[2005] UGSC 33


## PASTORI TUMWEBAZE .................................... **....... RESPONDENT**

(Appeal from the judgment of the Court of Appeal in Kampala (Mukasa-Kikonyogo, DCJ, Okello, and Engwau, JJ. A) dated 5/4/2004) in Civil Appeal No. 75 of 2003

## JUDGMENT OF ODER, JSC

The appellant, Edison Kanyabwera, sued the respondent, Pastori Tumwebaze, in the High Court for damages in negligence arising from a road traffic accident in which the respective motor vehicles of the two parties were involved and damaged. For ease of reference, I shall hereinafter refer to the appellant as "the plaintiff" and respondent as "the defendant". The plaintiff claimed that the accident was caused by the negligence of the

def endant's driver for which the defendant was vicariouslv liatlle. The defendant filed a written.statement of defence to the suit, in which he plea'ded contributory negligence on the part of the plaintiff's driver, for which he claimed the plaintiff was vicariouslv liable. The hearlng of the suit was adjourned on several occassions, because the defendant was not served with the hearing notice. 0n 231311998, the trial judge, Lugayizi, J, adjourned the hearing of the suit to another date, because, according to him, the "affidavit of service is unsatisfactory". He directed that: -

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"Let the plaintiff's side serve the defendant again. They shoald go with L. C.'s or Police and in case the defendant refuses service the L. C- or Police should swear an affidavit to that eFFect as well".

SLrllsequelrtly on 'i0.11.1998, the record of 'the trial court rea ds:

"Mr. Akampulira for plaintiff, plaintiff is present-Msilrh2f )n7i f nrtrf alaF?

Mr. Akampalira- Mr. Kabyesiza for defendant absent and defendant is not present either. They were served and I have an affidavit of service and a copy of the summons they endorsed. Can we proceed exparte under order 9 rule 17 of the CPR?

## court

I am satisfied that the defendant's advocates were served with today's hearing notice. Since they have not turned up or given any explanation of their absence or that of their client I assume that both of them are no longer interested in being present during the hearing of this case- This case will therefore proceed exparte".

The learned trial judge proceeded to hear the plaintiff's evidence, after which, on 27.10.2001, he passed judgment for the plaintiff for:

- 1. Shs: '12ml: as replacement value for the pick up. - 2. Shs: 2ml: general damages.

- tnterest at rate of 60/o p.a. for No.1 from the date of filing suit until pavment in full and for No. 2 from the date of jLrdgment until payment in full. 3 - 4. Costs of the suit

Subsequentlv, the defendant filed an application in the Hlgh Court Lrnder Order 9, rule 24 of the Civil Procedure Rules (CPR) for an order for setting aside the ex-parte judgment. The nlain ground of the application was that the defendant was not served with the hearing notice for the suit. OkumLr-Wengi, J, heard the application and dismissed it on the ground that the trialjudge, Lugayizi, J, was satisfled that the defendant's advocates, had been duly served with the hearing notice and nightly heard and passed the judgment exparte.

Thereafter, the defendant applied to the High Court for ^a review of its order, which had refused to set aside the ex parte judgment. The application was made under section 35 of Judicature Act; section 83 of the civil Procedure Act; and Order 42, rules 1 and 8 of the CPR, on the grounds that:

- There was an error apparent on the face of the record 1 - The applicant was aggrieved by the decision of the judge dismissing the application for setting aside the exparte judgment 2 - 3. The appllcant had a good defence to the suit - The order was appealable but no appeal had been preferred against the order arising f rom the decree and judgmerrt. lf the judgment arising from the exparte proceedings was not set aside, ^a miscarriage of justice would be occasioned to the ap p licant. 4 - okLrmu-Wengi, J. heard and granted the afiplication for ^a review, setting aside the ex-parte judgment. The plaintiff successfully appealed to the Court of Appeal. Hence the present appeal, wlrich is made on the following grounds:

- 1 The learned Justices of Appeal erred in law and fact when they held that there was s€rvice on the defendant. - 2 The learned Justices of Appeal failed in their duty of re-evaluating and subjecting the evidence on record to an exhaustive scrutinV before reaching their conclusion that the defendant's counsel was served with Court process.

