IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. 1195 OF 1998
MUHAMOOD WANULA BUSULWA :::::::::::::::::::::: PLAINTIFF
INTERSTATE FINANCE CO. & 2 OTHERS :::::::::::: DEFENDANTS
Before: The Hon. Principal Judge Mr. Justice J.H. Ntabgoba
This is an application brought, by notice of Motion under Order 9 rule 9 of the Civil Procedure Rules as well as Order 48 rules 1 and 3 of the Rules. The application also employs S. 101 of the Civil Procedure Act. The application seeks an order that the interlocutory judgment passed against the applicant in H.C.C.S. NO. 1195 of 1998 be set aside for the reasons that: —
(b) the affidavit of service filed on record is based on falsehoods as the applicant was never served with court summons as alleged and the process server is not known to the applicant.
(c) the applicant has a good defence to the suit and the suit raised triable issues in law and fact.
“I learnt of a suit against me by the respondent/ plaintiff through my lawyers M/s Sebalu & Lule Advocates who saw the cause list where a Miscellaneous Application by the Respondent/Plaintiff against myself, Interstate Finance Company Ltd, and Muramuzi Enterprises has been fixed for 3rd March 1999. That on perusing the Court file, I found that an interlocutory judgment had been entered against the defendants on 8th January 1999 for failure to enter appearance and the matter is to be set down for formal proof.”
“The serving officer shall, in all cases, in which the summons has been served under rule 15 of this Order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons.”
Mr. Makada was of the strong view that a breach of this provision was committed in view of the absence of the person who identified the applicant from paragraph 4 of the affidavit of service sworn by Alfred M. Kahangire, the process server which depones: —
“I then went to Karen Stores at Ben Kiwanuka Street where I met the second defendant ROBINA KARUNGI and served her with the Court papers which she too accepted by signing on my copies thereof now returned in Court.”
In view of the affidavit of Robina Karungi denying having been served by the process server, one would have expected a rebuttal of this averment. To answer this Mr. Rwakafuzi, Counsel for the respondent pointed out that the respondent, in his affidavit in reply did clarify the omission, when he pointed out that paragraph 4 of the respondent in reply depones:—