Mukasa v Matovu (Civil Suit 354 of 1988) [1993] UGHC 56 (26 August 1993)

Full Case Text

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. OF 1988

VIOLET K. MUKASA APPLICANT/JUDGMENT DEBTOR

### V E R S U S

ERLZAFANI MATOVU ............................ RESPONDENT/DECREE HOLDER.

BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

# RULING

This application was instituted under S. 1.01 of Civil procedure Act and Rule of Court Vacation Rules and 0. ^8 Rules 1,2 and 2 of Civil Procedure Rules. The application itself is vague but submissions show that it seeks for an order that a certificate of urgency be granted for hearing in vacation application to set aside exparte judgment in HCCS No. 35^ of 1988.

The respondent was the plaintiff in the suit. The applicant was the defendant. The suit was insituted on 11th April, 1988. From the court record the applicant filed in court Written Statement of Defence on 1^th June, 1988 through the firm of Messrs Mugerwa & Matovu Advocates. It appears that later the same advocates were unable to contact the applicant so they withdrew from the case.

On 25th March, 1992 an order for substituted service was made by Okello J. Substituted service was duly effected by publication in New Vision of 2^th April, 1992 and Munno alias Munno Lwamukaga on 18th April, 1992. (l should remark here that it appears from perusal of the file the applicant must have been in contact with her counsel when Written Statement of Defence was filed). The • case was subsequently heard exparte and judgment given by Berko J. on 26th March, 1993\* A decree was,obtained. When the respondent sought to execute the decree, the applicant through her. same advocates (Mugerwa & Matovu) filed Notice of Motion to set aside the decree and exparte judgment. Hence the present application.

............. ............./2

The present application contains two main grounds. These

are (Verbatim):

- $111.$ That there is evidence that the plaintiff intends to dispose of the property at the earliest •pportunity. - $\mathcal{L}$ That there is evidence that the defendant applicant were never served the exparte judgment against the defendant and order of attachment if left to stand will occasion a miscarriage of justice to the defendant".

The application is further supported by two affidavits sworn by Mr. John Kizito Kaggwa. The first is undated but could have been sworn on 11th August, 1993. The additional was sworn on 17th August, 1993. I may add that the deponent is an advocate in the firm of Messrs Mugerwa and Matovu Advocates who represented $\cdots \rightarrow \cdots$ the applicant initially and at the hearing of this application. And as observed earlier must have been in contact with applicant when they entered appearance and filed Written Statement of Defe-

nce.

During the hearing Mr. Kaggwa, learned counsel for the applicant relied on his aforesaid affidavits and maintained that as applicant was never served with process before exparte judgment was obtained, this would lead to miscarriage of justice. He further submitted inter alia that there was no effective service

on the respondent. He challenged the application to attach plots Nos. 95, 112 and 113 to be improper because the suit sought specific performance for Plot No. 96 Block 213. To this last submission, Mr. Rezida for the respondent submitted, and I agree with him, that whereas the claim was in relation to Plot 213, the other Plots (i.e. 95, 112 and 113) are included in the application for execution of the decree for purposes of execution proceedings to realise decretal sum of money.

I also agree with Mr. Rezida that in so far as costs and general damages are concerned the Currency Reform Statute of 1907 does not affect the same. But in my view the Statute affects the amount accruing as interest on the figure of Shs.

$...$ /3

3,000,000/= since the sum was paid to the applicant before 18th May, 1987, the date when the Statute came into existence. In this respect Mr. Kaggwa's submission is upheld.(on interest). Mr. Rezida opposed the application for certificate of urgency because no urgency was disclosed in the application itself. Actually as I have already indicated the application is vague. And though date of sale or auction was scheduled as 25th June, 1993 and 15th July, 1993 no application for stay of execution was made to show urgency.

On the other points, Mr. Rezida submitted that since counsel for applicant had knowledge of the suit as evidenced by their filing Written Statement of Defence and entering appearance therefore counsel's claim that he knew of existance of..suit through court is false. I agree. I also agree that Mr. KaSgWa's affidavit of 11th August, 1993 (paras 5 and 5) that the applicant was never served or that his firm was not served are false,...,,\_\_\_

Paras 5 and 6 of Kaggwa's affidavit sworn on 17th August, 1993 are not helpful either. No explaination is offered why the applicant was allegedly in London during April, 1992, when there was substituted service. I wonder why the applicant nor her attorney has not sworn affidavit to explain. Nor does the affidavit of Mrs, Rosemary Joyce Wanyama Wasswa sworn on 10th August, 1993 in support of Notice of Motion to set decree aside help the present application in as much as it does not explain when applicant went to England and what she is doing there. Neither Mrs. Wanyama nor Mr. Kaggwa state they could not have read the publications of substituted service.

Having considered all the submissions and affidavits I have alluded to in this ruling, in my view the only point in favour of the application is the calculation of interest at rate of ^0% on Shs. 3,000,000/= as from 1st April, 1987. Otherwise there are no merits in rest of the arguments as I .... A

am of the view that failure to defend the suit appears to have been deliberate.

4 -

But even with the interest on Shs.. 3,®00,000/=, 'that is not being challenged in the Notice of Motion seeking to set exparte judgment aside. That is a matter which can be dealt with under Section 101 and 102 of Civil Procedure Act if the applicant takes appropriate action.

Concluding I hold that there is no case made out for certificate of urgency, for the main application to be heard in vacation. The present- application is therefore dismissed. The applicant shall pay the taxed cest of this application.

. j.w/n; '\*tsekooko

JUDGE 26/8/1993.

27/8/1993 at 8.58 a.m. Kaggwa for applicant. Rezida for Respondent. Ssensonga court clerk. Ruling delivered in the presence of the above.

> *c -* . TSEK00K0

JUDGE

*/f*

27/8/1993.