Wakilii

Kalson Agrovet Concern Ltd and Another v ECOBank Uganda Ltd (Miscellaneous Application No. 1049 of 2019)

High Court · [2023] UGCOMMC 1 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of ruling striking out defence and entering judgment, arising from Civil Suit No. 573 of 2012
Decision
Application allowed; ruling striking out defence set aside; applicants granted leave to file fresh defence within 15 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed an application for review of a ruling that had struck out the applicants' defence and entered judgment against them. The court held that the applicants had discovered new and important evidence—bank statements and letters of credit not previously available—which they had obtained through due diligence after the original ruling. The court rejected a preliminary objection that review was unavailable where an appeal lay as of right, holding that a party may choose review over appeal. The ruling striking out the defence was set aside and the applicants were granted leave to file a fresh defence.

Outcome

Application allowed; ruling striking out defence set aside; applicants granted leave to file fresh defence within 15 days

Facts

The respondent bank filed Civil Suit No. 573 of 2012 claiming UGX 517,648,784.35 arising from an alleged loan facility agreement dated 25 November 2009 between the bank and the first applicant, guaranteed by the second applicant. The applicants filed a defence but it was struck out on 2 November 2017 following a preliminary objection that it contained only general denials and disclosed no reasonable answer. Judgment was entered for the liquidated sum. The applicants claimed they had been unable to obtain necessary bank statements and documents from the respondent to file a proper defence. They stated that the respondent only availed the documents on 21 June 2018 after intervention by the Bank of Uganda's Director of Commercial Banking, by which time judgment had already been entered. The second applicant learned of the judgment when contacted by a bailiff for execution. The applicants brought this application for review, arguing they had discovered new evidence and that their former counsel's failure to file a proper defence was an honest mistake.

Issues

  1. Whether this is a fit and proper case for review under the law.
  2. Whether the Applicants are entitled to the reliefs sought.

Orders

  • The ruling of the Court in Civil Suit No. 573 of 2012 dated 2nd November 2017 striking out the Applicants' Written Statement of Defence and entering judgement for a liquidated sum of UGX 517,648,784.35 is reviewed and set aside.
  • The Applicants are granted leave to file a Written Statement of Defence within 15 days from the date of this ruling.
  • The costs of this Application shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Review of Judgment — Right to Choose Review Over Appeal
Where a decree or order is appealable as of right, the law creates a right to appeal but not an obligation to do so. A party may elect to pursue a review under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules instead of preferring an appeal, even where an appeal lies as of right.
Civil Procedure — Review of Judgment — Discovery of New and Important Evidence
An application for review may succeed on the ground of discovery of new and important matter of evidence where the applicant demonstrates that, after the exercise of due diligence, the evidence was not within their knowledge or could not be produced at the time the decree was passed or order made. Bank statements and letters of credit obtained after judgment through persistent requests and intervention by a regulatory authority constitute new and important evidence justifying review where they were not available when the original defence was filed.
Civil Procedure — Review of Judgment — Sufficient Reason
The ground of 'sufficient reason' under Order 46 Rule 1(1) of the Civil Procedure Rules must relate to a factor analogous to discovery of new and important evidence or error apparent on the face of the record. Where a party filed a notice to produce documents informing the court of ongoing discovery, counsel's alleged failure to inform the court of the discovery process does not constitute sufficient reason for review.
Evidence — Documentary Evidence — Proof of Delivery
Where a party claims to have delivered documents to an opposing party, the burden is on that party to prove delivery. A letter referring to an acknowledgment of receipt, without the actual acknowledgment attached or produced, does not constitute proof of delivery.

Legislation cited (8)

Cases cited (8)

  • Uganda Development Bank Ltd v Ringa Enterprises and Another (Miscellaneous Application No. 188 of 2017)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Captain Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Mugisha Abraham and Others v G4 Security Services (U) Ltd (Miscellaneous Application No. 282 of 2010)
  • FX Mubuke v UEB (High Court Miscellaneous Application No. 98 of 2005)
  • Apollo Wasswa and Others v Nsabwa Ham (Court of Appeal No. 288 of 2016)
  • Chhaju Ram v. Neki (1992), 49 I.A 144
  • Yusufu v. Nokrach [1971] EA 104

Full judgment

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

Kalson Agrovet Concern Ltd and Another v ECOBank Uganda Ltd (Miscellaneous Application No. 1049 of 2019) [2023] UGCommC 1 (4 January 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.