Subsequently, the defendant filed an application in the High Court under Order 9, rule 24 of the Civil Procedure Rules (CPR) for an order for setting aside the ex-parte judgment. The main ground of the application was that the defendant was not served with the hearing notice for the suit. Okumu-Wengi, J, heard the application and dismissed it on the ground that the trial judge, Lugayizi, J, was satisfied that the defendant's advocates had been duly served with the hearing notice and rightly heard and passed the judgment exparte.
Thereafter, the defendant applied to the High Court for a review of its order, which had refused to set aside the ex parte judgment. The application was made under Section 35 of Judicature Act; Section 83 of the Civil Procedure Act; and Order 42, rules 1 and 8 of the CPR, on the grounds that:
1.
There was an error apparent on the face of the record
2.
The applicant was aggrieved by the decision of the judge dismissing the application for setting aside the exparte judgment
3.
The applicant had a good defence to the suit
4.
The order was appealable but no appeal had been preferred against the order arising from the decree and judgment. If the judgment arising from the exparte proceedings was not set aside, a miscarriage of justice would be occasioned to the applicant.
Okumu-Wengi, J. heard and granted the application for a review, setting aside the ex-parte judgment. The plaintiff successfully appealed to the Court of Appeal. Hence the present appeal, which is made on the following grounds:
1.
The learned Justices of Appeal erred in law and fact when they held that there was service on the defendant.
2.
The learned Justices of Appeal failed in their duty of re-evaluating and subjecting the evidence on record to an exhaustive scrutiny before reaching their conclusion that the defendant's counsel was served with Court process.
3.
The learned Justices of Appeal erred in law and fact when they held that the alleged error on the face of the record was non-compliance with the learned Judge's order for a specific order of service.
4.
Having found that the order for specific mode of service was made to ensure that the defendant was served, erred in law and fact to hold that the alleged service on counsel for the defendant was proper.
Both parties to the appeal filed written submissions in support or opposition to the appeal as the case may be. M/S Ntambirweki Kantebbe and Kwarisiima, Advocates, submitted for the plaintiff and M/S Babigumira & Co. Advocates, submitted in reply in opposition to the appeal. The plaintiffs learned counsel argued ground one and two of the appeal together. They submitted that it was not sufficient for the trial judge to accept counsel's submission from the bar that the defendant had been served with the Hearing Notice for the suit. The facts on which the learned trial judge based his ruling to proceed ex parte should have been written down to
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