Wakilii

Abdul Karim and Another v Barclays Bank of Uganda Limited (Civil Suit 348 of 80)

High Court · [1993] UGHC 38 · 1993 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under Order 33 rule 11 and Order 48 rule 1 to set aside a decree in default obtained in the original suit
Decision
Application to set aside decree dismissed. Decree in default remains operative.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside the decree in default. Held that substituted service ordered when the applicant could not be traced at his last known address was effective, notwithstanding his subsequent assertion that he was in exile. The applicant had an obligation to inform the bank of his change of address. Demand in writing was proved by the respondent through certificate of posting to the applicant's address. The contract of guarantee was not frustrated by the applicant's exile as the security was realisable in Uganda.

Outcome

Application to set aside decree dismissed. Decree in default remains operative.

Facts

Barclays Bank sued Hussein Abdullah and Abdul Karim Abdullah in 1980 to recover shs. 251,856.80 from the first defendant as principal debtor and the second defendant as guarantor under a written guarantee dated 25 May 1973 limiting liability to shs. 240,000. When the defendants could not be traced at their last known addresses, the court ordered substituted service through newspaper publication in Uganda Times and Munno. Neither defendant entered appearance. A decree in default was entered against both defendants. Execution was levied against the second defendant's house at Ntinda. In 1993, the second defendant applied to set aside the decree, claiming he had been in exile in Sudan from 1979 to 1989 and thus service was ineffective, no written demand was made as required under the guarantee, the contract was frustrated by his exile, and his liability was limited to shs. 240,000.

Issues

  1. Whether service of summons upon the applicant was effective where substituted service was ordered and effected through publication while the applicant was in exile.
  2. Whether good cause existed to set aside the decree in default.
  3. Whether liability under the contract of guarantee arose in the absence of written demand to the guarantor.
  4. Whether the contract of guarantee was frustrated by the applicant's exile.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Substituted Service — Effectiveness — Party Outside Jurisdiction
Where a defendant cannot be traced at his last known address and the court grants an order for substituted service on that basis, such service is effective notwithstanding the defendant's subsequent assertion that he was outside jurisdiction at the time, particularly where he failed to inform the plaintiff of his change of address.
Setting Aside Decree in Default — Burden of Proof
Where an applicant seeks to set aside a decree in default on the ground that a condition precedent to liability was not fulfilled, the burden lies on the applicant to prove the negative assertion, not on the respondent to prove compliance.
Guarantee — Written Demand — Proof of Compliance
Where a contract of guarantee requires written demand as a condition precedent to liability, proof by certificate of posting addressed to the guarantor's known address is sufficient to establish that demand was made, even if the guarantor claims not to have received it.
Frustration — Guarantor's Exile — Security Realisable
A contract of guarantee is not frustrated by the guarantor's absence from jurisdiction or inability to be traced where the security for payment is situated within jurisdiction and realisable, and no act of God or other commensurate circumstance has rendered performance impossible.

Legislation cited (3)

Cases cited (1)

  • Caltex Oil (U) Ltd v Kyobe [1988/90] HCB 141

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abdul Karim and Another v Barclays Bank of Uganda Limited (Civil Suit 348 of 80) [1993] UGHC 38 (21 December 1993)
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.