THE UGANDA PENTECOSTAL UNIVERSITY

GROTIOUS SCHOOL OF LAW

COURSE: LLB 111 & IV

COURSE UNIT: CIVIL PROCEDURE 11
GROUP PRESENTATION
LECTURER: CSL AKONYA KEVIN
MEMBERS:
1. NEJESA ALICE
2. BUYUYA IBRAHIM
3. NANFUKA CHRISTINE
4. KATUSABE PETER JUNIOR
QUESTION:
How can we move court in a matter where the defendant has failed to
comply under Order 36 r.3, 4 and subsequently a default judgement
has been entered?
The defendant wants audience in court, he is prejudiced by the orders
of the court, he claims he was not served and he claims he is
confident if given room he could easily defend the case
Advise the defendant on how to move court, proceed and draft the
necessary pleadings.

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Section 2 of the Civil Procedure Act Cap 282; defines Judgement to mean the statement given
by the judge of the grounds of a decree or order. In order for a judgement to be valid, it mut be
announced by court of competent jurisdiction or a court that is properly constituted.
A judgement basically is the last activity of court in indication of the conclusion of Litigation.
A judgement of the court therefore has binding effects and must be complied with. This is as
per the case of Re Howard Amani Little (2006) CACA NO.32/2006. In another case of Hadkinson
V Hadkinson [1952] 2 ALLER 267, it was held that failure to comply with a judgement
constitutes a contempt of court.
A Default judgement therefore is a type of judgement referred to as ‘Over the Counter
Judgement’ since it is obtained without trial.
Default judgement is obtained whereby a defendant has been served with a Plaint but has
failed to file his statement of Defence within the stipulated period of time. It applies mostly on
cases of Liquidated Claims
It is the duty of the Registrar to enter Default Judgement as provided in O.50 r 2 of CPR
Under O.36 r 3 of CPR, it provides that; if a party commences proceedings by way of Summary
procedure and the defendant fails to apply for leave to appear and defend the suit within the
period fixed in the summons, the plaintiff is entitled to a decree for the sum claimed together
with interest and costs against the defendant
If the proceedings have been commenced by ordinary plaint and the defendant has failed to file
a defence as prescribed by O.9 r 5 of CPR, the plaintiff is required to file an affidavit within the
prescribed time under O.9 r 5 of CPR and the same will be scrutinized by the court before an
application for default judgement is allowed
In the case of Varley Alia V Alionzi John, HCCS No.157/2010; Madrama held that O.9 r 5 of CPR
is mandatory in that it requires the affidavits to prove two things namely, service of summons
and failure of defendant to file a defence within the time prescribed. The suit cannot proceed
without an affidavit of service on the record as envisaged by O.9 r 5 of CPR, Secondly, that
Interlocutory judgement cannot be entered unless there is compliance with O.9 r 5 of CPR. In
Uganda, the requirement under O.9 r 5 of CPR to file an affidavit of service upon the court
record is mandatory requirement. Service of Summons under O.9 r 5 of CPR is also not satisfied
by service of summons signed by the registrar only. Certain items are meant to accompany the
summons under O.5 r 2 of CPR. Under O.9 r 6 of CPR, it is provided that where the plaintiff
claims a liquidated demand, the court may pass judgement for the sum claimed in the plaint
together with interests and costs
Under O.5 r 7 of CPR, where the plaint is drawn claiming a liquidated demand and there are
several defendants of whom one or more files a defence on or before the day fixed in the
summons, and another or others of them fail to file a defence, the court may, subject to r 5 of

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this order, pass judgement as in r 6 of the order against such as have not filed a defence, and an
execution may issue upon such judgement and decree without the prejudice to the plaintaifff’s
right to proceed with the action against such as have filed a defence
In the case of Concern Worldwide V Mukasa HC Civil Revision No.1/2013, Wolaya H J held that
a default judgement is entered where there is proof of service and the defendant has not filed a
defence within the specified time
Under O.9 r 6 of CPR, where the plaint is for a liquidated demand, judgement will be entered
for the sums claimed.

