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Amer Nagy v Ekame& Anor (Civil Appeal No.008 of 2005)

Court of Appeal · [2018] UGCA 74 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling dismissing an application to set aside an ex-parte (default) judgment entered under summary procedure
Decision
Appeal dismissed; the High Court ruling refusing to set aside the ex-parte judgment stands

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Holding

The Court of Appeal dismissed the appeal, holding that a defendant served with a specially endorsed plaint who fails to apply for leave to appear and defend within the prescribed time may only have a default judgment set aside under Order 36 rule 11 on proof of ineffective service or other good cause, the latter requiring a genuine triable defence. The appellant's plea of illegality, raised nearly six months late and unsupported by evidence of the licensing position, was a sham afterthought defence. Since both parties were in pari delicto, the appellant could not rely on the alleged illegality. The trial judge correctly refused to exercise discretion in his favour.

Facts

The respondents supplied the appellant with 2,100 kg of tantalite ore at an agreed price of US$21 per kg, for a total of US$38,750. The appellant paid US$5,350 and guaranteed the balance with a cheque dated 6 July 2000, but breached the agreement to pay the remaining US$33,000. The respondents filed a suit under summary procedure in the High Court (Commercial Division) for recovery of the balance. After being served with summons and the plaint, the appellant did not file an application for leave to appear and defend within the prescribed time, and an ex-parte judgment was entered against him. Nearly six months later he applied to set aside the judgment, arguing he was wrongly sued and that the contract was illegal and unenforceable because the parties lacked a mineral dealing licence under section 72 of the Mining Act. The trial judge dismissed the application with costs, and the appellant appealed.

Issues

  1. Whether the appellant disclosed good cause under Order 36 rule 11 of the Civil Procedure Rules to set aside the ex-parte (default) judgment.
  2. Whether the trial judge erred in failing to address the points of law and authorities cited on illegality and cause of action.
  3. Whether the suit contract was illegal and unenforceable for want of a mineral dealing licence under section 72 of the Mining Act.

Orders

  • Appeal dismissed.
  • Costs of the appeal and of the trial court awarded against the appellant.

Key headnotes

Civil Procedure — Summary Procedure — Setting Aside Default Judgment under Order 36 rule 11
A default judgment entered under Order 36 may be set aside under Order 36 rule 11 only where the court is satisfied that service of summons was ineffective or that another good cause exists; good cause requires the defendant to demonstrate a genuine triable defence, and setting aside is an exercise of judicial discretion that the defendant bears the onus of justifying.
Civil Procedure — Summary Procedure — Effect of Failure to Apply for Leave to Appear and Defend
Where a defendant served with a specially endorsed plaint fails to apply for leave to appear and defend within the prescribed time, the plaintiff is entitled to a decree for the amount claimed, and a belated application to set aside the resulting judgment, brought without explanation and long after entry, will be treated as dilatory.
Contract Law — Illegality — In Pari Delicto
A party who participated in an allegedly illegal contract is in pari delicto and cannot rely on the illegality to escape liability where the parties are equally at fault; the defendant's position is no stronger and a bare, unsubstantiated allegation of illegality raised late may be rejected as a sham defence.
Commercial Law — Negotiable Instruments — Cheque Withdrawn Before Presentation
Although the holder of a bill of exchange is ordinarily entitled to judgment save in exceptional circumstances, a cheque withdrawn before presentation cannot be relied upon as the foundation of a claim.

Legislation cited (7)

  • Mining Act Cap 144 s.72
  • Civil Procedure Rules Order 36 rule 11
  • Civil Procedure Rules Order 36 rule 3(2)
  • Civil Procedure Rules Order 36 rule 4
  • Civil Procedure Rules Order 36 rule 5
  • Civil Procedure Rules Order 9 rule 24
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)(a)

Cases cited (8)

  • Pandya v R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kimani v McConnel (1966) EA 547
  • Capt. Philip Ongom v Catherine Nyero Owata (Civil Appeal No. 14 of 2001)
  • Post Bank (U) Ltd v Abdu Ssozi (Civil Appeal No. 8 of 2015)
  • Geoffrey Gatete & Another v William Kyobe (Civil Appeal No. 7 of 2005)
  • Kotecha v Mohammed [2002] EA 112
  • Mistry Amar Singh v Serwano Wofunira Kulubya (1963) EA 408
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.