Birungi Moses v Exim Bank (U) Ltd (Miscellaneous Application No. 1030 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court set aside the default judgment entered against the applicant in a summary suit for recovery of money under a mortgage agreement. The applicant was never served with summons and raised substantial triable issues of fraud and forgery regarding the mortgage documents, asserting his signature was forged and he never executed the mortgage. The court held that where service is ineffective and the defendant demonstrates bona fide triable issues, the default judgment must be set aside and unconditional leave to defend granted.

Outcome

Default judgment set aside; applicant granted unconditional leave to defend; matter to proceed to trial

Facts

The respondent bank instituted a summary suit against the applicant and others for recovery of UGX 294,840,386 allegedly due under a mortgage agreement executed as security for a loan advanced to M/s. Springbok Logistics Ltd. The respondent contended the applicant executed a mortgage over land comprised in Busiro Block 413 Plot 439 at Bwerenga. On 16 May 2023, the respondent obtained a default judgment and commenced execution proceedings. The applicant contended he was never served with summons, was never a shareholder, director, or guarantor of the borrower company, and that the mortgage documents bore his forged signature. He stated he had executed a land sale agreement with Springbok Logistics Ltd, and that a director, Olobo Eric Moro, never paid him and disappeared with the duplicate certificate of title. The respondent did not file an affidavit in reply.

Issues

1. Whether the default judgment issued in High Court Civil Suit No. 0134 of 2023 should be set aside.
2. Whether execution in E.M.A No. 008 of 2024 should be stayed.
3. Whether the applicant should be granted unconditional leave to appear and defend the summary suit.

Orders

• The default judgment and decree entered in HCCS No. 0134 of 2023 are hereby set aside.
• Execution proceedings in E.M.A No. 008 of 2024 are set aside.
• The applicant is granted unconditional leave to appear and defend HCCS No. 0134 of 2023.
• The applicant shall file a Written Statement of Defence within seven (7) days from the date of this ruling.
• The respondent shall file a reply to the Written Statement of Defence within five (5) days from the filing of the Written Statement of Defence.
• The parties are directed to file their pre trial documents within 21 days from the date of the reply to the Written Statement of Defence.
• The parties are to appear for the scheduling conference of the case on the 12th day of February 2026 at 9am.
• Costs of this application shall abide the outcome of the main suit.

Rules and key headnotes

Legislation cited (10)

• Constitution of the Republic of Uganda 1995 Article 28
• Civil Procedure Act Cap. 282 s.98
• Judicature Act Cap. 16 s.33
• Civil Procedure Rules S.I 71-1 Order 36 rule 11
• Civil Procedure Rules S.I 71-1 Order 52 rules 1 & 3
• Civil Procedure Rules S.I 71-1 Order 5 rule 10
• Civil Procedure Rules S.I 71-1 Order 36 rule 3(1)
• Civil Procedure Rules S.I 71-1 Order 36 rule 4
• Civil Procedure Rules S.I 71-1 Order 36 rule 8
• Civil Procedure Rules S.I 71-1 Order 15 rule 3

Cases cited (12)

• Okello Okidi Simmons v Acacia Finance Ltd (HCMA No. 842 of 2015)
• Mbabazi Sylvia v Kagoya P. Dinah (Civil Appeal No. 13 of 2020)
• Lydia Naiga v ASK Services Ltd (MA No. 482 of 2020)
• Maluku Interglobal Trade Agency Ltd v Bank of Uganda [1985] HCB 65
• Kinyanjui and another v Thande and another [1995-1998] 2 EA 159
• Continental Butchery Ltd v Nthiwa (Civil Appeal No. 35 of 1977)
• Geoffrey Gatete and another v William Kyobe (SCCA No. 07 of 2005)
• Board of Governors Nebbi Town S.S.S v Jaker Food Stores Limited (Miscellaneous Civil Application No. 0062 of 2016)
• Visare Uganda Limited v Muwema and Co. Advocates and Solicitors (Miscellaneous Application Nos. 0826 and 0827 of 2023)
• Makula International Ltd v His Eminence Cardinal Nsubuga and Anor [1982] HCB 15
• Crane Bank Ltd v Nipun Narottam Bhatia (Civil Appeal No. 02 of 2014)
• Madhvani Group Ltd v Alexander David Ssimbwa (MA No. 1160 of 2012)

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