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Gatete and Another v Kyobe (Civil Appeal 7 of 2005)

Supreme Court · [2006] UGSC 26 · 2006 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, arising from an application to set aside a consent judgment entered in a summary suit and for leave to appear and defend
Decision
Appeal allowed; consent judgment and decisions of the courts below set aside; appellants granted unconditional leave to appear and defend the summary suit

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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

The Supreme Court drew a distinction between service that is "deemed good service" upon a partnership firm under O.30 r.3 and service that is "effective" under O.36 r.11: deeming provisions can include service that never produces its intended result of making a defendant aware of the suit. Service on one partner who submits to judgment does not bind the other partners who knew nothing of the proceedings, since O.30 r.3 does not incorporate the firm nor make the partner served an attorney for the others. The appellants were not served and had raised triable issues on the authority of the consenting partner and the firm's use of the loan, amounting to good cause. The appeal was allowed and unconditional leave to defend granted.

Facts

The respondent instituted a summary suit in the High Court against GMT Group, a firm of three partners comprising the two appellants and Matsiko Kasiimwe, claiming shs.17,000,000 he had loaned the firm under an agreement dated 5 February 2002 repayable by 30 March 2002, plus default profit of shs.50,000 per day. The day after the suit was filed, Matsiko Kasiimwe signed a consent judgment for the sums claimed on behalf of the firm. The appellants first learned of the judgment on 6 May 2002 when served with a warrant of attachment. They applied to set aside the decree and for leave to defend, contending they were never served with summons, that the consent judgment was procured by fraudulent conspiracy between Matsiko Kasiimwe and the respondent, that Matsiko lacked authority to bind the firm, and that the firm did not utilise the alleged loan. The High Court and Court of Appeal held service was effective and dismissed the application.

Issues

  1. Whether service of summons on the partnership firm was effective within the meaning of O.36 r.11 of the Civil Procedure Rules.
  2. Whether service on one partner who signs a consent judgment binds the other partners who were unaware of the suit.
  3. Whether the appellants had shown good cause, by way of a triable defence, to be granted leave to appear and defend the summary suit.
  4. Whether the consent judgment entered by one partner should be set aside.

Orders

  • Appeal allowed.
  • Judgments of the High Court and the Court of Appeal set aside.
  • Consent judgment in the summary suit set aside.
  • Appellants granted unconditional leave to appear and defend the suit.
  • Costs of the appeals in the Supreme Court and the Court of Appeal and of the application in the High Court awarded to the appellants in any event.

Key headnotes

Summary Suits — Service of Summons — "Deemed Good Service" Distinguished from "Effective Service"
Service that is "deemed good service" upon a partnership firm under O.30 r.3 of the Civil Procedure Rules is not the same as "effective service" under O.36 r.11; service is not effective where it fails to produce its intended result of making the defendant aware of the suit, even though it may be lawful and deemed good service.
Partnerships — Service on One Partner — Effect on Co-Partners
Service of summons on one partner does not bind the other partners sued in the firm name where those partners were never made aware of the suit; O.30 r.3 neither constitutes the firm a corporate legal person nor vests in the partner served any power of attorney to act for the others.
Summary Suits — Leave to Appear and Defend — Good Cause
On an application for leave to appear and defend a summary suit the court does not determine the merits of the suit; the applicant need only show good cause, which includes ineffective service of summons or a triable defence, in order to be granted leave to defend.
Partnerships — Authority of Partner — Consent Judgment Binding the Firm
Whether a partner acted with authority in entering a loan agreement or in consenting to judgment on behalf of the firm is a triable issue; a co-partner's admission of liability by signing a consent judgment does not deprive the other partners of a defence to the suit.
Meaning of "Deemed" in Legislation
The word "deemed" in legislation creates a legal or statutory fiction, assuming the existence of a fact that may not in reality exist, and may impose an artificial construction that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.

Legislation cited (7)

  • Civil Procedure Rules O.36 (formerly O.33)
  • Civil Procedure Rules O.36 r.4
  • Civil Procedure Rules O.36 r.11
  • Civil Procedure Rules O.30 r.3 (formerly O.27 r.3)
  • Civil Procedure Rules O.30 r.6
  • Civil Procedure Rules O.30 r.7
  • Rules of the Supreme Court r.90(1)

Cases cited (4)

  • Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266
  • Pirbhai Lalji v Hassanali (1962) EA 306
  • St Aubyn v Attorney General (1951) 2 All ER 473
  • G.M. Combined (U) Ltd v Eulgence Mungereza (Civil Application No. 16 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.