CIVIL PROCEDURE II L3218 Student Number: 16/U/1966 Status: RETAKE NO.3 The law on conditions for reviewing and or setting aside a consent judgement is now settled. Parties to a civil proceeding are free to amicably settle a dispute and consent to a judgment being entered as provided for under Order 25 rule 6 of the Civil Procedure Rules of Uganda. However, after a consent judgement has been entered into, it may be vitiated, varied and/or set aside. In Hirani vs Kassam (1952) 19 EACA 131, the following text from Seton of Judgments and Orders, 7th Edn Vol 1 p. 124 was adopted: “Prima facie, any order made in the presence and with the consent of counsel is binding on all parties under them…and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the Court…or if consent was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the Court to set aside an agreement.” It was further stated in Attorney General & Anor Vs James Mark Kamoga and another SC CA No.8 of 2004 Mulenga JSC that it is a well settled principle that consent decree has to be upheld unless it is violated by reason that would enable a court to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. That this principle is on the premise that a consent decree is passed on terms of a new contract between the parties to the consent judgment. From the foregoing, the general principle is that a consent judgement once endorsed by court becomes binding on all parties and parties are estopped from asserting different positions from the stipulated agreement as was held in Migadde v Musoke & 4 ors Misc. Cause 107 of 2017. A decree is defined in Section 2 of the Civil Procedure Act to mean the formal expression of an adjudication which so far as regards to any of the matters in controversy in the suit and may be either preliminary or final. According to the facts, a consent judgment was entered in this case hence the presence of a decree whose legality we shall examine inorder to determine if Mrs. Mukasa’s course of appealing the agreement has a good likelihood of success and therefore advise her accordingly. In the instant case, Mrs. Immaculate Mukasa’s husband Mr. Mukasa John borrowed money from the bank securing it with the couple’s matrimonial home without seeking her consent. The bank then sued Mr. Mukasa and him and the bank executed a consent judgement where they agreed to take the security if Mr. Mukasa did not fulfil his obligations by a set date. Mrs. Mukasa seeks to appeal against this High Court consent judgment. Section 39(1) (c) of the Land Act states that no person may sell or enter into any other transaction in respect of land, on which the person ordinarily resides with his or her spouse and from which they derive their sustenance, except with the prior consent of his or her spouse. Such consent has to be in the manner prescribed by regulations made under the act under Section 39(2). This provision creates an incapacity generally of one spouse to contract in his or her own name, in respect of family land, without the other’s consent. Section 2 of the Mortgage Act 2009 defines “matrimonial home” to mean; a building or part of a building which a husband and a wife or as the case may be, wives and their children, if any, ordinarily reside together. However, under section 39 (4) of the Act, where such a transaction is entered into by a purchaser in good faith and for value without notice that the consent of the spouse was not given, the transaction is void but the purchaser has the right to claim from any person with whom he or she entered into the transaction. In the instant case, Mr. Mukasa did not seek the consent of his wife Mrs. Mukasa before entering into a loan agreement with the bank secured with the matrimonial home as defined in Section 39(1) of the Land Act. The issue here is whether the mortgaging of the suit property without the plaintiff’s consent was lawful. From the foregoing discussion, it can be concluded that without consent, mortgaging of matrimonial property is a nullity. This was the holding in Alice Akiror and Anor v Global Capital Save 2004 and Anor where it was stated that in the absence of written spousal consent to mortgaging of matrimonial property, the mortgage created over it is void. Considering section 39 (4) of the land Act (supra), it has to be asked whether the bank was can be referred to as having acted bonafide and in good faith without notice that the consent of the spouse was not given. In Alice Akiror (supra), the Court of Appeal stated that the provisions of Section 39 (1) of the Land Act are mandatory and cannot be circumvented. Mrs. Mukasa’s appeal therefore has a high likelihood of success due to the illegality and nullity of the consent judgement. A consent judgement could not therefore be lawfully based on an illegal mortgage and therefore was null and void. Order 9 rule 12 empowers court that has entered a consent judgment to pass a decree, pursuant to any of the preceding rules to the order or the judgment in an uncontested matter under order 50 to set aside such a judgment or otherwise vary the same on such terms and conditions as the court may deem fit. An application to set aside a consent judgment is brought under order 9 rule 12 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act asking for the setting