[2012] UGHCCD 115
The court found that the affidavits of service were questionable and that the applicants had raised prima facie triable issues, particularly a defence of set-off. The court emphasized the importance of access to justice and the need to allow parties to be heard on the merits rather than relying on technicalities....
Source-derived case information.
- Citation
- [2012] UGHCCD 115
- Parties
- Applicant: Deborah Kaboroga; Applicant: Allen Tibesigwa; Respondent: Pahurina F
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Misc. Civil Application No. 15 of 2012
- Procedural Posture
- Miscellaneous Application / Revision Order
- Outcome
- Judgments, decrees, and execution orders set aside; applicants granted leave to defend; immediate release from civil prison ordered.
- Legal Topics
- Service of Process, Summary Suit Procedure, Leave to Defend, Set Off Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Deborah Kaboroga
Applicant
Allen Tibesigwa
Applicant
Pahurina F
Respondent
Procedural Posture
Miscellaneous Application / Revision Order
Legal Issues
- 1 Whether the applicants were properly served with summons requiring them to seek leave to defend the suits.
- 2 Whether the summary suit failed to account for sums held in credit to the applicants.
- 3 Whether the applicants should be granted the right to file a defence and be heard on the merits.
Ratio Decidendi
The court found that the affidavits of service were questionable and that the applicants had raised prima facie triable issues, particularly a defence of set-off. The court emphasized the importance of access to justice and the need to allow parties to be heard on the merits rather than relying on technicalities. Given the doubts about service and the existence of a potential defence, the court set aside the judgments, decrees, and execution orders, granted the applicants leave to file their defence, and ordered their immediate release from civil prison.
Court Disposition
Judgments, decrees, and execution orders set aside; applicants granted leave to defend; immediate release from civil prison ordered.
Orders
- The judgments, decrees and execution orders made in Civil Suits 270 of 2011 and 271 of 2011 against Debora Kaboroga and Allen Tibesigwa are hereby set aside.
- The defendants are granted leave to file their defence in the two suits within 14 days from the date of this order.
Full Case Text
Judgment text and source record
19 paragraphs
**THE REPUBLIC OF UGANDA** IN THE HIGH COURT **OF UGANDA AT KABALE**
**MISC. CIVIL APPLICATION NO. 15 OF 2012** (FROM CHIEF MAGISTRATE CIVIL SUITS NO. 270 AND 271 OF 2011)
1. DEBORAH KABOROGA 2. ALLEN TIBESIGWA:::::::::::::::::::: APPELLANTS/APPLICANTS
VERSUS
PAHURINA F::::::::::::::::::::::::::::::::::::RESPONDENT/DEFENDANT
**BEFORE HON. MR. JUSTICE J. W. KWESIGA**
**REVISION ORDER**
This Revision order is made pursuant to the Applicants oral presentation before the Judge on official visit to Ndorwa prison.
The grounds of the application are that;
1. The Applicants were never served with summons requiring them to seek leave to defend the suits. 2. That the plaintiffs case brought by summary suit did not take into account sums that were held in credit to the applicants.
Following the complainant made by these two women one of whom was imprison with a very young baby, I have perused the above original court files and the affidavits of services Zaribugire James which are questionable. The applicants are seeking the right to be heard and they have raised prima facie triable issues in the suit of set-off as a defence. Courts must as much as possible allow access to justice by all who ask for it without undue emphasis on the technicalities. Given the doubt created by their presentation it is important that both parties be given the chance to present their respective cases and a decision be made based on evidence adduced.
In view of the above I make the following orders:-
1. The Judgments, decrees and execution orders made in Civil Suits 270 of 2011 and 271 of 2011 against Debora Kaboroga and Allen Tibesigwa are hereby set aside. 2. The Defendants are grant leave to file their defence in the two suits within 14 days from the date of this order. 3. DEBORA KABOROGA and ALLEN TIBESIGWA shall, immediately be set free from Ndorwa Prison where they are held as Civil Prisoners. O/C Prison is so ordered.
Dated at Kabale this 8th day of May, 2012.
JUDGE
C. C Officer in Charge ,
NDorwa Prison.
Kabale.