Wakilii

Turyatunga v Sietco International (Civil Suit 937 of 1990)

High Court · [1992] UGHC 63 · 1992 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree under Order 9 rule 24 of the Civil Procedure Rules
Decision
Exparte judgment set aside; defendant granted leave to defend and case remitted for hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the affidavit of service was materially defective as it failed to comply with Order 5 rule 17 of the Civil Procedure Rules by not stating the time of service, the name and address of the person identifying the person served, or who witnessed delivery. The court cannot rely on a defective affidavit to conclude that summons were duly served. The exparte judgment and decree were set aside and the defendant was granted leave to enter appearance and file a defence.

Outcome

Exparte judgment set aside; defendant granted leave to defend and case remitted for hearing on the merits

Facts

The plaintiff obtained an exparte interlocutory judgment and decree against the defendant after the defendant failed to enter appearance. The defendant applied to set aside the exparte judgment under Order 9 rule 24 of the Civil Procedure Rules. The defendant claimed that although service was effected on an employee named Wang, that employee left the country without instructing the manager or other employees or the company's advocates. The defendant only learned of the suit when its advocates were notified of the judgment delivery date. The defendant contended it had a defence on the merits as police investigations revealed the plaintiff's driver was at fault. The plaintiff opposed the application, arguing that failure to enter appearance was due to the defendant's own negligence and that the defendant's advocates were aware of the suit when it was set down for formal proof.

Issues

  1. Whether the defendant was duly served with summons to warrant entry of exparte judgment.
  2. Whether the exparte judgment and decree should be set aside under Order 9 rule 24 of the Civil Procedure Rules.

Orders

  • Application allowed.
  • Exparte judgment and decree set aside.
  • Defendant to be served with fresh summons within 60 days.
  • Defendant to enter appearance and file a written statement of defence in the normal manner.
  • Case to be heard on its merits.
  • Costs of the application to be in the cause.

Rules and key headnotes

Service of Process — Affidavit of Service — Requirements under Order 5 rule 17
An affidavit of service must comply with the substantive requirements of Order 5 rule 17 of the Civil Procedure Rules by stating the time when and manner in which summons were served, and the name and address of the person identifying the person served and witnessing delivery or tender of summons. These requirements are matters of substance, not mere form.
Exparte Judgments — Setting Aside — Defective Service
Under Order 9 rule 24 of the Civil Procedure Rules, where an affidavit of service is so defective that the court cannot rely on it to conclude that summons were duly served, the exparte judgment and decree must be set aside. An interlocutory judgment entered before proper service of summons or where service is not satisfactorily proved is bad in law and ought to be set aside.
Exparte Proceedings — Judicial Caution Required
Where a party wishes to proceed exparte on the strength of an affidavit of service, courts should be especially cautious when accepting the affidavit of service to ensure strict adherence to the rules governing service of process.

Legislation cited (3)

Cases cited (4)

  • Zirabamuzale v Andrew Comet & Rosleigh Properties Ltd (High Court Civil Suit No. 657 of 1981)
  • Lake Victoria Bottling Company Vs. Bank
  • Zikampata v Uganda General Trading Co (High Court HCB/1979/52)
  • Civil Suit No. 973/77 C. Vs. Lawrence Kaziro

Full judgment

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

Turyatunga v Sietco International (Civil Suit 937 of 1990) [1992] UGHC 63 (11 September 1992)
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.