aside of a consent judgement. The grounds of the application are to be set out and contained in the applicants affidavit. This was seen in Uganda Air Cargo v Moses Kirunda and Ors. In the instant case, the ground for application is illegality of the mortgage as it lacks spousal consent. No.2 In the instant case, JK Industries was served with a decree and a notice to show cause why execution should not issue. The decree indicates that it arises out of a default judgment entered against JK Industries on account of having been served with summons on plaint in a summary suit and the defendant having failed to apply for leave to appear and defend the suit. When a party is served with a plaint, they are required to respond by way of filling a Written Statement of Defence. A default judgement is enetered where there is proof of service of and the defendant has not filed a defence within the specified time (Concern Worldwide V Mukasa Kugonza). Rule 6 of order 9 is the relevant law. Under rule 6 where a plaint is for liquidated demand, judgment will be entered for the sums claimed. In Lloyds Forex Bureau vs Securex Agencies (U) limited, court stated that the record showed that summons were issued for the defendant in that case to put in a written statement of defence. The decree served to JK Industries was obtained under Order 9 rule 6 which applies to a plaint drawn and claiming a liquidated demand where no defence is filed and provides as follows; “Where the plaint is drawn claiming a liquidated demand and the defendant fails to file a defence, the court may, subject to rule 5 of this order, pass judgement for the sum not exceeding the sum claimed in the plaint together with interest at the rate specified, if any, or if no rate is specified, at the rate of 8% per year to the date of judgment and costs.” This rule permits court to enter default judgement against the defendant where there is a claim for pecuniary damages. In the instant case, the claim was for liquidated damages of 400 million. Stroud’s Judicial Dictionary of Words and Phrases Sweet and Maxwell 2000 Edition defines the term liquidated demand to include an amount on a bill of exchange, definite interest on a contract or a statute, a sum certain in money, a statutory demand for payment of a total debt or an amount due on a judgment. In Abbey Panel and Sheet Metal Co. Ltd v Barson Products (1947)2 All ER 809, Evershed LJ held that judgement in default is entered for a liquidated demand. It was held in Lloyds Forex Bureau that this gives a right to a plaintiff to proceed under Order 9 rules 6 and 7 with regard to a claim for liquidated damages. In Lloyds Forex Bureau where default judgment was passed against the defendant and which has similar facts to the instant case, the plaintiff filed a suit against the defendant to recover 50 million shillings. Summons were then issued for the defendant to put in a written statement of defence. Affidavit evidence of a court process server showed that the summons had been served on the defendant. In the instant case, such evidence is demanded as it’s a requirement to serve summons on the defendant. It was held in Llyods Forex Bureau case that order 9 rule 6 applies to a plaint drawn and claiming a liquidated demand where no defence has been filed. In that case, the plaintiff proved that he has a particular amount of money through the acts of the defendants’ servants. In the instant case, the plaintiff ought to have adduced proof of their liquidated demand. B. A defendant who is served with a decree under order 9 rule 6 which grants the court discretion to enter judgment in case the defendant did not file a defence can apply to court to set aside the order of the registrar entering interlocutory judgement. In Dembe Trading Enterprises Ltd v Uganda Confidential Ltd and Anor, the order of the registrar was set aside for having been entered in error. The first question to be answered is whether the demand was liquidated. In Twine Amos v Tamusuza James, it was stated that the operative phrase for entering judgment under Order 9 rule 6 is “liquidated demand”. That Osborne’s Concise Dictionary 7th Edition , Sweet and Maxwell quoted in that case, liquidated demand is defined as fixed or ascertained. In Lloyds Forex Bureau quoting Stroud’s Judicial Dictionary of Words and Phrases Sweet and Maxwell 2000 Edition, liquidated demand was defined to include an amount on a bill of exchange, definite interest on a contract or a statute, a sum certain in money, a statutory demand for payment of a total debt or an amount due on a judgment. The plaintiff therefore ought to prove that the demand was liquidated. There is also need to prove service of summons. In concern worldwide v Mukasa Kugonza, Justice H. Wolayo stated that a default judgment is entered where there is proof of service and the defendant has not filed a defence within the specified time. In Concern World Wide vs. Mukasa Kugonza, the claim was for unspecified sums of money. The judge held that there was need for the respondent to adduce evidence of the wrongful dismissal and for his entitlements under the contract. The judge held further that the award in default judgement of the chief magistrate was not based on any evidence and therefore the Chief Magistrate had acted with material irregularity in granting the default judgement. There is also need to examine whether there was effective service of summons. In concerns Worldwide, court held that it must satisfy itself that the service of summons is delivered to the defendant in person or if it is a corporate entity, to the officials authorized to receive service. That order 5 of the CPR gives clear guidance on service of summons and should be followed. Under rule 6 of order 9 where a plaint is for liquidated demand, judgment will be entered for the sums claimed. 