Asiku v Victoria Equipment Limited (CIVIL SUIT No. 438 OF 1989) [1992] UGHCCD 2 (20 April 1992)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.438 OF 1989

Hon: Justice Tschoho'

$\mathcal{Y} = \mathcal{X}$

ASIKU ROMANO DRATRUTRISSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS

**VERSUS**

VICTORIA EQUIPMENT LIMITED: :::::::::::::::::::::::::::::::::::

BEFORE: THE HONOURABLE MR. JUSTICE C. M. KATO

## RULIN C

This ruling refers to a preliminary objection raised by Mr. Donge Upari who appeared for the respondent in this matter. The objection was in respect of the notice of motion dated 3.6.91 by which notice of motion the applicant seems to be seeking for the order of this court to set aside an ex-parte judgment entered by this court. The substance of the objection is simply that the notice of motion does not conform with the provisions of Order 48 rule 3 of Civil Procedure Ruler which require that the grounds upon which the notice of motion is based should be outlined in the application. On his part Mr. Kaala the learned Counsel for the applicant maintained that the grounds upon which the application was founded were mentioned in the application.

Looking at the application as it is one is left in no doubt that. what the learned counsel for the applicant calls grounds of the application are in fact prayers. The notice of motion reads as follows:-

## NOTION OR WOLTO

"Take notice that this Honourable court will be moved on the 26th day of Jun, 1991 t 9.00 O'clock in the fore/afternoon or so soon as the counsel can be heard on behalf of the applicant/ defendant for an order:-

- 1. That the applicant/defendants were not served with summons to Enter Appearance. - 2. That the ex-parte judgment and decree were irregularily entered by the Registrar, and not in accordance with the law and practice laid down in the Civil Frocedure Rules. - 3. That the Applicant Defendant be allowed to file a Written Statement of Defence, so that the plaintiff proves his case as required by law.

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- 4. That Counsel for the Applicant/Defendant will read in support of this application an affidavit sworn in by one Gunnar that ien the General Manager of the Defendant Company. - That this application in mode under Order 9 $5.$ rules 9 and 24 of the Civil Procedure Rules. - That the costs of this application and further $6.$ costs incidential thereto be provided for."

The wording of the above notice of motion does not mention anywhere that the above paragraphs are grounds upon which the application is being based. A close examination of the notice of motion shows that the 6 paragraphs outlined above are simply prayers upon which the court is being requested to make an order, those paragraphs are each to be read along with the expression: "This Honourable court will be moved.................................... behalf of the Applicant/Defendant for an order: $"$ . It is that expression which gives meaning to each of the 6 paragraphs as it relates to each of them. That being the case it cannot be correctly said that the 6 paragraphs are grounds of the application. A well drafted notice of motion normally consists of 2 main paster the first being the order or orders sought for and the second part being the grounds why the application is being made; the main points in each of these two parts should be numbered seperately, e.g. if the present application was properly made paragraphs 3 and 6 would possibly have formed the first part of the application and would have been numbered as 1 and 2; the other paragraphs would have probably formed the second part and would have been numbered as 1, 2, 2, otc. It might be pointed out here that among the 6 paragraphs none ask this court to set aside the ex-parte judgement.

Considering the notice of motion generally, I wet agree with Mr. Donge Upari when he says that this application seriously of onds the provisions of Order 48 rule 3 of Civil Procedure Rules. The notice of metica is materially and incurably defective and it cannot be sustained. The notice of motion which is dated 3.6.91 is accordingly struck out with costs to the respondent.

$1\sqrt{t_2}$ C. M. KATO JUDGE 28.4.1992