Wakilii

Kamwiine v Southern Sudan Sudd Co. Ltd (HCT-OO-CC-MA-0606-2011)

High Court · [2011] UGHC 219 · 2011 Application Partly Allowed — Conditional Leave to Defend AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree in summary suit arising from dishonoured cheques
Decision
Defendant granted conditional leave to file a defence; ex parte judgment set aside upon deposit of security

Observed later treatment

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Holding

The court held that service was effective where the process server identified the defendant through mobile telephone communication and served her at Kampala Central Police Station, with acknowledgment witnessed by signature. The ex parte judgment and decree were set aside conditionally: the defendant was required to deposit security of UGX 40 million and a certificate of title before being granted leave to file a defence.

Outcome

Defendant granted conditional leave to file a defence; ex parte judgment set aside upon deposit of security

Facts

The plaintiff sued the defendant on dishonoured cheques totalling UGX 60 million and a written undertaking dated 18 June 2010. The defendant had also relinquished a Mercedes Benz ML Class vehicle to the plaintiff. An ex parte judgment was entered when the defendant failed to file a defence, and she was committed to civil prison in execution. The defendant claimed she had lent money to the plaintiff's attorney (David Nak Malith) and travelled to Southern Sudan to recover monies owed to his company by the Government of Southern Sudan. She stated she recovered Sudanese Pounds 452,000, paid SP 200,000 to the plaintiff's agent to complete works, and used the balance for expenses. She further claimed the cheques and undertaking were signed under duress while detained at a police station in Southern Sudan. The plaintiff's advocate deposed that he served summons on the defendant on 4 March 2011 at Kampala Central Police Station after arranging the meeting by mobile telephone, and that she acknowledged service by signature. The defendant subsequently attended the plaintiff's lawyers' chambers on 8 March 2011 to seek amicable resolution, but this failed.

Issues

  1. Whether service of summons and plaint was effectively made on the defendant in accordance with Order 5 of the Civil Procedure Rules.
  2. Whether the defendant has demonstrated good cause for setting aside the ex parte judgment and decree under Order 36 rule 11 CPR.
  3. Whether the defendant has a viable defence on the merits to justify leave to defend the summary suit.

Orders

  • The ex parte judgment and decree passed against the defendant on 18 March 2011 are set aside.
  • Execution is set aside and the defendant shall be released from prison upon depositing security.
  • The defendant shall deposit security of a certificate of title for land at Makenke, Mbarara Municipality together with a valuation report, and UGX 40,000,000.
  • Security must be deposited within 14 days from the date of this ruling.
  • Upon depositing the security, the defendant shall file her defence within 7 days.
  • Costs of the application are in the cause.

Rules and key headnotes

Service of Process — Effective Service — Identification by Mobile Telephone
Service of summons is effective where the serving officer arranges a meeting with the defendant by mobile telephone, the defendant identifies herself during a telephone conversation, the parties meet at the agreed location, and the defendant acknowledges receipt by signature, notwithstanding the absence of a third-party witness to identify the defendant to the serving officer.
Service of Process — Affidavit of Service — Mandatory Requirements under Order 5 rule 16 CPR
The requirement under Order 5 rule 16 CPR to name a person identifying the defendant to the serving officer in an affidavit of service applies only 'if any' such person exists; it is not mandatory in all circumstances and the rules of procedure must be interpreted within contemporary communication contexts including identification by mobile telephone.
Disputed Signatures — Comparison under Evidence Act s.72(1)
Where a party denies having signed a document acknowledging service of process, the court may resolve the dispute by comparing the disputed signature with other signatures admitted or proved to have been made by that party on other documents, pursuant to section 72(1) of the Evidence Act.
Setting Aside Ex Parte Judgment — Order 36 rule 11 — Good Cause and Defence on Merits
Under Order 36 rule 11 CPR, an ex parte judgment may be set aside where service was ineffective or for other good cause; the court must also be satisfied that the defendant has a viable defence on the merits before granting unconditional leave to defend.
Bills of Exchange — Actions on Dishonoured Cheques — Cross-Claims
A bill of exchange including a cheque is to be treated as cash; the holder is entitled to summary judgment and a defendant with a cross-claim for damages under a contract must raise that claim in a separate action and cannot use it as a defence to an action on the dishonoured instrument.
Duress and Coercion — Burden of Proof
A defendant who alleges that cheques and a written undertaking were executed under duress or coercion bears the burden of adducing evidence to support that allegation; mere assertion without corroboration such as police reports or evidence of complaint is insufficient to establish the defence.
Conditional Leave to Defend — Security
Where the court sets aside an ex parte judgment but finds that the defendant's defence is weak or uncertain, the court may grant leave to defend conditionally by requiring the defendant to deposit security in court, including monetary security and real property with valuation, before filing a defence.

Legislation cited (10)

Cases cited (9)

  • Kanyemibwa v Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Ssesanga v Greenland Bank (HCT-00-CC-MA-406-2010)
  • Kisawuzi v Kayando (HCT-00-CC-MA-045-2011)
  • Ndawula & Others v Jain (Miscellaneous Application No. 624 of 2008)
  • Kotecha v Mohammed [2002] 1 EA 112
  • Saw v Hakim 5 TLR 72
  • Ray v Barker 4 Ex DI 279
  • James Lamont Company Limited v Hyland Limited [1950] 1 KB 585
  • Brown Shipley and Company Limited v Alicia Hosiery Limited [1966] Lloyd's Rep 668

Full judgment

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

Kamwiine v Southern Sudan Sudd Co. Ltd (HCT-OO-CC-MA-0606-2011) [2011] UGHC 219 (31 October 2011)
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.