THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF FORTPORTAL AT FORTPORTAL

MISCELLANOUS APPLICATION NO.10 OF 2023.

[ARISING FROM CIVIL SUIT NO.076 OF 2023]

BIRUNGI DAPHNE=====================================APPLICANT

VERSUS

DOVICO=========================RESPONDENT

PLAINTIFF’S WRITTEN SUBMISSION

Your Worship, the Applicant brought this application by Notice of Motion under Articles 2, 20,
28 (3), 44 (c) and 126(2) (e) of the Constitution, Order 9 rule 12 and 27, Order 52 Rule 1 & 3 of
the CPR and Section 98 of the CPA for orders that exparte judgment entered in favor of the
Respondent in Civil Suit No.076 of 2021 against the Applicant be set aside for good cause, the
suit be reinstated and heard inter-party on its merits, an order for stay of execution if commenced
be issued and costs of the application be provided for.
BACKGROUND
Your lordship, to begin with, the Respondent sued the Applicant in civil suit No.076 of 2021 and
the Applicant was served with summons however failed to turn up on several occasions for the
hearing of the matter and thus the suit was heard and determined exparte and an exparte
judgment entered on 10th January 2023 hence this Application.
The responses to the application are contained in an affidavit in reply deposed by Awel Anna in
the capacity of a Managing Director of the Respondent Company.
Your Worship, the issue for determination before this Honour Court is;
1. Whether the Applicant was effectively served with the hearing notice?
2. Whether the Exparte Judgment and execution in Civil Suit No.076 of 2021 should be set
aside and the suit reinstated?
Your Worship, under section 101, 102 and 103 of the Evidence Act Cap 6 provides that the
burden of proof lies on the person who alleges and wants court to believe them and grant

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judgment in their favour. In civil case this burden lies on the Applicant who must prove the same
on balance of probability which is the required standard.
RESOLUTION OF ISSUE
1. Whether the Applicant was effectively served with the hearing notice?
Your Worship, the Applicant in his affidavit in support of the Notice of Motion under paragraphs
6 and 7 averred that he never knew of the court hearing date of the 9 th day of January 2023 and
even if he would not attend since he was very sick and furthermore under averred that upon his
recovery, he contacted the court clerk on 16 th January 2023 who informed him that the matter
was coming up on 17th January 2023 and he informed his lawyer.
Your Worship, the Applicant seemed from his averments under his affidavit in support to be
aware of the hearing date of the matter and cannot be precluded to deny the fact of it. He even
asserts that he informed his lawyers in respect of the same.
Therefore, he cannot argue that Respondent did not serve him with the hearing notice yet he has
his lawyers and had earlier contact the clerk who informed him of the date of the matter. This is
also rebutted by the Respondent’s affidavit in reply under paragraph 10 whereby the
adjournment of court hearing to the 9th day of January 2023 was done in the presence of the
Applicant and his alleged sickness was never communicated to this Honourable Court or the
Respondent’s lawyers but was rather a strategy adopted to defeat justice by the Applicant.
In REMCO LTD. VRS. MIISTRAY JADBRA LTD (2002) (1) EA Page 233 that;
“If there is improper service of summons to enter appearance, the resultant exparte judgment is
irregular and must be set aside by court.”
According to the decision of UTC V. Katongole & Anor. (1975) HCB 336 it was held that;
“Proper effort must be made to effect personal service, but if it is not
possible service may be on an agent.”
Your worship, by virtue of the above facts it’s my view that it has been demonstrated that the
Applicant was aware of the date of the matter having asked the court clerk and he even informed
the same to his lawyers though they did not turn up on the said date.
As per the above submission we reiterate that the Applicant was fully aware of the date fixed for
the hearing of the matter and thus this honourable Court was not misled to determine the suit
exparte and enter judgment in the favor of the Respondent.

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Your Worship, it is true and important to note that the right to a fair trial in civil matters is
guaranteed by article 28 (1) of The Constitution of the Republic of Uganda, 1995. In the
determination of civil rights and obligations, a person is entitled to a fair, speedy and public
hearing before an independent and impartial court or tribunal established by law. Entailed in that
right to a "speedy hearing" is the right to a trial within a reasonable time, often termed the right
to be tried without undue delay or the right to a speedy trial. For the realization of this right, all
parties, including the courts, have a responsibility to ensure that proceedings are carried out
expeditiously, in a manner consistent with this article. The overriding objective under article 28
(1) of The Constitution of the Republic of Uganda, 1995 and The Civil Procedure rules in
general is that courts should deal with cases justly, in a way which is proportionate to the amount
of money involved, the interests and rights involved, the importance of the case, the complexity
of the issues and the financial position of each party.
In the instant case, the Applicant infringed on this right by failing act through lawyers or himself
by notifying court of his condition. And thus, can allege that he was denied of the same.

2. Whether the Exparte Judgment and execution in Civil Suit No.076 of 2021 should be set
aside and the suit reinstated?
Your worship, the second question for determination therefore is whether Applicant has shown
sufficient cause to warrant setting aside of the exparte judgment. I will refer to the Court of
Appeal decision in LEBEL (EA) LTD V. EF LUTWAMA (1986) HCB, holding that;
“The purpose of a trial is to enable the parties to put their case properly and broadly so that
court may hopefully come up with a fair decision on the crucial issues in the case.”
In S. KYOBE SENYANGE VS. NAKS LTD (1980) HCB 31, it was held by Hon. J. Odoki (as
he then was) that before setting aside an exparte judgment the court has to be satisfied that not
only has the defendant had some reasonable excuse for failing to appear but also that there is
merit in the defence case.
The position was reaffirmed in NICHOLAS ROUSSOS VS. GULAM H.H. VIRAN & 2
OTHERS S.C. Appeal No. 3 of 1993, which discusses the principles upon which the discretion
of the court to set aside exparte orders is discussed and therefore needs to be secured as per
holding in Little Sisters of St. Francis Madera Convent v. Oling Nicholas Misc. App. 58/2010.

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Your worship, we further submit that it in the interest of Justice and equity that this Application
for stay execution, setting aside the exparte judgment and reinstatement of the suit is not granted
to enable the Respondent realize the fruits of this judgment because of the Applicant’s conduct
of absenteeism leading to constant adjournments and this application is also misconceived and
bad in law.
Furthermore, this Honourable Court is vested with unfetter discretion under section 98 of the
Civil Procedure Act Cap 71 to make orders on such terms and conditions as it thinks just. We
therefore invite this honorable court to invoke its powers under the above stated provision to
dismiss this application with costs and the Respondent be allowed to carry out execution.

In conclusion, I pray that the instant application be dismissed with costs.

We so humbly pray.

Dated at Lira on this ______________day of _________________ 2023.

_____________________________________
M/S AKOKO, OJOK, OMARA & CO. ADVOCATES
(COUNSEL FOR THE RESPONDENT)

Drawn and filed by: -

M/s Akoko, Ojok, Omara & Kizito Co. Advocates;
Plot 15, Kwanza Road, 1st Floor Quest;
Fueling Station Building,
P.O. Box 349, Lira (U)
Tel:- 0393194876/0775041197