THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HIGH COURT CIVIL APPEAL NO.48 OF 2000
(ARISING FROM MPIGI CIVIL SUIT NO.10 OF 2001)
EDMOND BITALO t/a }:::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
THREE ANGELS NURSERY
VERSUS
1. MARY LUWEDDE }:::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
2. GRACE NAKABITO
BEFORE: THE HON. MR. JUSTICE E.S. LUGAYIZI
JUDGEMENT
This judgment is in respect of an appeal which was lodged by the appellant against the ruling of a Magistrate Grade I (Her Worship Sarah Kolya Mponye) which is dated 8th May, 2000. In that ruling the said Magistrate dismissed the appellant’s application for orders, among others, to set a side an exparte judgment and decree and to give the appellant unconditional leave to appear and defend Mpigi Civil Suit No. 10 of 2000. The appellant was aggrieved by that ruling and as a result he appealed against it.
Before Court gets into the merits of the appeal it is pertinent to understand its background which is briefly as follows. On 29thFebruary 2000 the respondents (as administrators of the estate of the late Brandina Nalubege Maaso) filed Civil Suit No. 10 of 2000 at Mpigi Chief Magistrate’s Court. That suit was against the appellant. Under it the respondents claimed a sum of shs. 900,000/= which they said the appellant owed them on account of rent for commercial residential premises at Maganjo. After filing the said suit, the respondents wrote a letter dated 14th March 2000 to the Chief Magistrate of Mpigi in which they prayed for judgment on account that when they served the appellant with summons ‘in summary suit on plaint”, he did not respond by applying for leave to defend the suit. On the same day, the Chief Magistrate responded to the respondents’ letter by entering judgment against the appellant in Mpigi Civil Suit No. 10 of 2000. Subsequently, the respondents’ advocate Mr. Kaala extracted a decree against the appellant for the payment of sum of shs. 900,000/=, an eviction order and costs. The respondents were on the verge of executing the decree when the appellant made an application to set aside the exparte judgment and decree and for unconditional leave to defend the suit. Eventually, the learned Magistrate (Her Worship Sarah Kolya Mponye) heard the application and in her ruling dated 8thMay 2000 she refused to grant it. She upheld the exparte judgment and decree-; and ordered the execution of the decree to continue. As earlier on pointed out, the appellant felt aggrieved by that ruling. On 15th June 2000 he obtained leave to appeal against the ruling. Later on, he filed the appeal which is the subject of this judgment. That is the background to the appeal.
In his memorandum of appeal the appellant cited five grounds which Court will not reproduce here because, in essence, they raised only two issues, namely,
1. Whether the learned Magistrate erred when she held in her ruling dated 8thMay 2000 that the appellant was served with summary suit on plaint?
2. Whether the learned Magistrate erred in law when she held in her ruling dated 8 May 2000 that the appellant’s application did not raise triable issues?
At the time of hearing the appeal Mr. Nuwagaba represented the appellant and Mr. Arthur Katongole represented the respondents. Court will now proceed to dispose of the appeal in the light of the above two issues, the submissions of counsel, the evidence on record and the law.
With regard to the first issue, Mr. Nuwagaba submitted that the learned Magistrate erred to rule that the appellant was served with summons “ in summary suit on plaint” when the affidavit that the respondents relied upon to prove service was fundamentally defective. In Mr.
