Wakilii

Ahairwe v Standard Chartered Bank (U) Limited (Miscellaneous Application 1851 of 2023)

High Court · [2023] UGCOMMC 148 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and stay execution arising from Civil Suit No. 757 of 2018
Decision
Application dismissed; ex parte judgment in Civil Suit No. 757 of 2018 remains in force

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 an ex parte judgment and stay execution. Held that service of hearing notices was duly effected when the applicant's advocates on record refused to accept service and the applicant was personally informed of the hearing date by telephone. The applicant failed to demonstrate sufficient cause for non-attendance, as loss of contact with counsel without evidence of diligent follow-up and counsel's failure to attend court constitute negligence that cannot excuse the applicant.

Outcome

Application dismissed; ex parte judgment in Civil Suit No. 757 of 2018 remains in force

Facts

The applicant was defendant in Civil Suit No. 757 of 2018 brought by the respondent bank for recovery of loan monies. He filed a defence through Niwagaba & Mwebesa Advocates but subsequently lost contact with the firm. A new firm, M/s Obed Mwebesa & Associated Advocates, filed notice of instructions on 31st January 2022. When the respondent's advocates attempted to serve hearing notices for a 15th December 2022 hearing, the new firm refused to accept service stating they had lost contact with the client. A process server contacted the applicant by telephone and informed him of the hearing date, but the applicant stated he was in Kisoro and had not engaged new lawyers. Neither the applicant nor his counsel attended the hearing. An ex parte judgment was entered on 27th January 2023. The applicant only became aware when execution proceedings commenced in June 2023 and filed this application to set aside the judgment.

Issues

  1. Whether the ex parte judgment in Civil Suit No. 757 of 2018 should be set aside on grounds that service of summons was not duly made.
  2. Whether the applicant was prevented by sufficient cause from appearing at the hearing on 15th December 2022.
  3. Whether a stay of execution of the judgment should be granted pending determination of the application to set aside.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Deemed Service — Refusal by Advocate on Record to Accept Service
Where a firm of advocates on record refuses to accept service of court process, having no lawful right to decline service or refuse to endorse acknowledgment, the advocates are deemed to have been served.
Civil Procedure — Service of Process — Alternative Service — Telephone Notice
Where a party takes all reasonable measures to effect service and the party to be served or their counsel deliberately frustrates efforts to reach and serve them, depending on the circumstances, the court may deem service to have been made. Personal notification by telephone of a hearing date may constitute effective service where physical service is frustrated by the party's conduct.
Civil Procedure — Representation — Advocate on Record — Cessation of Instructions
A firm of advocates that is on record is deemed to continue having instructions until a notice of cessation of instructions is filed on record. Until such notice is filed, the advocate remains the proper party for service of court process.
Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause Distinguished from Good Cause
Sufficient cause and good cause are not the same. Good cause requires a party to show a legally sufficient reason why the court should exercise discretion in their favour and may exist despite the party's own mistake. Sufficient cause implies a higher standard, requiring a party to show they are not guilty of default or that the default cannot be attributable to them. The Civil Procedure Rules use these expressions in different contexts intentionally to apply different standards.
Civil Procedure — Setting Aside Ex Parte Judgment — Mistake of Counsel — Limits
The principle that mistake or error of counsel should not be imputed to their client is not absolute and depends on the circumstances of each case. Inordinate delay and negligence to observe or ascertain plain requirements of law are not mistakes of an advocate from which a client can be excused. An advocate's failure to attend court, without more, constitutes negligence to observe plain requirements of law and does not constitute sufficient cause warranting setting aside of an ex parte judgment.
Civil Procedure — Client's Duty — Diligent Pursuit of Case
The act of engaging an advocate does not constitute an abdication of the litigant's duty to diligently pursue their claim or defence. The client must consistently check with their advocate and find out the progress of the suit. Loss of contact with counsel without evidence of diligent follow-up on the case does not constitute sufficient cause for failure to attend court.
Civil Procedure — Stay of Execution — Grounds
Once judgment is entered, only the overbearing interests of justice or the existence of circumstances referred to in Order 22 Rule 23 of the Civil Procedure Rules are sufficient reasons for grant of stay of execution. Mere requirement to comply with a decision of court cannot be grounds for stay, even if it will impose hardship, unless all other grounds for grant of stay in the applicable law or rules exist.

Legislation cited (16)

Cases cited (24)

  • Dr. Sheik Ahmed Kisuule v Greenland Bank Ltd (Miscellaneous Application No. 2 of 2012)
  • Kapiri v International Investments Ltd & 5 Others (Miscellaneous Application No. 160 of 2014)
  • ABSA Bank v Electromaxx (U) Ltd (Miscellaneous Application No. 176 of 2020)
  • Gids Consults Limited & Another v Naren Metha (Miscellaneous Application No. 864 of 2022)
  • Abdul Kawuki v Habib Lukwago (Miscellaneous Application No. 1146 of 2022)
  • National Resistance Movement v Kampala Modernity & Printers Ltd (Miscellaneous Application No. 6 of 2016)
  • Nicholas Roussos v Gulamhussein Habib Virani & Another (Supreme Court Civil Appeal No. 9 of 1993)
  • Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Nyanzi Ssentamu v Electoral Commission & Others (Court of Appeal Miscellaneous Application No. 10 of 2021)
  • Andrew Mubiru v Susan Kasimbi (Miscellaneous Application No. 301 of 2015)
  • Parimal v Veema Civil Appeal No. 1467 of 2011
  • Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Kateyo Eliezer v Makerere University (Miscellaneous Application No. 147 of 2021)
  • Bishop Jacinto Kibuuka v Uganda Catholic Lawyers Fraternity & Others (Miscellaneous Application No. 696 of 2018)
  • Kalyesubula Fred v Obey Christopher (Miscellaneous Application No. 171 of 2016)
  • Eriga Jos v Vuzzi Azza & Others (Miscellaneous Application No. 9 of 2017)
  • Fred Byamukama & Another v Micheal Katungye (Miscellaneous Application No. 773 of 2023)
  • Femisa International Limited & Another v Equity Bank (U) Ltd (Miscellaneous Application No. 357 of 2022)
  • Joseph Muyinza v William Tumusiime (Miscellaneous Application No. 820 of 2023)
  • Byaruhanga Mahmood v Top Finance Bank Limited (Miscellaneous Application No. 250 of 2023)
  • Augustine Kasozi v Arvind Patel (Miscellaneous Application No. 503 of 2021)
  • Luwa Luwa Investments v Uganda Revenue Authority (Miscellaneous Application No. 1336 of 2022)
  • Uganda Debt Network v Edward Ronald Sekyewa (Miscellaneous Application No. 1657 of 2023)

Full judgment

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

Ahairwe v Standard Chartered Bank (U) Limited (Miscellaneous Application 1851 of 2023) [2023] UGCommC 148 (19 December 2023)
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.