Wakilii

Twiga Chemical Industries v Viola Bamusedde (T A Triple B. Enterprises) (Civil Appeal 16 of 2004)

Supreme Court · [2005] UGSC 11 · 2005 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal's confirmation of an ex parte High Court judgment
Decision
Appeal dismissed; ex parte High Court judgment and Court of Appeal orders confirmed

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Cited — treatment unverified cited in 1 (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 Supreme Court dismissed a second appeal against the confirmation of an ex parte High Court judgment that dismissed the appellant's suit and entered judgment on the respondent's counterclaim after the appellant failed to appear at the hearing. The Court held that an application to set aside an ex parte judgment cannot succeed without good or substantial reasons; where the plaintiff's advocates undertook in the pleadings to effect service, the defendant who appeared need not prove the plaintiff was served; a liquidated sum pleaded in an unanswered counterclaim may be entered ex parte; and an appellate court will not interfere with a discretionary decision absent an error in principle. Appeal dismissed with costs.

Facts

The appellant sold chemicals to the respondent on credit. The respondent made part payment, leaving a balance of Shs 15,420,000, which the appellant said the respondent acknowledged as owing in two letters in 1999. The appellant sued under Order 33 of the Civil Procedure Rules to recover that balance. The respondent denied indebtedness and counterclaimed Shs 4,800,000 for distribution services and Shs 2,967,000 for debt-collection expenses. The appellant did not file a reply to the counterclaim. The plaintiff's advocates had undertaken in the plaint to effect service of court process on the defendant. The case was fixed for hearing on 28 June 2001, but the appellant and its counsel failed to appear. The High Court dismissed the suit and entered judgment on the counterclaim for Shs 4,800,000 as a liquidated sum with interest at 20% from July 1996, awarding costs to the respondent. The appellant's later application to set aside, on the ground that it was unaware of the hearing date because no hearing notice had been served, was dismissed, as was its subsequent appeal to the Court of Appeal.

Issues

  1. Whether the Court of Appeal erred in confirming the ex parte High Court judgment dismissing the suit and entering judgment on the counterclaim.
  2. Whether the Court of Appeal erred in upholding the trial judge's refusal to set aside the ex parte judgment where the appellant claimed it had not been served with a hearing notice.
  3. Whether the respondent's counterclaim was a liquidated sum capable of being entered ex parte.

Orders

  • Appeal dismissed with costs to the respondent in the Supreme Court and in the courts below.
  • Orders made by the Court of Appeal and the High Court confirmed.

Key headnotes

Civil Procedure — Ex Parte Judgment — Setting Aside — Requirement of Good or Substantial Reasons
An application to set aside an ex parte judgment cannot succeed unless good or substantial reasons are given to justify setting it aside.
Civil Procedure — Service of Process — Pleadings — Advocate's Undertaking to Effect Service
Where the plaintiff's advocates have undertaken in the pleadings to effect service of court process on the defendant, the defendant who has appeared in court is not required to prove that he was served, and the plaintiff cannot demand such proof.
Civil Procedure — Counterclaim — Liquidated Sum — Entry of Ex Parte Judgment
A liquidated sum pleaded in a counterclaim and not answered by a reply may be entered ex parte as a liquidated claim where the opposing party fails to appear, and need not be set down for separate hearing.
Civil Procedure — Appellate Review — Exercise of Discretion — Limits of Interference
An appellate court will not interfere with the exercise of discretion by a lower court unless there has been a failure to take into account a material consideration, the taking into account of an immaterial consideration, or an error in principle.

Legislation cited (8)

  • Judicature Act s.12(1)
  • Rules of the Court of Appeal r.29(1)
  • Civil Procedure Rules Order 33
  • Civil Procedure Rules Order 9 rules 20 and 24
  • Civil Procedure Rules Order 4(3)
  • Civil Procedure Rules Order 19(4)
  • Civil Procedure Rules Order 45
  • Evidence Act Cap 6

Cases cited (2)

  • Departed Asians Property Custodian Board v Issa Bukenya (Civil Appeal No. 18 of 1991)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
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.