8. i The Applicable law to injunctions is Section 38 Judicature Act where the High court has discretion to grant an injunction in all cases in which it appears to the court to be just and convenient to do so to restrain any person from doing acts. Section 38 echoes section 64(c) CPA to the effect that in order to prevent the ends of justice from being defeated, court may, if it is so prescribed, grant a temporary injunction. The general considerations for the grant of temporary injunctions were set out in the case of Farida Nantale vs. AG and 5 others HCMA No.630/2013. That; where in any suit it is proved by affidavit or otherwise: that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree, or that the defendant threatens or intends to remove or dispose of his or her property with a view to defraud his or her creditors, the court may, by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. The purpose of the law is to maintain status quo of the subject matter of the dispute pending the final determination of the rights of the parties, in order to prevent the ends of justice from being defeated as was held in Daniel Mukwaya v Administrator General HCCS No.630 of 1993. In Farida Nantale, it was held that the phrase “maintain” used in relation to temporary injunctions ought not to be construed in the active ordinary sense where it would mean that activities ought to be restrained should continue at the same level or standard or even escalate, for this was to be the case there would be no necessity for temporary injunctions. That it should rather be interpreted in the passive ordinary context synonymous with the term preservation which means to save, to keep something in its original state, in good condition and or safe from harm. That the interpretation however ought to take into account all facts of the case including the history, the timing, and such other surrounding factors bearing on the case as a whole. Status quo is a question of fact. The other consideration is whether in fact the applicant would suffer irreparable injury or damage. If the answer is yes, then court ought to grant the order as in Giella v Cassman Brown & Co 1973 EA. However, in cases where damages are sought as remedy in the main suit, the applicant could still demonstrate irreparable loss or damage or injury in some given cases in an application and it does not operate as a granted. The final consideration is that the applicant must demonstrate that there are serious issues to be tried. In event that the court is in doubt as to the above factors, then it ought to decide the matter by weighing doubts against certainities of the risks of doing injustice otherwise termed as the balance of convenience. ii. Summons for directions Order XIA rule 1(2) of the Civil Procedure Amendment Rules 2019 provides for the taking out of Summons for Directions where a suit has been instituted by way of plaint. This was applied in Kagimu and 7 others v Sekatawa and 12 others. Therefore, in every action commenced by a plaint, the Plaintiff is required, under rule 2 to take out summons for direction within 28 days from the date of the last pleading filed in accordance with order 8 rule 18. Default in taking out summons for directions abates the suit but the plaintiff may subject to the law of limitation file a fresh suit. The scope of the summons for directions is better appreciated by looking at Form 14 A. Among the matters that can be handled through this procedure include questions such as whether a particular suit should be consolidated with the suit under which the summons are taken out, whether amendment of pleadings is required, security for costs, whether the matter be referred to an official referee etc. The summons is heard by the Registrar pursuant to Order 50 rule 3 as amended. Following the disposal of the summons for direction and after compliance with any orders made thereon, the suit shall proceed for conference scheduling. In Carlton Douglas Kasirye vs. Sheena Ahumuza, Civil Application 150 of 2020 of the Commercial court held generally and made wide ranging observations on the application of Order 11A as follows- (a) Summons for directions must always be taken out by the plaintiff within 28 days of the last pleading otherwise the suit abates. (b) the mediation envisaged under the amendment is mediation conducted on reference by a judge at the hearing of the summons or scheduling. (c) Order 11A Rule 1 (4) (e) creates an exception to the requirement under sub-rule (6) to the effect that the rule applies to all actions instituted by way of a plaint except an action in which a matter has been referred for trial to an official referee or arbitrator (d) a court accredited mediator is an official referee because in his