Nicholas Roussos Habib v Gulam Houssein (Civil Appeal 28 of 97)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed the appeal, holding that the trial judge did not assume appellate jurisdiction when he declared the substituted service ineffectual and the resulting ex parte judgment a nullity. Setting aside an ex parte judgment under Order 9 rule 24 of the Civil Procedure Rules, on the ground that summons was not duly served, falls squarely within the first leg of that rule. Since the respondents were never properly served, the ex parte judgment was tainted with illegality and could not stand. Order 9 rule 24 was the proper and only remedy open to the respondents, who were not parties to the ex parte proceedings and so could not appeal against them.

Outcome

Appeal dismissed; the High Court order setting aside the ex parte judgment under Order 9 rule 24 was upheld

Facts

In 1982 the appellant's mother (to whose title the appellant later succeeded) filed a suit against the respondents, whose whereabouts were not known. Substituted service of summons to enter appearance was applied for and obtained, effected by advertisement in the Uganda Times and Muno newspapers and by affixing a copy to the High Court notice board. The respondents did not enter appearance or file a defence. The suit proceeded ex parte and judgment was entered against them on 18 August 1982. About twelve years later, in April 1994, the respondents applied to the High Court under Order 9 rule 24 of the Civil Procedure Rules to set aside the ex parte judgment, contending they had never been duly served. The High Court found the substituted service ineffectual and the resulting judgment a nullity and set it aside. The appellant appealed.

Issues

1. Whether the trial judge assumed appellate jurisdiction by declaring the order for substituted service bad in law and a nullity when setting aside an ex parte judgment under Order 9 rule 24.
2. Whether the respondents' proper remedy was to appeal against the earlier order of substituted service rather than apply to set aside the ex parte judgment.

Orders

• Appeal dismissed.
• Costs of the appeal and of the court below awarded to the respondents.

Rules and key headnotes

Legislation cited (3)

• Civil Procedure Rules Order 9 rule 24
• Civil Procedure Rules Order 5 rule 19
• Court of Appeal Rules 1996 rule 97

Cases cited (4)

• Robert Kavuma v Hotel International Ltd Court of Appeal No. ...
• Greig v Kanseen [1948] All E.R. 108
• Makula International Ltd. v His Eminence Cardinal Nsubuga and Another 1982 HCB 11
• Nicholas Roussos v Gulamhussein Habib Virani and Another (Civil Appeal No. 9 of 1993)

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