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- The learned Justices of Appeal erred in law and fact when theV treld that the alleged error on the face of the record was non-compliance with the learned Judge's order for a specific order of service. 3 - Having found that the order for specific mode of service was made to ensure that the defendant was served, erred in law and fact to hold that the alleged service on counsel for the befendant was proper 4

Both partles to the appeal filed written submissions in srrpport or opposition to the appeal as the case may be. M/S Ntanrbirweki l(antebbe and Kwarisiima, Advocates, sLtbn'titted for the plaintiff and M/S Babigumira & Co. Advocates, subrnitted in reply in opposition to the appeal. The plairltiff's learned counsel argued ground one and two of the appeal together. They submitted that it was not sufficient for the trial judge to accept counsel's submission from the bar that the defendant had been served with the Hearing Notice for the suit. The facts on which the learned trial judge based his ruling to proceed ex parte should have, been written down to appear on the record of proceedings to prove that the defendant's lawvers had, in fact, been served with the Court process. For instance the affidavit of service should have been recorded as having been filed on the record, either before or at the time the suit was heard ex parte. only the original or copy of such an affidavit would have provided proof that the defendant or his counsel had been dulv served with a Hearing Notice. For thls submission, learned .counsel relied on ttre provisions of Order 5, rule 17 of the CPR and on the cases of D. Mbonigaba vs. Nkinzehlki, civil suit No-

I

## 687 0f 1971; and osana otwani vs. Bakenya Ssalongo, Civil No. 62 of 1974 fi97d HCB.

Learned counsel further submitted that particulars of the receipt (if anV) for fees paid to file the affidavlt of service or a copV thereof shoutd have been entered on the coLrrt file cover. No such receipt was exhibited; nor was there evidence of any entry showing payment of fees for filins an affidavit of the service. The learned counsel further submitted that according to the notice of change of advocates on record Messrs Kabyesiza & Co. Advocates became the defendant's lawyers in March '1999, long after the hearing of the suit had began. The hearing of the suit began on 10.11.1998, and it was completed on 16.8.2001. What was"the purpose of serving Mr. Bakiza of that firm of advocates with hearing notice on 5.5.2001 as was stated by Ronald Sebagala in his afiidavit of 8.5.2001? The appellant's learned counsel ^further sullmitted that the Court of ^A ppeal should have sr-rbjected all the eviden ce concern inq the alleoed service of Court process on the defendant to that fresh and exhaustive re-evaluation that the defendant -.xpected of it. llad it done so, it wquld have reached the conclursion that the defendant had not been

s properly served and it would have overturned the High Court s order revlewing its earlier decision. The Court of Appeal having failed in its duty to do so as the first appellate court, the learned counsel urged us to reevaluate the evidence and reach our own conclusion. Learned coLrnsel relied on Kifamunte Henry Vs-Uganda, Criminal Appeal No 10. of 1997 (SCU) (Unre orted ) Selle Vs. Associated Mcitor Boat and Another (1968) EA-123, Bogere and Another Vs-Uganda criminal nppeal No.1 of 1997tscu) (Unreported); Pandya Vs. Thomas n947) AC484 (H.1.).

I

ln their submissions opposing the appeal, the defendant's learned counsel contended that the grounds of appeal are intertwined, as theV all revolved on the issue of whether or, not the service of hearing notice on the counsel for the defendant was effective. Tire learirecl coLrnsel tl'ierefore argued all the grounds of appeal together. TheV commenced by adopting their subrnissions in the lower Court and referred to the duty of that Court as the first appellate Court to scrutinize and re-evalLrate the evidence and draw its own ccrrclusiorrs of fact or lavrr, and to what this Court said in the case of Banco Arabe Espaqgl Vs. Bank of Uganda,

civil Appeal No- 8 of 1998 6CU Unreported)- Learned CoLrnsel contended that in the instant case the Court Of Appeal properly performed its duty as the first appellate court in accordance with the principles stated llv this CoLirt in Banco Arabe Espanol Gupril. After scrutinizing the evidence, the Court of Appeal found that Kabyesiza & Co, Advocates, who had instructions to represent the defendant in the case was served with the hearing notice as his dulV appointed agent. Service on them on behalf of the defendant was proper and eff ective. The defendant's learned' counsel f urther contended that the Court of Appeal rightly found that the error on the face of the record was not that the defendarrt's coLrnsel had been served in the absence of the L. C. or the Police. The Court of Appeal rightlv held that the trial judge had not intended to set a specific mode of service on the defendant by ordering that he should be served in the presence of the L. C. or the Police. The sum total of the findings of the Court of Appeal in this regard was that by making such an order, the learned trial judge intended to insure effective service of the hearing notice. The order did not exclude other modes of effecting service.