or her role, he or she performs the function of an official referee of the Court, (e) (e) where a matter is referred by the Court to mediation, the plaintiff would not be expected to take out summons for directions within 28 days provided for under sub-rule (2) of Rule 1 (f) mediation is no longer mandatory and the requirement for mandatory mediation ceased to apply. (g) reference to mediation is an option that can be explored either during hearing the summons for directions or when the case is placed before a Judicial Officer for scheduling or hearing. for directions Order XIA rule 1(4) provides for five exceptions to the rule on taking out summons. iii. Security for costs Order 26 provides that the court may deem it fit to order a plaintiff to give security for payment of all costs incurred by any defendant. In East Africa Holdings Ltd v Madhvani, it was held that O.26 rule 1, it is provided that the court may deem it fir to order a plaintiff in any suit to give security for the payment of all costs incurred by the defendant. In Namboro v Kasala; the main consideration to be taken into account in an application for s.f.c are; (a) that he has a good defence to the suit, and that he is likely to succeed. (b) Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit. That mere poverty of a plaintiff is not by itself a ground for ordering security for costs. In G.M Combined (u) Limited v A.K Detergents, a summary of grounds for application were summarized iv. Application for leave to appear and defend. O.36 r3 requires service of summons to be effected on to the defendants by summary procedure. The defendant upon due service is entitled to apply for leave to appear and defend implying that he cannot legally file a WSD unless and until permission is so granted by the court. The procedure for applying for leave to appear and defend is by notice of motion supported by a valid affidavit or affidavits. In Century Enterprises Ltd v Greenland Bank, the Defendant filed an application for leave to appear and defend the suit. The application takes the form of a Notice of Motion. The notice of motion must be filled together with the supporting affidavit or affidavits, within a prescribed time and in in case of more than one applicant each of the applicants must file an affidavit in support or one applicant may depone an affidavit on behalf of the other applicants. In Ready Agro Suppliers and 2 ors v UDB, the affidavit of applicant no.3 filed, a month after the application for leave to appear and defend was filed, was clearly out of time for applicant no.3, to be the supporting affidavit to his application for leave to appear and The affidavit in support must be deponed by a person who is in possession of the material fact supporting the grounds and it should not be tainted with falsehoods. This was considered in Zimwe Hardware and Constructions Ltd V Barclays Bank UG Ltd. It was held; the applicant should attach a draft written statement of defence to the affidavit in support wherein the intended defence to the claim should be specifically set out. The requirement to attach a draft defence is not mandatory but a matter for prudent practice intended to enable the court appreciate whether the applicant has a plausible defence. Considering forum, the application for leave to appear and defend must be filed in the court where the main suit is pending. This was considered in Pinnacle Projects Ltd V Business in Motion Consultancy where it was held that that O. 36 r 3(1) requires the defendant who is served with summons under O. 36 to apply for leave to appear and defend in the same court where the main suit is pending. O.36r3 does not specify the time to appear and defend but alludes to the time specified in the summons which is normally 10 days from the date of service. vii. Dismissal of suits Dismissal for want of prosecution, O.17 rule 5. The purpose of this order is to provide court with administrative machinery to disencumber itself of case records in which the parties appear to have lost interest. Krakauer vs Katz (1954) 1 ALLER 244. The Civil Procedure rules were amended by SI 33 of 2019 reducing the period from two years to six months. Before the amendment to the Rules, a suit would be liable to dismissal if no step was taken towards its prosecution for a period of two years after its filing. Under the current rule 5(which replaced the former rules 5 and 6), a suit will be dismissed automatically if six months elapse after scheduling without any step being taken for its prosecution by either party. It is apparent that the language of the rule in former rule 6 differs from the language in rule 5. Whereas under the former rule 6, the Court had to order for the dismissal of the suit, under rule 5, the suit abates automatically. “Step” under the current rules and before must mean a step taken on the record such as an interlocutory application. Victory Construction company vs. Duggal(supra). In Shell Uganda vs. Agip SCCA 49/1995, it was held that to amount to “a step in the proceedings” the action taken by the defence must be a step-in furtherance of court proceedings. The step must be taken in court and not outside. Mere talk between solicitors and their clerks or writing letters is not enough. Taking out summons or something of