How can we move court in a matter where the defendant has failed to comply under Order
36 r.3, 4 and subsequently a default judgement has been entered?
The defendant wants audience in court, he is prejudiced by the orders of the court, he claims
he was not served and he claims he is confident if given room he could easily defend the case
Below is the advise to the defendant on how to move court;
In the case where the defendant wants to seek relief after a default judgement has been
entered against under O.36 r 3 & 4 of CPR, He or she must file an application to set aside the
judgement
A party aggrieved can under provisions of 0.9 r 27 of the CPR make an application. The said
rules provide for setting aside of exparte judgement;
Important to note that the provisions of O.9 r 27 sets the conditions that must be proved by a
party who desires to set aside an exparte decree against him. The party must prove to court
either that;
1. The summons of the court were never duly served upon him; or
2. Was prevented by the sufficient cause from appearing when the suit was called for
hearing;
As a result, the court will weigh the said application and the affidavit in reply as filed by the
Plaintiff/Respondent and probably with the submissions filed before court to give its ruling o
the application filed by the Defendant/Applicant
If convinced by the reasons, the court will move ahead and allow the prayers in the application
and depending with the circumstances of the case, the court may even award the defendant
/Applicant costs of the Application
Nothing however stops court from allowing the Applicant’s Application further to condemning
the said applicant to pay the Respondent some costs, this is mostly where the court notes the
Defendant has raised material facts in his application can only be proved or disproved if the

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matter is reopened for hearing, but on the other had notes that the defendant was indeed
served with the summons or relevant notices or that the matter had proceeded on his mistakes
not related to the plaintiff.
A Party aggrieved by a default judgement equally has a window to move court under the
provisions of O.36 r 11 of the CPR. It provides that after the decree the court may, if satisfied
that the service of the summons was not effected, or for any other good cause, which shall be
recorded, set aside the decree, and if necessary stay or set aside execution and may give leave
to the defendant to appear to the summons and to defend the suit, if it seems reasonable to
the court so to do so, and on such terms as the court thinks fit.
The standard however is, the court must ascertain either the Applicant was not served or the
service was defective or there existed any other goods cause that made the Applicant to fail to
participate in the proceedings or honor the summons served upon him
The court will therefore allow the Applicant’s application and equally grant him leave to file his
statement of defence upon proving the above
In the case of Ahmed Zirondemu V Mary Kyamulabi [1975] HCB 337, the issue was whether a
confusion on the Part of the applicant was sufficient cause for setting aside exparte judgement.
In the case above, the advocate for the applicant was messed up by his clerk who mistakenly
wrote a wrong hearing date on his dairy, the same causing the counsel not to appear in court
for the hearing
The court went ahead and set aside the exparte judgement as the said mistake was genuine
and an oversight on the part of the Applicant. The court further noted that the
Defendant/Applicant had much interest and reason to defend the suit since the same involved
land valued at 40,000/= and the applicant being a simple peasant, her interest in the suit ought
not to be underrated
Further, in the important case of Patrick Kawooya V Naava [1975] HCB 314, which was an
appeal against an order of a Magistrate Court dismissing the Appellant’s Application for setting
aside exparte judgement.
The applicant and his advocate had failed to appear to the located venue for the hearing of the
case majorly due to a mix up leading to a sudden change of the venue and the court hearing the
case, this time a Chief Magistrate to have as opposed to the earlier hearing conducted by
Magistrate II, a change the advocate and his client never knew thus making them to go to a
wrong court. An exparte Judgement was thus entered and an application before the Chief
Magistrate to have it set aside was dismissed for no sufficient cause for non-attendance and
that the appellant had not exercised due diligence to find out the appropriate court for the
hearing of the case. He also held that the application was incompetent as the appellant had
cited O.9 r 9 (Now r 12) of the CPR instead of O.9 r 24 (Now r 27) of CPR and further that it was
supported by a defective affidavit which included hearsay information.
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The Appellant’s appeal to the High Court was allowed and importance was the High Court’s
observation thar;
1. THAT under the provisions of O.9 r 24 (Now r 27), the court was to set aside an exparte
decree eneterd against the defendant upon satisfaction that the defendant was
prevented by sufficient cause from appearing when the suit was called for hearing;
2. THAT O. 3 r 1 of CPR provides that any person may appear in person or by his or hear
advocate, this if read together with O.9 r 24 (Now r 27) means appearance by an
advocate representing the defendant is sufficient
3. THAT where there is a sufficient cause for nonappearance, the exparte judgement
eneterd against the defendant is to be set aside
4. THAT in the instant case, the appellant and his advocate had shown sufficient cause
within the provisions of O.9 r 24 (Now r 27) for their non appearance for the hearing
and the exparte decree would be set aside
5. THAT the citing of the wrong rule and the inclusison of hearsay information was a mere
technicality as the same was not fatal to warrant dismissal of the application, in any
event the same did not occasion any failure of justice to the Respondent

In conclusion, note should be taken that decisions to set aside a default judgement is
discretionary and the courts should be careful not to entertain litigants up in the arms to defeat
justice, advocates equally ought to advise their clients on the specific orders and material facts
therein.

