Wakilii

Kato Luguza & Anor v Nakafero & Anor (Civil Appeal No. 37 of 2011)

High Court · [2013] UGHCLD 71 · 2013 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ruling of Chief Magistrate dismissing application to set aside ex parte judgment and decree
Decision
Appeal dismissed with costs; ex parte judgment and decree remain in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the appellants failed to adduce cogent evidence that they had instructed counsel to file a defence, that their dilatory conduct between service of summons and their arrest showed they shared blame with their counsel for the ex parte judgment, and that the Chief Magistrate properly relied on affidavit evidence that complied with Order 19 of the Civil Procedure Rules. The court upheld the refusal to set aside the ex parte judgment where no plausible defence was demonstrated.

Outcome

Appeal dismissed with costs; ex parte judgment and decree remain in force

Facts

The appellants were defendants in Civil Suit No. 2134 of 2010 before the Chief Magistrate's Court of Mengo. They were served with summons on 12 November 2010. An ex parte judgment and decree were entered against them. On 13 May 2011, the appellants were arrested in execution proceedings. They then filed Miscellaneous Application No. 611 of 2011 seeking to set aside the ex parte judgment, contending that they had instructed M/s Ssengooba & Co Advocates to file a defence but the lawyer failed to do so because a clerk fell sick. The Chief Magistrate dismissed the application, finding that the appellants had not established they gave instructions or that they had a plausible defence. The appellants appealed to the High Court Land Division.

Issues

  1. Whether the learned trial magistrate erred in holding that the appellants never instructed M/s Ssengooba & Co Advocates to file a defence on their behalf.
  2. Whether the learned chief magistrate erred in holding the appellants responsible for the negligent acts of their advocate.
  3. Whether the learned chief magistrate failed to judicially evaluate the evidence on record.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Burden of Proof — Requirement to Demonstrate Instructions to Counsel
An applicant seeking to set aside an ex parte judgment on the ground that counsel failed to file a defence must adduce cogent evidence proving that instructions were actually given to counsel, and the burden is not discharged by unexhibited letters submitted through counsel at the stage of written submissions.
Civil Procedure — Affidavit Evidence — Hearsay — Information on Belief with Source Disclosed
Affidavit evidence based on information is admissible where the source of the information is disclosed in accordance with Order 19 rule 3(1) of the Civil Procedure Rules, and such evidence is not hearsay; sections 58 and 59 of the Evidence Act do not apply to affidavit evidence.
Civil Procedure — Affidavit Evidence — Uncontroverted Facts
Where a party fails to deny or rebut facts deponed to in an affidavit, those facts are presumed to have been accepted, and the deponent need not prove them again.
Civil Procedure — Setting Aside Ex Parte Judgment — Diligence of Litigant — Dilatory Conduct
A litigant who has been served with summons and claims to have instructed counsel cannot sit passively for seven months without following up the progress of the case; such conduct amounts to dilatory conduct and negligence on the part of the litigant, and the litigant shares blame with counsel where an ex parte judgment is entered.
Civil Procedure — Setting Aside Ex Parte Judgment — Plausible Defence
Before setting aside an ex parte judgment, the court must be satisfied not only that the defendant has a reasonable excuse for failing to appear, but also that there is merit in the defence; failure to attach a draft defence or otherwise demonstrate a plausible defence to the application is fatal.

Legislation cited (6)

Cases cited (8)

  • Eric Tibegega v Narsencio Begumisa and 3 Others (Supreme Court Criminal Appeal No. 18 of 2002)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Central Electricals International and Another v Prestige Investments Ltd (Miscellaneous Application No. 625 of 2011)
  • Life Insurance Corporation of India V Panesar [1967] EA 615
  • Massa V Achen [1978] HCB 297
  • Kyobe Ssenyange V Naks Ltd [1980] HCB 30
  • Megera & Another V Kakungulu [1976] HCB 30
  • Bogere Moses V U [1996] HCB 5

Full judgment

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

Kato Luguza & Anor v Nakafero & Anor (Civil Appeal No. 37 of 2011) [2013] UGHCLD 71 (11 July 2013)
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.