that kind suffices. Where the suit abates automatically pursuant to rule 5, the Plaintiff, may subject to the law of limitation file a fresh suit. It remains to be interrogated whether a suit that abates automatically can nevertheless be reinstated. Filing a fresh suit can always be prejudicial for example, the action may be caught by time. Therefore, in Rawal vs The Mombasa Hardware Limited (1969) EA 392, the Court of Appeal for East Africa, invoked inherent powers and reinstated a suit dismissed under rule 6, citing special circumstances of the case and held that the remedy in rule 6(that of filing a fresh suit) was not intended to be exhaustive and the inherent powers of the Court was not excluded. In Henry Muganwa Kajura vs. Joseph Sempebwa and others, Civil Appeal 201 of 2019, the suit was dismissed in 2003 for want of prosecution under 0rder 15 rule 6. In 2014, the suit was reinstated and heard on merit. The Court of Appeal held that the suit was reinstated illegally because a suit dismissed under rule 6 could not be reinstated. The court made no reference to Rawal vs Mombasa Hardware above. A suit may be dismissed under O.5 rule 1(2) (c) when summons is not served or an application for extension of time has not been filed or has been dismissed. In Bitamisi Namuddu vs Rwabuganda Godfrey SCCA 16/2004, it was held that the consequences of failure to serve the summons within 21 days from the date of issue and of not making application for extension of time in the prescribed period are clear and straight forward – the suit stands dismissed without notice. The provision does not give Court discretion to decide whether to dismiss or not to dismiss the suit. The Courts action is dictated by law and it is mandatory. The dismissal is also affected without notice. A suit may also be dismissed under Order 9 rules 16, 17 or 19. If a suit is dismissed under O.9 rules 16 or 17, a fresh suit may be filed, or the suit may be reinstated under O.9 rule 18. Where a suit is dismissed under O.9 rule 19, a fresh suit may be instituted subject to the law of limitation. A suit may be dismissed under O.9 rule 22, where only the defendant appears. The plaintiff in that case must apply for reinstatement of the suit. In Patrick Mayanja vs Uganda National Roads Authority, Civil suit 39 of 2016, the Plaintiff’s suit was dismissed under order 9 rule 22. The Plaintiff filed a fresh suit for the same cause of action. The Court struck out the fresh suit stating that filing a fresh suit was an abuse of court process as the same was prohibited by rule 22. A suit will be dismissed on a notice to show cause under O.17 rule 2, where it has been adjourned generally and no application is made to restore the suit to the cause list generally within twelve months. In Victory Constructions company vs Duggal, it was held that where parties to an action called to show cause why the suit should not be dismissed for want of prosecution, the court should be slow to make an order of dismissal if satisfied that the suit can be heard without further delay, that the defendant will suffer no hardship and that there has been no flagrant and culpable inactivity on the part of the Plaintiff. The justification for dismissal of unprosecuted cases was explained in the case of Agnes Nanfuka Kalyango vs. Attorney General and Masaka District Local Government CACA 64 of 2000 (2005) ULSR, the case from filing delayed for 10 years before trial. By any standards, the Court said, a very long delay indeed. No fair trial is possible after such a length of delay as some key witnesses may have changed addresses or have even died. Even if they are all present, lapse of memory of what actually had taken place is bound to affect the accuracy of their testimony. In Scott vs The Mercantile Accident company (1892) 8T.L.R 431, it was held that “it is very desirable that the trial should not be delayed for during the delay witnesses might die or go abroad or their memory of occurrences might become weak or confused” In Nyiramakwene vs. Bitariho (1973)1 ULR 67; Court found that O.15 r.6 enables it on its own initiative without notice to either party to dismiss the suit for an inordinate delay of two years. Court observed that the action seemed to have been allowed to go to sleep for a little over three years, that it is the duty of the plaintiff to bring his suit to early trial just as much as is the duty of the adviser to get on with the case. That it is impossible to have a fair trial after so long a time. Court observed that it was clear there had been culpable and inexcusable inactivity on the part of the plaintiff which ought not to be tolerated. Cases such as Victory Construction vs. Duggal (1962) EA 697; William C Parker Limited vs. Ham & Sons Limited (1973)3 ALLE.R 1050, and Austine Securities Limited vs North Gate English Limited, on the point that although notice is not required under the former rule 6 but once notice is given, it is upon the discretion of Court to dismiss or not to dismiss appear to have no place any more since under the current rule 5, the suit abates automatically. Cases such as Ayub Suleiman vs. Salim Kabambala SCCA 32 of 1995, which held that a Court can still dismiss a suit for want of prosecution under its inherent powers even where the facts did not fall