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Regarding change of advocates the defendant's learned coLrnsel submitteci that in the defendant's own affidavit supporting the application to set aside the exparte judgnlent he delloned that in May tSge, he changed his instructions to Odere, KabVesiza & Co. Advocates to corltinLre with his defence. Learned counsel contended that in tl-re circunrstances, Okumu-Wengi. J., rightly held that the defendant had been properlv served when the learned judge was rejecting the defendant's application for settlng aside the exparte judgment.

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ln my opinion, the main issue in this appeal is whether the Hiqh CoLrrt's decision to review its earlier decision disrnisslng the defendant s ^a pplication to set aside the exjpa!\*!\_e- judgment sh\_o.uld be left to stand. The appllcation was made under Section 35 of the Judicature Act, section 83 0f the civil Procedure Act and rules '1 and B of order 42 0f the cPR. section 35 0f the Judicature Act appears to be irrelevant. section 83 of the civil Procedure Act provides for the right pf any person aggrieved bv a decree or order from which an appeal is allowed under the Act but from which no appeal has been ilreferred tc applv for a review of the judgment to the CoLrrt, which passed the decree or order. Order ⁴²

of the cPR provides the details for excising the court's jurisdiction of review.

" Order 42

- (i) AnY person aggrieved: considering himseff - a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or - b) by a decree or order from which no appeal is hereby allowed, and who from the discovery 'of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, ar for any other siifficient reason, desires to obtain a review of the

decree passed or order made against him may apply for a review of iudgment to the Court which passed the decree or made the order'.

ln the instant case, the grounds for the application for ^a review of the High Court s decision rejecting the plaintiff's applications to set aside the ex parte judgment were clearlv stated in the defendants' affidavit as follows:

- 's (iii) The learned judge should not have dismissed any application since there was no affidavit of service on record bat instead he relied on the fact that the learned trial judge had stated in his iudgment that the deiendant was served, whereas there was no proof of serviee. - (iv) That dismissing my afore said application in the absence of an affidavit of service on records is an apparent error on the face of the record which is a good and sufficient

l3

## grou,ld for review of the judEment passed against me".

The basis of the application was that there was some mistake or error apparent on the face of the record and that error was dismissing the application in absence of affidavit of service as proof that the defendant or his counsel had lleen served with the relevant hearing notice.

'I

The learned trial jLrdge Okumu-Wengi,,J., granted the appllcation f or review and vacated his earlier order refusirrg to set aside the ex-parte judgment. His main ground for doing so appears to be that the defendant had not been served wlth hearing notice in the presence of L. C.'s or the Police as Lugayizi, J., had ordered before he proceeded to trv the suit exparte. This is what okumu-Wengi, J., said in his ruling granting review:

> "From a review of the record there is no affidavit or evidence of service that the applicant was served in the presence of L.c's as earlier ordered by the trial iadge. There is atsc !'tc recerd as to what satisfiecl the iudge about the service in the way he ordered and

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there is no record of any order vacating the one made by the judge requiring service in the presence of L-c's. This be"ing the case, and in the absence of any document or evidence in the possession of the Respondent/Plaintiff and that of his advocates this Court is left with a mysterioas gap- This applicant and his advocates have had more than enough opportunity to fill the gap and correct or complete the record. The statement by the trial judge that he became satisfied ahout the service onto the defendant/applicant remains largely unsubstantiated or justified by the record withoat having to go outside the record. ln this event, I am left in some doubt how I can support the statement, as I cannot iustify it by the recard. lt is therefore my decision that my order complained of must be reviewed and I do hereby review it and order that it be vacated...."

