Wakilii

Tweheyo v Barurengyera (HCT) [2013] UGHCCD 103

High Court · 2013 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Magistrate Grade I ruling dismissing application to set aside ex parte judgment
Decision
The ex parte judgment and decree of the lower court stand. The appellant's application to set aside the ex parte judgment remains dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the refusal to set aside an ex parte judgment. The court held that substituted service ordered by the lower court was valid and effectual under Order 5 r.18(2) CPR where personal service could not be effected. The appellant failed to demonstrate improper service or that the trial court exercised its discretion on a wrong principle of law. The court reaffirmed that an appellant cannot argue grounds not set out in the memorandum of appeal without leave of court under Order 43 r.2(1) CPR.

Outcome

The ex parte judgment and decree of the lower court stand. The appellant's application to set aside the ex parte judgment remains dismissed.

Facts

The appellant sold land to the respondent under a sale agreement. The respondent paid UGX 1,400,000 with a balance of UGX 300,000 to be paid by 13 April 2007. The transaction fell through, with each party alleging non-performance by the other. The respondent sued for a declaration that the land had been sold to him and for specific performance. When personal service on the appellant failed after his former counsel declined service and neighbors reported he had left his residence, the trial court ordered substituted service by affixing summons to the court notice board and advertising in the Orumuri newspaper. The case proceeded ex parte and judgment was entered for the respondent. The appellant then applied to set aside the ex parte judgment, claiming he was not properly served. The trial Magistrate dismissed the application, finding substituted service valid.

Issues

  1. Whether the trial Magistrate erred in dismissing the application to set aside ex parte judgment on the ground that counsel for the applicant had refused service on his behalf.
  2. Whether the trial Magistrate erred in ignoring evidence that the applicant's whereabouts were known to the respondent when allowing substituted service.
  3. Whether the trial Magistrate erred in finding that the plaintiff's lawyers were diligent in attempting personal service when the affidavit of service was allegedly false.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Substituted Service — Validity and Effect
Where the court is satisfied that summons cannot be served in the ordinary way and orders substituted service under Order 5 r.18 CPR, such service is as effectual as if it had been made on the defendant personally.
Civil Procedure — Setting Aside Ex Parte Judgment — Grounds
An ex parte judgment will be set aside where there has been no proper service or where the defendant demonstrates sufficient cause for not filing a defence and shows merit in the defence. The defendant must also act reasonably and promptly in applying to set aside the judgment.
Civil Procedure — Appeal — Grounds of Appeal — Restriction
An appellant cannot argue or be heard in support of any ground of objection not set forth in the memorandum of appeal except with leave of court under Order 43 r.2(1) CPR. Any ground argued without leave that differs from those in the memorandum of appeal will be struck off.
Civil Procedure — Evidence — Affidavit Evidence — Unrebutted Facts
Where facts are sworn in an affidavit and are not rebutted or denied, the presumption is that they are admitted.
Administrative Law — Judicial Review — Appellate Interference with Discretion
An appellate court will not normally interfere with the exercise of discretion by a trial court merely because it could have exercised it differently, but only where the discretion was exercised on a wrong principle of law or upon a misdirection as to the facts so that the decision was entirely unreasonable.

Legislation cited (5)

Cases cited (10)

  • E. Zikampata v Uganda Libyan Trading Co. Ltd (1979) HCB 32
  • Nansanga Aisha v Abib Yawe & 3 Others (Civil Appeal No. 76 of 2011)
  • Wamini v Kirima [1969] EA 172
  • Korutaro Mukairu [1978] HCB 215
  • S. Kyobe Senyange v Naks Ltd [1980] HCB 31
  • Nicholas Roussos v Gulam H.H. Viran (Supreme Court Civil Appeal No. 3 of 1993)
  • Nasaka Farmers & Producers Ltd v Aloysius Tamale [1992-1993] HCB 203
  • Erukana Omuchilo v Ayub Machiwa [1960] EA 229
  • Massa v Achen [1975] HCB 297
  • Clouds 101 Ltd v Standard Chartered Bank (U) Ltd (Supreme Court Civil Appeal No. 1 of 1992)

Full judgment

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

Tweheyo v Barurengyera (HCT) [2013] UGHCCD 103 (5 August 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.