under any of the scenarios given by the rules would appear to still be relevant, hence in Abdul and Another vs. Home and overseas (1971) EA 564 and Mukisa Biscuits (supra), the principle is that the fact that the periods of delay did not fall within any of the specific periods provided by the rules does not prevent the court from exercising its inherent powers to dismiss the case. In both those cases, it was held that the provisions of the CPR for the dismissal of suits for want of prosecution do not purport to be exclusive and do not fetter the courts inherent jurisdiction to dismiss suits in circumstances not falling directly within those provisions if it is necessary to do so to prevent injustice or abuse of the process of court. A Judge dismissing a suit under the foregoing Order should specifically state the rule under which the suit has been dismissed. This helps the aggrieved party to decide the proper course of action afterwards. In Horizon Coaches Limited vs. Pan African Insurance Company Limited SCCA 2 of 2003, after several adjournments to allow the appellant to produce evidence in support of its counterclaim, the case came for hearing on 13.2.01. on this date, none of the parties was present. The case was adjourned sine die. Later that day, the Respondent’s counsel appeared. Judgment was entered in favour of the Respondent, but the appellants counterclaim was dismissed. The Judge cited no rule under which she had dismissed the counterclaim. The Appellant applied to set aside the exparte Judgment. The application failed, the Judge for the first time mentioning that she had dismissed the counterclaim under O.15 rule 4 of the CPR. The Appellant’s appeal to the Court of Appeal failed because the Court of Appeal held the view that on the authority of Salem A.H Zaidi vs. Fayd H.Humeddan (1960)EA 92, such a decision could only be set aside by appeal and not by application before the same court. It was held that it was necessary to determine under what rule the Court dismissed the counterclaim. The failure to cite the law left the appellant in a dilemma as to which course of action to take. Where there are a number of provisions of the law under which the same decision may be made but with different consequences depending on which provision you proceed, like in the present case, it would be desirable to mention the law. Appeals can also be dismissed where on the day fixed for hearing the Appeal the Appellant does not attend court. See rules 100 of the Court of Appeal rules and 96 of the Supreme Court rules. No. 7 Default judgments are provided for under order 36 of the CPR. A default judgment connotes judgment entered against a defendant who upon due service of summons fails to enter appropriate appearance Before court can enter a default judgment in exercise of its mandate under O.36 the following must be in existence. The claim must have been liquidated and where it is a combination of liquidated and unliquidated demands, the plaintiff must abandon the unliquidated demands.In Valery Alia v Alionzi John, it was held; that where there is a claim for liquidated damages together with a claim for pecuniary damages, the registrar can enter default judgement in respect of the liquidated demand and set down the suit for assessment of damages in respect to the claim for pecuniary damages. The claim under a lease or hire of a vehicle pursuant to a written contract with a definite sum payable monthly or weekly as in this case will give rise to a liquidated demand upon default to pay the sums certain in money. The plaintiff abandoned the unliquidated. The judgment can only be in respect of the amount set out in the plaint which are liquidated in nature within the parameters of O.36r2(a). In Sterling Travel and Tour Services ltd v Millennium Travel and Tour Services; where it was held that it is trite law that summary procedure should only be resorted to in clear and straight forward cases where the demand is liquidated and where there are no points for the courts to try. The same position is reflected under Order 36 rule 2 (a) of the CPR. That a liquidated demand is in the nature of a debt, a specific sum of money due and payable under or by virtue of a contract which is either already ascertained or capable of being ascertained as a mere matter of arithmetic. The defendant must have been served with summons and the relevant pleadings in the manner required for service of summons under O.5… Valery Alia v John service of sermons was held to be mandatory. Craig v Kanseen  1 All ER 108 HELD; that the failure to serve the summons upon which the order was made was not a mere irregularity, but a defect which made the order a nullity and therefore, the order must be set aside. Even where the summons and pleadings allege to have been served on the defendant, such service must be evidenced by the filing of an affidavit of service O.5r16. The defendant is required by summons issued pursuant to O. 36 r 3 to file an application for leave to appear and defend, (but not to file a WSD). Mufumba v Waako HELD; that when the Applicant failed to file for leave to defend, he locked himself out of the proceedings, so that much as he remained a party to the suit, he could only be seen but not heard as the proceedings were handled in his absence.