\/hat the learned trial judge said here appears to be ^a reversal of his earlier decision that the defendant had

been served and he, consequentlv, refused the defendant's application to set aslde the ex parte judgment passed In his absence.

The basls of the Court of Appeal's decision was that there was no mistake or error apparent on the face of the record to jLrstifv a review. The absence from the record of eviderrce on that the defendant had been served in the presence of L. C s or Police was not the error or mistake apparent on the face of the record. lt was the fact that no evidence of a proper and effective service on the defendant, existed at all on the record.

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r, A-l-R. commentaries: The Code of Civi! Procedure by Manohar and Chitaley, Volume 5, 1908, it ls stated that in order that an error mav be a ground for review, it must be one apparent on the face an evident error which does not re ^urre an extraneous matter to show its incorrectness. lt nlust lle an manifest and clear that no coLrrt would permit such an error to remain on the recorc{. The "error" may be one of fact, but it is not linrited to matters of fact, and includes also error of law.

l^ fho irrcfant ..c6 rr r Lr r\, rr,J!q!!,Y v,Y?'\_ considered opinion \_Ls\_ lh-at the allsence from record of an affidavit of service on the

l() face of tl'te record justifying a review of the trial jLtdge's refusal to set aside the ex parte jud ment ^a ainst the defendant.l gaO tne learned Justices of Appeal properlv reevaluated the evidence, they would have reached the conclLrsion that the defendant or his counsel was not served at all with the hearing notice of the suit. On 1011 98 when the surit was called for hearihg bV LugaVizi, J., the plaintiff s counsel Mr. Akampulira only informed the court that the defendant and his counsel Mr. Kabyesiza were allsent though served, and that Mr. At(ampulira had an affidavit of service and a copv of the summons they had endorsed. defendant or his counsel was an error or mistake on the

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rt:

The Court record does not show that Mr. Akampulira showed the returned document of service to trial judge Lugayiuzi, inclLrding tlre affidavit of service, which he apparentiv lrad in his possession. The learned trial judge merelV recorded that he was satisfied that the defendant's advocates were served. The record does not show that the learned trlal judge had a sight of the returned documents, and the affidavit of service. I have already referrec in this judgnrent to what Ol(umu-Wengi, J., said in this regard in lris ruling refusing the defendant ^s

t1

application for setting aside the exparte judgment. At the cost of repeating, he said, inter alia:

'Unfortunately I have been unable to see the affidavit of service- On the basis of which the judge proceeded having been satisfied that service had been effected".

I agree with the submissions of the appellant's learned counsel that that had there been service, then the affidavit of service should have been on the Court record and if the copy on the Court file was missing, then the plaintiffs advocate would or should have produced a copv from their office file.

The finding of the Court of Appeal that the defendant was served with the hearing notice is contained in the following passage oi the judgment of Ot(ello, J. A, with wtlich the other rnernbers of the Court agrebd.

"ln the instant case it was submitted that the trial judge had ordered a specific mode of service to effec! service of the process on the respondent- The service was to be effected on

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the respondent in the presence of the Police or L.c and that if he refused to accept service then the L-C. or Police should swear an afFidavit to that effect- I do not agree that the trial judge thereby intended to set a speiific mode of service on the respondent- The record shows that the trial judge had not been satisfied with the earlier service when he said: -

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-.-

The affidavit of service is unsatisfactory. Let the plaintiff's side serve the clefendant again- They should go with L-C or Police and, in case the defendant refuses service let the'L. C or Police swear an affidavit to that effect as well-

He clearly wanted a proper and effective service on the defendant even where he might have reiuseci service- He only gave gaidance of an effective service. Failure to follow the method he proposed could not constitute an error apparent on the face of the record provided that there was evidence of a proper and effective service on the defendant. There would have been an error apparent on the record if there had

I9

been no evidence of proper and effective service on the defendant. h "this case there is evidence that that was effected on the defendant's lawyer who accepted service".

with the greatest respect, as lhave alreadv said in this judgment, there was no evidence on record that the defendant was served, Order '17 of the\_ c. P. R provides that where summons have been served on the defendant or his agent or other person on his behalf, the serving officer, shall in all cases, make or annex or cause to be anrrexed to the original summons an affidavit of service stating the tirxe when and the manner in which the summons was served and name and address of the person, if anv, identifving the person served and witnessing the deliverV of the tender of the summons. Tte\_UqV!slons of this rule is mandatory. lt was not complied with in the instant case. what the rule stipulates about service of summons, in my opinion, applies equallv L0 servlce of hearing notices.

