Twinomuriisa Jordan v Samuel Mugume (Miscellaneous Application No. 837 of 2021)
  • Mohammed Majyambere vs Bhakresa Khalil
  • Kakooza John Baptist v Electoral Commission (Election Petition No. 11 of 2007)
  • Obura & Another v Equity Bank (Miscellaneous Application No. 809 of 2015)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Uganda v. F. Ssembatya and another [1974] HCB 278
  • Sarapio Tinkamalirwe v Uganda (Supreme Court Criminal Appeal No. 27 of 1989)
  • Twinomugisha Alex and Two Others v Uganda (Supreme Court Criminal Appeal No. 35 of 2002)
  • Uganda v. Abdallah Nassur [1982] HCB
  • Geoffrey Gatete and Angela Maria Nakigonya v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Florence Nabatanzi v Naome Zinsobedde (Supreme Court Civil Application No. 5 of 1997)
  • Hikima Kyamanywa v Sajjabi Chris (Court of Appeal Civil Appeal No. 1 of 2006)
  • Buso Foundation Ltd v Bob Mate Philips & Another (Court of Appeal No. 40 of 2009)
  • Crown Beverages Ltd v Stanbic Bank of Uganda Ltd (High Court Miscellaneous Application No. 181 of 2005)
  • Engineering TradeLinks Ltd v DFCU Bank Ltd (Miscellaneous Application No. 337 of 2014)

Full judgment

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

Nantale v Wilhelm (Miscellaneous Application 652 of 2020) [2023] UGHCFD 49 (5 January 2023)
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.