Wakilii

Anernagy v Ekame & Anor (Civil Appeal No. 008 of 2005)

Court of Appeal · [2018] UGCA 115 · 2018 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling dismissing an application to set aside an ex-parte (default) judgment entered under summary procedure
Decision
Appeal dismissed; the ex-parte judgment against the appellant stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a defendant served with a specially endorsed plaint under Order 36 who fails to apply for leave to appear and defend within the prescribed time may only have the resulting ex-parte judgment set aside under Order 36 rule 11 by showing ineffective service or another good cause, namely a genuine triable defence. The appellant's claim that the mineral supply contract was illegal for lack of a licence, raised nearly six months late, was found to be an afterthought and a sham defence, particularly as he was in pari delicto and produced no evidence. The appeal was dismissed with costs.

Outcome

Appeal dismissed; the ex-parte judgment against the appellant stands

Facts

The respondents supplied the appellant with 2,100 kg of tantalite ore at an agreed price of US$21 per kg, totalling US$38,750. The appellant paid US$5,350 and guaranteed the balance with a cheque dated 6 July 2000, but breached the contract, leaving US$33,000 unpaid. The cheque was withdrawn before presentation. On 24 June 2004 the respondents filed a High Court suit under summary procedure to recover the balance. Although served with summons and the plaint, the appellant did not apply for leave to appear and defend within the prescribed time. An ex-parte (default) judgment was entered against him. Nearly six months later, on 24 November 2004, the appellant applied to set aside the judgment under Order 33 rule 11 (now Order 36 rule 11), arguing he was wrongly sued and that the contract was illegal because the parties lacked a mineral licence under section 72 of the Mining Act. The application was dismissed with costs, prompting this appeal.

Issues

  1. Whether the appellant disclosed good cause to set aside the ex-parte judgment under Order 36 rule 11 of the Civil Procedure Rules.
  2. Whether the trial judge erred in failing to address the points of law and authorities on illegality of the contract.
  3. Whether the suit contract was illegal and unenforceable for want of a mineral licence under section 72 of the Mining Act.

Orders

  • Appeal dismissed.
  • Costs of the appeal and of the trial court awarded to the respondents.

Rules and key headnotes

Summary Procedure — Order 36 — Setting Aside Ex-Parte Judgment — Good Cause
Where a defendant served with a specially endorsed plaint under Order 36 fails to apply for leave to appear and defend within the prescribed time, the resulting ex-parte judgment may be set aside under Order 36 rule 11 only where the court is satisfied that service of summons was ineffective or that there is another good cause, being evidence that the defendant has a genuine triable defence and not a sham or frivolous one.
Summary Procedure — Order 36 — Exercise of Judicial Discretion — Onus on Defendant
Leave to defend under Order 36 rule 11 is an exercise of judicial discretion, and the onus lies on the defendant to show a triable issue and that he deserves the exercise of discretion in his favour; a dilatory defendant who ignores summons and returns months later with a defence risks having it treated as an afterthought and a sham.
Illegality — In Pari Delicto — Unlicensed Dealing
A party who participated in an allegedly illegal contract is in pari delicto and cannot raise the illegality to escape liability where the fault is equal; bare, unsubstantiated allegations of illegality, unsupported by evidence such as a register of licences, will not amount to a genuine triable defence.

Legislation cited (7)

Cases cited (8)

  • Pandya v R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kimani v McConnel (1966) EA 547
  • Capt. Philip Ongom v Catherine Nyero Owata (Civil Appeal No. 14 of 2001)
  • Post Bank (U) Ltd v Abdu Ssozi (Civil Appeal No. 8 of 2015)
  • Geoffrey Gatete and Another v William Kyobe (Civil Appeal No. 7 of 2005)
  • Kotecha v Mohammed [2002] EA 112
  • Mistry Amar Singh v Serwano Wofunira Kulubya (1963) EA 408

Full judgment

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

Anernagy Vs Ekame & Anor (Civil Appeal No. 008 of 2005) [2018] UGCA 115 (1 November 2018)
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.