There was no affidavit of service on the record. The allseirce of si;cli afficlavit leads inevitably to the conclr-rsion that the defendant was not properlv sefved with the

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hearing notice before the suit was heard in his absence. The point is that there was no evidence that the defendant was served at all, not that he was not served bv the special nlode of service prescribed bV Lugayizi, J., which would rrot trave been an issue if the defendant was normallV served as required by the C. P. R.

What I have sald in thls judgment disposes of all the groLrnds of appeal, which should succeed. ln the result ^I would allow this appeal with costs here and'in the Court of Appeal. Costs in the High Court should abide the result of the trial.

I wor-rld set aside the order and judgment of the Court of Appeal and restore the order of the High Court settlng aside the judgment of Lugavizi, J., and order that the suit which gave rise to this appeal should be tried de novo by the High Court on a date notified to both parties.

As other members of the Court agree, it is ordered in those terms.

2l

Dated at Mengo this 21st Co b day of January, 2005

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$\epsilon_{\rm c}=-\epsilon_{\rm c}$

0. Oder.

JUSTICE OF THE SUPREME COURT.

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

ODER, TSEKOOKO, KAROKORA, MULENGA (CORAM: AND KANYEIHAMBA. JJ. S. C.)

#### NO. 6 OF 2004 CIVIL 為巴萨尼亞區

**BETWEEN**

EDISON KANYABWERA 111111111111111111111111111111111111

### AND

# PASTORT TUMWEBAZE ....................................

[Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ; Okello and Engwau JJ. A) dated 5^th April, 2004 in Civil Appeal No.75 of 2003]

# JUDGMENT OF TSEKOOKO, JSC.

I have had the benefit of reading in draft the judgment prepared by my learned brother, Oder, JSC and for the reasons I shall state presently I agree with his conclusions that this appeal ought to succeed.

The facts of this appeal are set out in the judgment of my learned brother. Like him, I shall also refer to the appellant as the defendant and the respondent as the plaintiff.

On 10/11/98, the day of hearing the suit, Mr. Akampurira, counsel for the plaintiff addressed court thus:

"hir. Kabyesiza for the defendant absent and the defendant is not present either. They were served and I have an affidavit of

ervice and a copy of the summons they endorsed. Can we proceed exparts under Order 9 rule 17 of the CP Rules.

I am satisfied that the defendant's advocates were Court: served with today's hearing notice. Since they have not turned up or given their explanation of their absence or that of their client. I assume that both of them are no longer interested in being present during the hearing of this case. This case will therefore proceed ex-parte."

These passages should be read in the context of the record as a whole. Thus about seven months earlier, on 23/3/98, the same trial judge deemed affidavit of service for hearing on 23/3/98 to be unsatisfactory. So he ordered for fresh hearing notice to issue for service on the defendant.

Although the above quoted order is brief, the only reasonable conclusion I can draw from the two passages is that there was evidence of satisfactory service on counsel for the defendant.

The trial judge has been criticised for not indicating on the record that he had physically sighted and handled the copy of the hearing notice which had been served on the defendant's counsel and the affidavit of the process server. However on 23/3/98 when the judge ordered for a fresh service he did not write that he had looked at the hearing notice nor at the affidavit of service. He wrote that

"The affidavit of service is unsatisfactory" This implies that he read the afridavit. My own understanding of the record is that although the learned trial judge was brief in that he omitted to indicate that he

$\overline{2}$ had in fact sighted and perused both the hearing notice and the affidavit of service to satisfy himself about what Mr. Akampurira stated the judge should be presumed to have seen the documents. Appellant's counsel has made a mountain out of this. The procedure adopted by the learned judge though it lacks details, it alone would not, in my opinion, be sufficient to justify setting aside his judgment. In the absence of any obvious wrong, it is legitimate to presume that when the judge stated that he was satisfied that the defendant's advocates were served he must have seen the two documents. I am satisfied that the trial judge must have seen both the hearing notice and the affidavit of service of which Akamparira announced in open court that he was in possession. These documents could have been misplaced or lost subsequently. Careless keeping of court records by court registry staff, which must be deprecated in no uncertain terms, is not peculiar to this case. With respect I would, therefore, not go along with the view that the learned trial judge proceeded with ex parte hearing without satisfactory proof of service of hearing notice. I therefore agree with the Court of Appeal in so far as that court held that there had been effective service of the hearing notice on the defendant's counsel. But that is as far as 1 can go, on that aspect of this appeal.