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 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO…001…..0F…2025…
(ARISING FROM CIVIL SUIT NO…001..OF…...2024)

NATHANIEL…………………………………………….APPLICANT/DEFENDANT
VERSUS
JOANITA……..………………………………………….RESPONDENT/PLAINTIFF
NOTICE OF MOTION
(Brought under Order 36 rule 11 & Order 52 rules 1 & 3 CPR
TAKENOTICE that this honourable court shall be moved on the …25th …..day of…JANUARY…2025
at…2…O’Clock in the forenoon/afternoon or noon thereafter as Counsel for the applicants can
be heard on the application for orders that:
4. The Default judgement and decree entered against the applicant in Civil suit No…001…of…
2024…be set aside
5. The applicant be grant unconditional leave to appear and defend the suit
6. The execution of the default decree be set aside
7. costs of the application be provided for
TAKE FURTHER NOTICE that the grounds of this application are contained in the affidavit of……
NATHANIEL……, the applicant which shall be read and relied upon at the hearing but briefly
they:
1. The service of summons was not effective
2. The applicant has got a good defence to the suit
3. The applicant will suffer irreparable damage and gross injustice if the default judgement and
decree are not set aside
4.It is in the best interest of justice that the default judgement and decree be set aside,
execution of the decree be set aside and the applicant be allowed to defend the suit

DATED this…03…day of…JANUARY……2025

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 ……………………….
JUNIOR
COUNSEL FOR THE APPLICANT
(ALICE & CO. ADVOCATES)

GIVEN under my hand and the seal of this honorable court this……..day of……………..2025

………………………………………………………
DEPUTY REGISTRAR

DRAWN & FILED BY;

Alice & Co. Advocates

THE REPUBLIC OF UGANDA

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 IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO...001… OF… 2024

NATHANIEL.................................................................. APPLICANT/DEFENDANT

VERSUS

JOANITA........................................................................ RESPONDENT/PLAINTIFF

AFFIDAVIT IN SUPPORT

(Under O.36 r 11 & O.52 r 1, 2 & 3)

1. That I am Nathaniel the defendant in this matter aged 40, a Ugandan of sound mind and swears that
the statement that am going to give below is the truth to the best of my knowledge,

2. That I was not served with summons to file my defense in regards to this matter since I was out of the
country

3. That I have a serious defense to defend myself against the plaintiff's claims

4. That I am the rightful and lawful owner of the suit land.

5. That I have enjoyed occupancy of the suit land for over 9years without notice of vacancy or
interruptions.

6. That a default judgement be set aside and my application to file a defense be granted in response to
the plaintiff's claims

That costs for this application be provided

Sworn at Alice & Co. Advocates … at .... Day of .... 2024

.....................

NATHANIEL

DEPONET

BEFORE ME

......................

COMMISSIONER OF OATHS

THE REPUBLIC OF UGANDA

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 IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO...001… OF… 2024

NATHANIEL.................................................................. APPLICANT/DEFENDANT

VERSUS

JOANITA........................................................................ RESPONDENT/PLAINTIFF

DEFENDANTS SUMMARY OF EVIDENCE

The defendant shall adduce evidence that he is the rightful and lawful owner of the suit land plot no..
situated at Kikoni

LIST OF WITNESSES

1. Defendant

2. Others with leave of court

LIST OF DOCUMENTS

1. Sales agreement

2. Tittle deed

LIST OF AUTHORITIES

1. The 1995 constitution of Uganda

2. The Judicature Act Cap 16

3. The civil procedure Act Cap 282

4. The civil procedure Rules

5. Case laws

6. Any others with leave of court

DATED at Kikoni ..03rd ....day of..J....2024

Drawn and filed by

Alice & Co. Advocates