Wakilii

Gatete and Another v Kyobe (Civil Appeal No 57 of 2004)

Court of Appeal · [2004] UGCA 55 · 2004 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court ruling dismissing an application to set aside a consent judgment entered in a summary suit and for leave to appear and defend
Decision
Appeal dismissed; the High Court ruling refusing to set aside the consent judgment stands

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal dismissed an appeal against the refusal to set aside a consent judgment entered in a summary suit. It held that service on one partner constituted good service on the firm under O.27 r.3 CPR, and failure to file an affidavit of service was not fatal. A partner had ostensible authority to borrow on behalf of the firm; internal restrictions requiring written consent did not bind a third party without notice (Partnership Act s.9). The alleged illegality under the Money Lenders Act, raised for the first time on appeal, could not be entertained. Fraud was inadequately pleaded and unproved, and the Registrar acted within power under O.46 r.2 in entering the consent judgment.

Facts

The appellants and Matsiko Kasiimwe were partners in a registered firm, GMT Group, engaged in import and export. By internal agreement, a partner could borrow for the partnership only with the prior written authority of the other partners. By agreement dated 8 February 2002, Matsiko borrowed 17 million shillings from the respondent, William Kyobe, on behalf of the partnership, repayable by 30 March 2002 with interest of 50,000 shillings per day on default. Matsiko defaulted. The respondent filed a summary suit under O.33 CPR against the partnership. Matsiko signed a consent judgment with the respondent's counsel, which the Registrar entered on 18 April 2002. The other partners, claiming they were unaware of the borrowing and the consent judgment until execution, applied to set aside the decree and for leave to defend, alleging lack of service, fraud, and that Matsiko acted in his individual capacity. The High Court dismissed the application, prompting the appeal.

Issues

  1. Whether the summons in the summary suit was effectively served on the partnership through service on one partner.
  2. Whether the borrowing partner acted within his ostensible authority in borrowing money on behalf of the partnership.
  3. Whether the appellate court should entertain the alleged illegality of the loan agreement not raised before the trial court.
  4. Whether fraud had been sufficiently pleaded and proved to justify setting aside the consent judgment.
  5. Whether the Registrar had jurisdiction to enter the consent judgment in the summary suit.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent in the Court of Appeal and in the High Court.

Key headnotes

Service of Process — Partnerships — Service on One Partner
Where persons are sued as partners in the name of their firm, service of summons upon any one partner constitutes good and effective service on the firm under Order 27 rule 3 of the Civil Procedure Rules.
Service of Process — Affidavit of Service — Effect of Non-Filing
Failure to file an affidavit of service is not fatal where there are sufficient materials, such as the served party's conduct in executing a consent judgment and not denying service, from which the court can be satisfied that effective service occurred.
Partnership — Ostensible Authority — Internal Restrictions and Third Parties
A partner has ostensible authority to borrow money from third parties to finance the partnership business, and an internal requirement of prior written consent of other partners does not bind a third party unless brought to that party's notice, per section 9 of the Partnership Act.
Appeals — New Points of Law Raised on Appeal
An appellate court will entertain a new point of law not argued before the lower court only where it is satisfied that it has all the facts bearing on the contention and that no satisfactory explanation could have been offered by those whose conduct is impugned.
Pleadings — Fraud — Requirement of Particulars and Proof
Where fraud is alleged, its particulars must be specifically pleaded and evidence to prove it provided; a bare allegation of fraud without particulars or proof will not be entertained, per Order 6 rule 2 of the Civil Procedure Rules.
Summary Suits — Consent Judgment — Registrar's Jurisdiction
A Registrar acts within jurisdiction under Order 46 rule 2 of the Civil Procedure Rules in entering a consent judgment in a summary suit where a defendant, having no defence, consents to judgment in agreed terms.

Legislation cited (8)

  • Civil Procedure Rules O.27 r.3
  • Civil Procedure Rules O.33 r.3
  • Civil Procedure Rules O.33 r.6
  • Civil Procedure Rules O.33 r.11
  • Civil Procedure Rules O.46 r.2
  • Civil Procedure Rules O.6 r.2
  • Partnership Act (Cap 114) s.9
  • Money Lenders Act s.3(1)

Cases cited (2)

  • Kampala Bottlers Ltd v Dominico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Okello-Okello v UNEB (Civil Appeal No. 12 of 1997)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.