THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CASE NO. HCT-00-CV-CS-31 OF 2003
(MISC. APPL. 320 OF 2003)
OKOTH ALEX ::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
LWANYAGA EDWIN :::::::::::::::::::::::::::::::::: DEFENDANT
BEFORE: HON. MR. JUSTICE J.B.A. KATUTSI:
This is an appeal against the ruling of a magistrate GI refusing to set aside exparte judgment that had been entered against the appellant.
By his plaint dated the 14th day of May 1999 Respondent sued appellant by summary procedure under O xxx of the Civil Procedure. The plaint was what can be called “home made” as it was drawn as it appears by the plaintiff personally.
On 26th May 1999 Appellant filed a home made written statement of defence.
On 29th July 1999 a decree was signed by the court. The relevant part of that decree stated.
“UPON failure by the defendant to apply for leave to appear and defend the suit within the period allowed by the law under order 33 Rule 3 of the Civil Procedure Rules and judgment having been entered against the defendant:”
Appellant applied to the trial magistrate to have the exparte judgment set aside. In his affidavit in support of the application the Appellant inter alia deponed that:
“2. THAT on the 29th July 1999 I an exparte decree was entered against me with costs upon failure to apply for leave to defend the suit.
3. THAT on the 26th May 1999 I notified court that I was not indebted to the respondent in the sum claimed or at all.
4. THA I am surprised the court went ahead to enter judgment against me yet no affidavit of service was filed on the court record.”
In the lower court appellant was represented by Mr. Abubakar Kawesa the same counsel that is representing him here, Mr. Kawesa submitted inter alia that:
In his ruling the learned trial magistrate wrote:
Instead of applying for unconditional leave to appear and defend the suit, the applicant/defendant filed his written statement of defense contrary to the provisions laid down under order 33 of Civil Procedure Rules.”
Appellant now appeals against that ruling. There is only one ground of appeal which is that:
Before me Mr. Kawesa complained that the learned trial magistrate did not consider conditions by which exparte judgments can be set aside under O.33 r 11 of the Civil Procedure Rules. He went on to submit that the appellant had shown that there were goods causes for setting aside the decree. It appears that Mr. Kawesa was submitting that since Appellant was claiming that the claim had been settled, that constituted a good cause for setting aside the exparte judgment. According to the appellant he was no longer indebted to the respondent.
Under O.33 r 11 of the Civil Procedure Rules the exparte judgment after a decree has been extracted as it had been in this case, can be set aside if court is satisfied that the service of the summons was not effective, or for any other good cause, which court is to record. It was therefore incumbent on the appellant to satisfy the trial magistrate that either the service of the summons was not effective or that there was good cause in case service of the summons was effective to set aside the expart judgment.
The ruling by the learned trial magistrate that there was effective service of the summons basing himself on the affidavit of the process server was with respect a misdirection on a point of law.
In the case of WAWERU v. KIROMO (1969) EA 172 the defendant applied to set aside the service on him of a summons. The affidavit of the process server stated that the summons had been left with the defendants’ wife, (just as the affidavit in this case stated,) with instructions that she should keep it for her husband as he was not present at the time (just as the appellant was not present at home). TREVELYAN J. held that as the process server made no inquiry about the defendant’s whereabouts it could not be said that he could not be found, so as to allow service on his wife under O.5, r 12 of the Civil Procedure (Revised) Rules 1948 – (our O.3 r.14 CPR).
But there was another reason for holding that the summons was effectively served. Proof of effective services of the summons was supplied by the appellant himself. On 26th May 1999 appellant filed a written statement of defense. In paragraph I of that statement of defense he averred as follows:
As I said before in this judgment both appellant and respondent filed “home made” pleadings. Under O.33 r.2 CPR a suit may be instituted by presenting a plaint in the form prescribed endorsed “Summary Procedure Order XXXIII” In this case respondent filed a plaint endorsed: “PLAINT.
(Under O.33 CPR)”. This plaint did not answer the requirements of O.33 r.2 CPR. Yet the magistrate accepted the suit as one coming under O.33 r.2 CPR.
The last paragraph of the written statement of defense filed by the appellant averred as follows:
I am entitled to treat this appeal as an application for revision. If I am right in that, then I order that the suit goes back to the trial magistrate to be tried as an ordinary suit. Each party is to bear his own costs of this appeal and of
the proceedings in the lower court that gave rise to this appeal. I order accordingly.