SETTING ASIDE AN EX-PARTE JUDGMENT IN UGANDA

IS IT POSSIBLE TO SET ASIDE AN EX-PARTE JUDGMENT?

 Often times in my interactions with law students, I have been asked questions like; what can I do for my client if the other party obtains an ex parte judgment in my absence? To clear the inquisitiveness, I have published the approach for this situation; Order 21 rule 1 requires that in suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates. However, it’s trite to note that in certain instances, only one party could be available in court. A judgment once pronounced in such a situation is referred to as an ex parte judgment. Court may decide to proceed with for instance the plaintiff’s matter when the defendant refuses or by any other reason, fails to enter appearance in courts of law. 

 A judgment per se, is construed to mean the statement given by the judge on the grounds of a decree or order . According to the black’s law dictionary, Ex Parte judgment is the type judgment that is given by the court when the case was only heard from one side. In Rosette Kizito Vs Administrator General and others, it was held that the application for setting aside of judgements should not be granted as a matter of right but only after examining the circumstances of each case. This shows the solid ground upon which an ex parte judgment is built such that there is a standard of proof required for an ex parte judgment to be set aside. 

In Moshi Textile Mills V. De Voest Makame J in defining “ex parte judgment” stated that it is a judgment given where there is no appearance by the party against whom it is given. For some reasons, a defendant may not be present in court at the hearing of the matter but when a judgment is given in such circumstances owing to the failure of the defendant to enter their defense, such an ex-parte judgment obtained by default of defense is by its nature not a judgment on merit and it is only entered because the party concerned has failed to comply with certain requirements of law . This was clearly pronounced in Henry Kawalya vs J. Kinyankwazi , where court held that it has the power to revoke an ex-parte judgment, which is not pronounced on merit of the case or by consent but entered especially on failure to follow requirements of the law. 

Musa Ssekana defines an ex parte judgement by referring to where a defendant, having been served with a plaint and summons, fails to file a defense within a specified period of time and judgment in default is passed and it’s entered upon the defendant where the claim is liquidated. Some often refer to it as default judgment or ‘over the counter judgment’ since it’s obtained without hearing. According to order 50 rule 2, the ex parte judgement is entered by the registrar of courts. Proceeding from order 9 rule 20 where the defendant does not appear when the suit is called for hearing, the suit may proceed ex parte. 

 The authority for and to set aside an ex parte judgment is visible under Order 9 rule 27. It provides that; “in any case in which a decree is passed ex parte against the defendant, he or she may apply to court by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the summons where not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside from such a defendant, it may be set aside as against all or any of the defendants also.” 

Similarly, order 9 rule 12 is to the effect that where judgment has been passed pursuant to any of the proceeding rules of this order, or where judgment has been entered by the registrar in cases under Order 50 of the rules, then court may set aside or vary the judgment upon such terms as may be just. The registrar retains power under Order 50 Rule 2 in uncontested cases and in cases in which parties consent to judgment being entered in agreed terms that in such cases, judgment may be entered.

  Improper service of summons. Court pronounced in Remco ltd vs. Miistray Jadbra ltd , that if there is improper service of summons to enter appearance, the resultant ex-parte judgment is irregular and must be set aside by court. This was also emphasized in the case of Engineering Tradelines ltd vs DFCU Bank ltd where court agreed that denying a party the opportunity to be heard shall be the last resort of court and an ineffective service to appear for hearing is weighed to be a denial of being heard. This is done in the interest of justice to preserve the cardinal principle of “Audi alteram partem” which requires hearing both sides. It is possible that court may set aside an ex parte judgment but the prayers of an applicant seeking such must be legally justified and supported as stated by Manyindo DCJ, in Departed Asians Property Custodian Board v. Issa Bukenya 

Sufficient cause: The principles governing the determination of what amounts to sufficient reason or cause for setting aside an exparte decree under O.9 r 27 have been severally enunciated in the jurisprudence. In S.C. Civil. Application No. 6 of 1987 Florence Nabatanzi v. Naome Binsobedde (cited with approval in Hikima Kyamanywa v. Sajjabi Chris CACA No. 1 of 2006), it was held by the Supreme Court that “sufficient reason or cause depends on the circumstances of each case and must relate to inability or failure to take a particular step in time.” Similary, Karooli Mubiru & 21 Others v. Edmond Kayiwa & 5 Others (1979) HCT 212(Court of Appeal) explained that a court of law cannot sanction an illegality once brought to its attention. It further held that “in any case the fact that a judgment had been satisfied and execution had been completed is not a good reason for not quashing a judgment which was a nullity since an execution completed under such a judgment was void ab initio.” 

 Therefore; this is How To Proceed; A party intending to set aside an ex parte judgment proceeds by notice of motion and an affidavit in support. It is brought under Order 9 rule 12 &27 of the Civil Procedure Rules. The affidavit must establish a case that he was not duly served with the summons or that the service was improper and sufficient reason for non-appearance in court for the hearing as was visible in the case of Buso Foundation Ltd v Bob Mate Phillips & Anor . Order 9 rule 28 requires that the notice of motion to set aside the decree must be served on the opposite party otherwise the decree shall not be set aside. By way of appeal; the applicant may also proceed by way of appeal against the previous decision in higher court or seek for reinstatement of the case in the same for hearing. 

In the case of Marisa v. Uganda Breweries where a suit had been dismissed for non-appearance of the plaintiff, the applicant’s counsel proceeded through a notice of motion seeking a reinstatement of the suite. Byamugisha Ag. J. held that the applicant had to satisfy the court that there was sufficient cause for non-appearance. The applicant had delayed for one year and some months to file his application and almost another one year to set it for hearing; all this showed that the applicant and his Counsel were not serious. Court emphasized that it shall always consider the merits of case to set aside ex parte judgment in every case. 

In conclusion therefore, an ex parte judgment can be set aside in the circumstances and following the procedure as laid above.