Ongom v Nyero (Civil Appeal 14 of 2001)

Supreme Court · [2003] UGSC 16 · 2003 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the Court of Appeal's dismissal of an appeal against refusal to set aside an ex parte judgment

Decision

Appeal partly allowed; the special damages award of £3,759 and the unproved air-ticket cost set aside, the remainder of the ex parte judgment left undisturbed.

The full judgment

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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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a second appeal from refusal to set aside an ex parte judgment, the Supreme Court held that a litigant who is not privy to his advocate's default, and not at fault in instructing the advocate, ought not to bear its consequences; the advocate's failure to inform the appellant of the hearing date was 'sufficient cause' under Order 9 Rule 24, regardless of how gross the negligence, and the courts below erred in not considering it. However, the court declined to set aside the judgment generally because a retrial on liability would be futile. It set aside only the special-damages award of £3,759, which was neither specifically pleaded nor strictly proved, and the unproved air-ticket cost.

Facts

The respondent advanced £13,000 to the appellant, which he failed to repay, and sued in the High Court for recovery plus special and general damages for breach of contract. The appellant entered appearance through his advocate but no defence was filed, and a default judgment was entered. The appellant paid shs.19,150,000 into court as the amount he admitted owing. At the formal proof hearing he did not appear, his advocate having been served with the hearing notice but having failed to attend or inform him, and an ex parte judgment was entered against him for the principal sum, profit, and special and general damages with interest and costs. He applied to set the judgment aside, asserting his absence was due to his advocate's default and that he had a good defence. The High Court and Court of Appeal dismissed his application and appeal, holding the appellant should bear the consequences of his advocate's gross negligence and could instead sue the advocate. Part of the decretal sum had already been recovered by execution. The special damages included £3,759 for Halifax bank charges, pleaded as £300.

Issues

Whether the appellant was prevented by sufficient cause from appearing at the hearing so as to entitle him to have the ex parte judgment set aside under Order 9 Rule 24 of the Civil Procedure Rules.
Whether a litigant should bear the consequences of his advocate's default where the advocate's negligence was gross and the litigant was not privy to it.
Whether the special damages of £3,759 awarded for bank charges were specifically pleaded and strictly proved.

Orders

Appeal succeeds in part but substantially fails.
The ex parte judgment is not interfered with save as to the special damages.
The award of special damages in the sum of £3,759 is set aside.
The unproved and unspecified cost of the air ticket is set aside, with liberty to the respondent to prove and recover it as part of the costs of the suit.
The orders for costs in the lower courts are upheld.
Each party bears its own costs of this appeal.

Key headnotes

Setting Aside Ex Parte Judgment — Order 9 Rule 24 v Rule 9 — Distinction in Discretion

Order 9 Rule 9 applies to judgments entered without a hearing, while Rule 24 governs setting aside a decree passed ex parte after a hearing of which the defendant had notice but did not attend; the discretion under Rule 9 is more unfettered than under Rule 24, and the considerations applicable to each are not the same.

Setting Aside Ex Parte Judgment — Sufficient Cause — Order 9 Rule 24

Under Order 9 Rule 24 the court must set aside an ex parte decree where the defendant satisfies it either that the summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing; once either is established the court is under a duty to grant the application, subject to such terms as to costs or payment into court as it thinks fit.

Advocate's Default — Litigant Bound by Advocate — Limits of the Principle

Although a litigant represented by an advocate is bound by the advocate's acts and omissions, a litigant ought not to bear the consequences of the advocate's default unless the litigant is privy to it or it results from the litigant's failure to give due instructions; an advocate's failure to inform his client of the hearing date can therefore constitute sufficient cause, and the cause is no less sufficient because the default also amounts to gross professional negligence.

Setting Aside Ex Parte Judgment — Merits Not Considered Under Order 9 Rule 24

On an application to set aside an ex parte judgment under Order 9 Rule 24 it is not open to the court to consider the merits of the case; the existence or otherwise of a cause of action against a negligent advocate is immaterial to whether the defendant was prevented by sufficient cause from appearing.

Special Damages — Requirement to be Specifically Pleaded and Strictly Proved

Special damages must be specifically pleaded and strictly proved; an award of bank charges in excess of the sum pleaded, unsupported by evidence that the indebtedness resulted from the defendant's breach and not amended into the plaint, is neither specifically pleaded nor strictly proved and cannot be upheld.

Substantive Justice — Futility of Retrial — Technicality Not to Obscure Justice

Even where the courts below erred in their exercise of discretion, an appellate court may decline to set aside an ex parte judgment and order a retrial where, on the peculiar circumstances, a retrial would be a futile exercise leading to substantially the same result with undue delay and increased costs.

Legislation cited (5)

Civil Procedure Act s.101
Civil Procedure Rules O.9 r.9
Civil Procedure Rules O.9 r.24
Civil Procedure Rules O.48 rr.1 & 3
Constitution of Uganda Article 28

Cases cited (7)

Kyamulesire v Bagambe (Civil Appeal No. 20 of 1995)
Roussos v Virani (Civil Appeal No. 9 of 1993)
Mbogo and Another v Shah [1968] EA 93
Mitha v Ladak [1960] EA 1054
Shabin Din v Ram Parkash Anand (1955) 22 EACA 48
Zirabamuzaale v Correct [1962] EA 694
Star Mineral Water and Ice Factory (1961) E.A. 454

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.