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Capt. Philip Ongom v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)

Supreme Court · [2003] UGSC 56 · 2003 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision upholding the High Court's refusal to set aside an ex parte judgment
Decision
Appeal allowed in part: the award of special damages (£3,759 bank charges) and the unproved cost of the air ticket set aside; the rest of the ex parte judgment left undisturbed

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Holding

On a second appeal against refusal to set aside an ex parte judgment, the Supreme Court held that the courts below erred by treating the gross professional negligence of the appellant's advocate as a reason to refuse relief rather than asking whether the appellant was prevented by sufficient cause from appearing. An advocate's default is sufficient cause under Order 9 Rule 24 unless the litigant was privy to it or failed to give due instructions; merits are not examined under that rule. Setting aside the whole judgment would nonetheless be futile, as the appellant had little real defence. However, the special damages award for bank charges was neither specifically pleaded nor strictly proved and was set aside. The appeal succeeded only in part.

Facts

The respondent advanced £13,000 to the appellant under a business arrangement and sued in the High Court when he failed to repay it, claiming the principal, profit, and special and general damages. After entering appearance but filing no defence, the appellant had a default judgment entered against him; he later paid shs. 19,150,000 into court as the amount he admitted owing. At the ex parte formal proof hearing he did not appear, his advocate having failed to file a defence or inform him of the hearing date, and judgment was entered against him. His application to set aside the ex parte judgment, and his appeal to the Court of Appeal, were both dismissed on the basis that he should sue his negligent advocate instead. He appealed to the Supreme Court. The trial court had also awarded special damages of £3,759 for Halifax bank charges, an amount exceeding the £300 pleaded and supported only by an undated bank document and a statement of account balance.

Issues

  1. Whether the appellant was prevented by sufficient cause from appearing at the hearing of the suit within the meaning of Order 9 Rule 24 of the Civil Procedure Rules.
  2. Whether an advocate's default, where it amounts to gross professional negligence, can constitute sufficient cause for setting aside an ex parte judgment.
  3. Whether the courts below erred in failing to consider the sufficiency of the grounds advanced in support of the application to set aside.
  4. Whether the award of special damages for bank charges was specifically pleaded and strictly proved.

Orders

  • Grounds 1 and 3 upheld; grounds 2 and 4 rejected.
  • The award of special damages in the sum of £3,759, and the unproved and unspecified cost of the air ticket, set aside.
  • The remainder of the ex parte judgment not interfered with.
  • The respondent at liberty to prove and recover the cost of the air ticket as part of the costs of the suit.
  • Costs orders in the lower courts upheld; each party to bear its own costs of the appeal.

Key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause and Advocate's Default
An advocate's default, even where it amounts to gross professional negligence, may constitute sufficient cause under Order 9 Rule 24 of the Civil Procedure Rules for setting aside an ex parte judgment, provided the litigant was not privy to the default and did not fail to give the advocate due instructions; the litigant's separate right to sue the advocate in negligence is immaterial to that question.
Civil Procedure — Setting Aside Ex Parte Judgment — Distinction Between Order 9 Rule 9 and Rule 24
The legal principles governing applications under Order 9 Rule 9 and Order 9 Rule 24 are distinct; the court has wider, more unfettered discretion under Rule 9 than under Rule 24, and Rule 24 applies where a decree was passed ex parte after a hearing of which the defendant had notice but failed to attend.
Civil Procedure — Setting Aside Ex Parte Judgment — Merits Not to Be Considered
On an application under Order 9 Rule 24 it is not open to the court to consider the merits of the case; the inquiry is confined to whether the summons was duly served and whether the defendant was prevented by sufficient cause from appearing.
Civil Procedure — Representation — Extent to Which a Litigant Is Bound by the Advocate's Acts and Omissions
Although a litigant represented by an advocate is bound by the acts and omissions of the advocate within the scope of the engagement, the court must apply that principle with care to avoid abuse and unjust results, and a litigant ought not to bear the consequences of the advocate's default unless privy to it or responsible through failure to give due instructions.
Damages & Quantum — Special Damages — Requirement of Specific Pleading and Strict Proof
Special damages must be specifically pleaded and strictly proved; an award exceeding the amount pleaded, made without amendment of the plaint and not strictly proved to flow from the defendant's breach, cannot be upheld and is not saved by a general prayer for any other relief.

Legislation cited (5)

  • Civil Procedure Act s.101
  • Civil Procedure Rules Order 9 Rule 9
  • Civil Procedure Rules Order 9 Rule 24
  • Civil Procedure Rules Order 48 Rules 1 & 3
  • Constitution of Uganda Article 28

Cases cited (7)

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