Wakilii

Bank One Limited v Simbamanyo Estates Limited (Miscellaneous Application No. 645 of 2020)

High Court · [2021] UGCOMMC 124 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside interlocutory judgment entered under Order 9 rule 8 following failure to file defence
Decision
Interlocutory judgment set aside; applicant granted leave to defend and challenge jurisdiction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit sworn by a principal officer who can depose to facts of the case is competent without separate express authorisation. The delay in filing the application was condoned where caused by COVID-19 lockdown disruptions and ignorance of Ugandan procedural law by a foreign litigant. The interlocutory judgment was set aside because it was erroneously entered under a rule applicable only to claims for pecuniary damages, whereas the underlying suit sought multiple declarations. The applicant was granted leave to file a notice of intention to defend and challenge jurisdiction.

Outcome

Interlocutory judgment set aside; applicant granted leave to defend and challenge jurisdiction

Facts

In November 2017, the applicant Bank One Limited, a Mauritius-incorporated financial institution, advanced US$10,000,000 to the respondent Simbamanyo Estates Limited for loan refinancing and hotel completion. After the respondent defaulted, the applicant foreclosed on security and recovered the debt. The respondent then sued the applicant and two other financial institutions seeking declarations that the applicant was unlicensed in Uganda, the transaction was illegal, and obtained by undue influence. Summons to file defence were served on the applicant in Mauritius on 19 March 2020. The applicant did not file a defence within the prescribed time. On 12 June 2020, the Registrar entered an interlocutory judgment against the applicant under Order 9 rule 8. The applicant filed the present application on 27 August 2020 to set aside the judgment, asserting that COVID-19 lockdown restrictions prevented timely response and that it has a jurisdictional objection based on a forum selection clause requiring disputes to be resolved in UK courts.

Issues

  1. Whether the affidavit in support of the application was defective for lack of express authorisation by the deponent to swear it on behalf of the applicant company.
  2. Whether the application was brought promptly or whether there was inordinate delay.
  3. Whether there was sufficient cause for the applicant's failure to file a defence within the time allowed by the Civil Procedure Rules.
  4. Whether the applicant has raised serious issues to be tried on the merits, including a preliminary objection based on forum non conveniens.
  5. Whether the interlocutory judgment was validly entered under Order 9 rule 8 of the Civil Procedure Rules.

Orders

  • Application allowed.
  • Interlocutory judgment set aside.
  • Leave granted to the applicant to file a notice of intention to defend the suit within fifteen (15) days.
  • Leave granted to the applicant to file an application disputing the jurisdiction of the court for consideration as a preliminary point of law within fifteen (15) days.
  • Costs of this application to abide the result of the suit.

Rules and key headnotes

Affidavits — Competence of Deponent — Corporate Representation
A principal officer of a company who is able to depose to the facts of the case is competent to swear an affidavit on behalf of the company without express written authorisation. The competence to swear an affidavit is pegged to the deponent's ability to depose to the facts from personal knowledge or disclosed source, not on whether the deponent holds express authorisation or power of attorney.
Affidavits — Distinction Between Representative Suits and Affidavit Evidence
The principle requiring express authorisation for representative suits does not extend to affidavit evidence. Filing a suit raises issues of locus standi; adducing evidence by affidavit is a matter of competence. The analogy between representative suits and affidavit evidence is misconceived because filing a suit in another's name requires authorisation on grounds of autonomy, whereas adducing evidence of facts already before the court does not.
Setting Aside Interlocutory Judgment — Sufficient Cause
Sufficient cause for setting aside an interlocutory judgment entered for failure to file a defence in time should be construed liberally to advance substantial justice. Ignorance of foreign procedural law by a foreign litigant, coupled with operational disruptions caused by COVID-19 lockdown measures, can constitute sufficient cause where there is no evidence of dilatory tactics, want of bona fides, or deliberate inaction.
Condonation of Delay — Ignorance of Foreign Law
Ignorance of foreign procedural law is treated as ignorance of fact under the Evidence Act. Excusing persons from consequences of actions taken in reasonable ignorance of foreign law is consistent with fairness and justice, particularly where acquiring perfect information about foreign legal rules would require disproportionate time and resources. In exceptional circumstances, such ignorance can justify condonation of delay.
Interlocutory Judgment — Scope of Order 9 Rule 8
Order 9 rule 8 of the Civil Procedure Rules authorises the Registrar to enter interlocutory judgment only where the plaint is drawn with a claim for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages. The Registrar has no power under this rule to enter interlocutory judgment where the claim seeks multiple declarations and orders rather than pecuniary damages.
Setting Aside Interlocutory Judgment — Serious Issues to be Tried
Where an applicant raises a serious issue to be tried, including a preliminary objection to jurisdiction based on a forum selection clause, the court ought to set aside an interlocutory judgment to allow full ventilation of the issues. The applicability of forum non conveniens where a forum-selection clause is sought to be relied on but some disputants are not privy to it is a serious issue requiring judicial determination.

Legislation cited (15)

Cases cited (15)

  • Mugo and others v Wanjiri and another [1970] EA 481
  • Njagi v Munyiri [1975] EA 179
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society and two others (Miscellaneous Civil Application No. 696 of 2018)
  • Amtorg Trading Corporation v United States 71 F 2d 524
  • The Co-operative Bank Limited v Kasiko John [1983] HCB 72
  • Kaingana Joy per Kaingana John v Boubon Dabo [1986] HCB 59
  • Makerere University v St Mark Education Institute and others (Civil Suit No. 378 of 1993)
  • Taremwa Kamishani and others v Attorney General (Miscellaneous Application No. 38 of 2012)
  • Edrisa Mutaasa and others v IGG, Lyantonde District Administration and another (Miscellaneous Cause No. 06 of 2010)
  • Kaheru Yasin and another v Zinorumuri David (Miscellaneous Application No. 82 of 2017)
  • Ssenyimba Vincent and two others v Birikade Peter and another (Miscellaneous Application No. 378 of 2018)
  • Rossette Kizito v Administrator General and others (Supreme Court Civil Application No. 9 of 1986)
  • Roussos v Gulam Hussein Habib Virani, Nasmudin Habib Virani (Supreme Court Civil Appeal No. 9 of 1993)
  • Sango Bay Estates Ltd v Dresdmer Bank [1971] EA 17
  • G M Combined (U) Limited v A K Detergents (U) Limited (Supreme Court Civil Appeal No. 34 of 1995)

Full judgment

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Bank One Limited v Simbamanyo Estates Limited (Miscellaneous Application No. 645 of 2020) [2021] UGCommC 124 (27 September 2021)
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.