$\frac{d\hat{r}}{d\hat{r}} = \frac{1}{\hat{r}^2}$

I think, and with respect, that the learned trial judge made an error of a different nature which would justify setting aside his judgment. Counsel for the plaintiff applied for the order for ex parte hearing knowing very well that only one witness was present. This he announced in open court after the judge had granted the order for ex parte hearing of the case. He boldly announced that "I have one witness" As this is a case which had been fixed for hearing for two days, I would have expected the learned judge to ascertain from the

plaintiff and his counsel whether they would call only that witness or other witnesses would appear later in the day or the following day before receiving evidence of the only available witness. Alternatively as the judge had established that service was effected on defendant's counsel and since the plaintiff did not have all his witnesses, the judge could have ordered for personal service on the defendant. On the facts it is clear that the plaintiff and his counsel were not quite ready to prosecute the suit. Yet after obtaining the court order to proceed ex parte and after the plaintiff's testimony on the same day $(10/11/1998)$ counsel for the plaintiff sought and was granted adjournment to enable him get other witnesses. That day the rest of the witnesses for the plaintiff were absent. Yet the court obligingly granted the application for adjournment and adjourned the hearing of the case to $1/2/1999$ , giving a space of two a half months. Indeed even on 1/2/99, plaintiff's counsel sought and was granted another adjournment to call a fourth witness. Eventually the hearing of the case could not be concluded until 16/8/2001!! I do not believe that Order 9 Rule 17 (1) (a) is intended to allow a party to have indefinite ex parte hearing without making the other party aware of this.

Order 9 Rule $17(1)$ (a) reads as follows:

"Where a plaintiff appears and the defendant does not appear when the suit is called on for hearing:

(a) If the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex parte."

$\mathcal{L}_{\epsilon}$

A trial judge is given discretion in deciding whether or not to grant ex parte hearing. Granting ex parte hearing should in my opinion enhance expeditious disposal of a case but not to give further delay.

As ordering ex parte hearing is discretionary it ought to be granted with caution. Therefore it ought not to be granted to a party which is itself not ready as was the case here.

I think that Rule $17(1)$ (a) should be read together with the next rule 18 which states:

"Where the court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non - appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance"

Whilst courts should promote expeditious hearing and disposal of cases and therefore should not have their work delayed by absence of parties, or their witnesses, presiding trial judges would do well to be aware that Rules 17 and 18 give court discretion to do justice.

I think that in circumstances where a party is represented and his lawyer for unknown reason does not appear though served, the first option ought to be for the absent party to be served personally. In my opinion this should have been the proper course to have been taken in this case.

$\ddot{\mathbb{S}}$

ex, the meanse () record in this current for a flat ing whose commenced country continues much a semificient community and adjournment. This meths used to party up to use for a setting of the case to start must be read, as a bused and, in it not a filter cause for adjournable the meaning of the subset of an experience reading planted as parte, on account of ancerice of intriesses ... the probability of the probability wanted the case to be need, i.e. cannot not value one to the bearing. to install the program to the singulation to the program of the OWN . Annessel It. Makes of the set to me. ". Whole . . . . under nearing I think.

In my considered opinion this would have been a legitimate ground for setting aside the expante judgment but not the alloyed absence from court record of the hearing notice and the process server's affidavit. It is decause of these reasons and I agree that die appeal ought to succeed.

Further more, I think that Okumu Wengi, J., errea in reviewing his ruling assistant in a real with the Count of Appeal that there was no error on the record merely because the affidavit of service was missing. The defendant should have appealed against the first ruling given by Okumu Wengi, J., Instead of approvide of review.

I would allow the appeal with costs in this Court and the Court of Appen. I would order with custs in the old court out addide the results of the retrial.

