Last updated on August 16th, 2024 at 10:23 am
Topic: Civil Procedure – Setting Aside Default Judgment
Date of Judgment: 14 June 2024
Court: High Court of Uganda at Kampala (Civil Division)
Case Number/Citation: Miscellaneous Application No. 362 of 2021 (Arising from Civil Suit No. 084 of 2019), 2024 UGHCCD 102
Judge: Hon. Justice Boniface Wamala
Summary Facts of the Case
The applicant, Luzinda Saleh, filed an application to set aside an ex parte judgment and decree against him, claiming he was not properly served with the summons.
The respondent, Chims Africa (U) Limited, opposed the application, asserting that the applicant had been duly served but failed to appear in court, leading to a default judgment.
Legal Issues Before the Court
- Whether the applicant was properly served with summons.
- Whether there are grounds to set aside the default judgment.
- Whether the respondent’s affidavit in reply was filed out of time.
The decision of the Court
The court set aside the default judgment and decree, granted the applicant unconditional leave to appear and defend the suit (vide Civil Suit No. 084 of 2019), and ordered the applicant to file a written statement of defense within 15 days.
The court found confusion in the service of summons as the initial summons served on the Applicant had expired and it appeared he had not been served with fresh ones, indicating that the applicant was not effectively served.
The Applicant also demonstrated that there were bona fide triable issues of law and fact as he argued the case against him was unknown to him, constituting good cause to set aside the default judgment.
As to whether the respondent’s affidavit in reply was filed out of time, the Court noted that interlocutory applications as this was are different from ordinary suits and therefore the timelines in ordinary suits should not apply strictly to them.
Key Quote: “I note that while the summons was issued on 5th March 2019, and was purportedly served on 6th March 2019, it is said to have been acknowledged by the Applicant on 29th March 2019. Secondly, while the suit was filed on 1st March 2019 and the summons issued on 5th March 2019, there is a letter by the Respondent’s Counsel dated 3rd February 2019 indicating that the summons that was issued on 5th March 2019 had expired before it was served and requesting for fresh summons. Yet there is evidence sought to be relied on by the Respondent showing that the summons of 5th March 2019 had been served on 6th March 2019. In my view, all the above confusion goes to prove one thing: that there was no effective service of summons upon the Applicant. Such entitles the Applicant to an order setting aside the default judgment and decree and being granted leave to appear and defend the suit.” – Justice Boniface Wamala
Law Applied by the Court
- Order 36 Rule 11 of the Civil Procedure Rules
- M.M.K Engineering v Mantrust Uganda Ltd HC Misc. Application No. 128 of 2012: The applicant should demonstrate to the court that there are issues or questions of fact or law in dispute which ought to be tried
Counsel on Record
- For the Applicant: Mr. Ahumumuza Edward from M/s JP Baingana Associated Advocates
- For the Respondent: Ms. Nakimbugwe Immaculate from M/s Mutungi & Co. Advocates
Conclusion:
This judgment reinforces the grounds of setting aside default Judgements; ineffective service of summons and good cause.
It underscores the significance of diligence in the service of summons.