Wakilii

Gamubaka Fred Cedric v Excel Insurance Company Ltd and Another (Misc. Application No. 1403 of 2022)

High Court · [2023] UGCOMMC 302 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree arising from HCCS No. 858 of 2017
Decision
Application to set aside exparte judgment dismissed; original judgment remains in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the misnaming of the 2nd respondent as 'Concerted Engineers and Contractors Limited' instead of 'Concerted Contractors and Engineers Limited' was a misnomer, not a fatal defect. The applicant had participated in and signed contractual documents using the erroneous name from inception and could not approbate and reprobate by later claiming the entity was non-existent. The principle that one may be sued by the name in which they executed a deed applied. Application to set aside exparte judgment dismissed with costs.

Outcome

Application to set aside exparte judgment dismissed; original judgment remains in force

Facts

Excel Insurance Company issued a performance guarantee of UGX 469,524,000 payable on demand to UNRA in favour of Concerted Engineers and Contractors Ltd for a road maintenance contract. Gamubaka Fred Cedric executed a personal guarantee and counter-guarantee. The contract was terminated for fundamental breach. UNRA called in the performance bond and Excel paid the sum. Excel sued the company and Gamubaka for recovery. The defendants did not enter appearance despite service including by substituted service advertised in the Monitor newspaper on 29 October 2019. Exparte judgment was entered for UGX 469,524,000 with 15% interest per annum. Gamubaka later applied to set aside the judgment, arguing he was never served and that the company sued was non-existent due to variations in its name across court documents.

Issues

  1. Whether the applicant was effectively served with summons on a specially endorsed plaint requiring the applicant to file an application for leave to appear and defend the suit.
  2. Whether the application raises trial issues on merit.
  3. Whether there is sufficient cause to set aside the exparte judgment and decree.
  4. Whether the wrong description of the 2nd respondent constitutes a fatal defect or a misnomer capable of correction by amendment.

Orders

  • Application dismissed.
  • Costs awarded to the 1st respondent.
  • Related Misc. Application No. 1448 of 2022 also dismissed with costs to the 1st respondent.

Rules and key headnotes

Misnomer — Wrong Description of Party — Amendment
Where a defendant has executed a deed by a wrong name, it is proper to sue him by the name in which he executed it. A misnomer in the description of a party is not fatal and can be corrected by amendment where the correct party is identifiable and intended.
Misnomer — Test for Determining Misnomer
For the doctrine of misnomer to apply: (1) the author intended to name the subject to whom the name is now being attributed; and (2) a reasonable person would attribute the name to the person to whom it is now intended to be attributed. Misnomer arises when the author merely misnames the correct person as opposed to not being able to identify the correct person.
Approbation and Reprobation — Election
A party cannot approbate and reprobate the same instrument. One cannot accept and reject the same transaction; a person cannot say at one time that a transaction is valid and obtain an advantage on that footing, then turn around and say it is void to secure some other advantage.
Setting Aside Exparte Judgment — Clean Hands
A party who participated in and signed contractual documents using a particular name from inception, thereby condoning a misnomer, cannot later seek to set aside judgment on the ground that the entity sued under that name is non-existent. Such a party does not come to court with clean hands.

Legislation cited (2)

Cases cited (6)

  • Furt Hall Bakery Supply Company v Fredrick Muigai Wangos (1959) E.A. 474
  • Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Misc. Application No. 576 of 2006)
  • Kaggwa Micheal v Olal Mark & 6 Others (Civil Appeal No. 010 of 2017)
  • Access Bank P/c Vs Agege Local Government and Anor (L640 of 2014) NGCA 35
  • EMESPO J. CONTINENTAL LTD V CORONA SHIFAH - RTSGELLSCHAFT & ORS (2006) 5 S.C. (PT I) 1970
  • Verschures Cremaries Ltd v Steamship Co Ltd (1921) 2 KB 608

Full judgment

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

Gamubaka Fred Cedric v Excel Insurance Company Ltd and Another (Misc. Application No. 1403 of 2022) [2023] UGCommC 302 (13 November 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.