Dellinger et menge till 2190 sig stellung 195

/Sein e of the Suprame Cause

from the u,ord of mouth of counsel. The omission to record what satisfied him, in mv lieu,, should not be construed as though he was not satisfied on proper rrncl lltr tul grounds. Similarly, I am not inclined to hold that merely because no attldavit of service was found on the court file subsequently, it means rhat none \\'as ever done or that the defendant was not served with the hearing notice properly or at all.

I aur, howcr,cr', in aslrccurcut with my learned brother, Tsekooko JSC, that the learned tnal judge clid not exercise his discretion judiciously when after r.rrderirrg lhc cr.rsc to procccd L'x pu'le because the defendant was absent that da1'. h.. pr'rnlittL'd the hcarirrg to be adjourned from day to day without any further notice to the defendant as if he was barred from the proceedings. The rule pennittir.r g ex pcu'te hearing when a defendant does not appear is intended to discourage a defendant from frustrating a plaintiff who is ready to present his case tbr no good cause. It is not intended to bar the defendant who has defended the suit from further participation. Although in this appeal the parties did r.rot address this point, in my opinion, the error is of suffrcient gravity to render the proceedings a mistrial, and to justify setting aside the ex parte .ir-rdgn-rent.

D.\TED at \lengo thi5l/' day of \*<-A-z ,7 ²⁰⁰⁵

/";:-'- (

t

J. N. \4ulenga Justice oi the Sr.rprerne Cor-rrt

## IN THE SUPREME COURT OF UGADA **AT MENGO**

### (CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA JJ. S. C.)

#### CIVIL APPEAL NO. 6 OF 2004

#### **BETWEEN**

#### EDISON KANYABWERA::::::::::::::::::::::::::::::::::::

#### AND

#### PASTORI TUMWEBAZE:::::::::::::::::::::::::::::::::::

(Appeal from the judgment of the Court of Appeal (Mukasa-Kikonyogo DCJ, and Okello and Engwau JJ. A) at Kampala, in Civil Appeal No. 75/03 dated 5^th April `03)

#### JUDGMENT OF MULENGA JSC.

$\bullet$

I have read in draft, the judgments prepared by my learned brothers Oder and Tsekooko JJ. S. C. I agree with both that the appeal should succeed and I concur with the orders proposed by $\Theta$ der J. S. C.

Having regard to the circumstances of this case as reflected in the record I would not be inclined to hold that the trial judge, Lugavizi J., erred when on 10.11.98 he held that he was satisfied that the defendant's advocates were served with the hearing notice. In view of the fact that on the previous appearance on 23.3.98 the same judge had held that the affidavit of service was unsatisfactory, I think it is more probable that on the latter occasion he was satisfied from the affidavit of service mentioned by counsel rather than

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA

#### AT MENGO

ODER. TSEKOOKO, KAROKORA, MULENGA AND $(COR.4M)$ : KANYEIHAMBA

#### CIVIL APPEAL NO. 06 OF 2004

#### BETWEEN

#### EDISON KANYABWERA: $\cdots\cdots\cdots$ APPELLANT $\cdots\cdots\cdots$

$A$ $N$ $D$

PASTORI TUMWEBAZE: **RESPONDENT** $\cdots\cdots\cdots$ ..........

(Appeal from the judgment of the Court of Appeal in Kampala {Mukasa-Kikonyogo, DCJ, Okello and Engwau, JJA.} dated 05-04-04, in Civil Appeal No. 75 of 2003).

#### JUDGMENT OF KAROKORA, JSC:

I have had the benefit of reading in advance the draft judgment prepared by my learned brother, the Hon. Justice A. H. O. Oder, JSC, and I agree with his conclusions that the appeal ought to be allowed with costs to the appellant here and in the courts below.

In the result the order and judgment of the Court of Appeal must be set aside and the order of the High Court setting aside the judgment of Lugavizi, J, is as the down no my evidence that service of Court process had been effected.<br>hereby restored, It is ordered that the case which gave rise to this appeal must be heard inter parte de novo by the High Court.

Dated at Mengo this: dav $of:$ $2005.$ 4. N. KAROKORA

JUSTICE OF THE SUPREME COURT