Wakilii

Kaweesi Agro Projects Ltd v Greenland Bank Ltd (In Liquidation) (Miscellaneous Application 68 of 2003)

High Court · [2003] UGCOMMC 136 · 2003 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte order requiring removal of caveat, arising from Miscellaneous Application No. 797 of 2002
Decision
Application to set aside ex parte order dismissed; prior order requiring removal of caveat stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed. The court held that an application to set aside an ex parte order for non-appearance must be brought under Order 9 rule 24 (dealing with physical non-appearance), not rule 9 (dealing with failure to file a defence). The distinction is material because rule 24 requires a higher standard of proof and limits the court's discretion. The applicant's claim of mishearing the hearing date was implausible given that both he and his counsel were present when the date was fixed. The auctioneers acted within their contractual authority under the mortgage deed.

Outcome

Application to set aside ex parte order dismissed; prior order requiring removal of caveat stands

Facts

The applicant Kaweesi Agro Projects Limited had lodged a caveat on mortgaged property. On 6 February 2003, the court made an ex parte order requiring the Registrar of Titles to remove the caveat after neither the applicant nor its counsel appeared in court. The applicant subsequently applied to set aside that order, claiming to have misheard the hearing date as 6 March instead of 6 February when the adjournment was given at a previous hearing in chambers. The applicant also argued that the auctioneers selling the mortgaged property had failed to follow instructions by advertising in a weekly rather than daily newspaper, selling by private treaty rather than public auction, and selling on credit rather than for cash. The respondent bank opposed the application on grounds of incompetence (wrong rule cited), failure to show sufficient cause, and lack of merit.

Issues

  1. Whether the application was competent having been brought under Order 9 rule 9 instead of Order 9 rule 24 of the Civil Procedure Rules.
  2. Whether the applicant showed sufficient cause for non-appearance in court on 6 February 2003.
  3. Whether the auctioneers exceeded their authority in the manner of selling the mortgaged property.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Orders — Distinction Between Order 9 Rule 9 and Rule 24
An application to set aside an ex parte order made due to a party's physical failure to appear in court must be brought under Order 9 rule 24 of the Civil Procedure Rules, not rule 9. Rule 9 applies only to orders passed by reason of a defendant's failure to file a defence or under Order 46. The distinction is material because rule 9 applications require a lower standard of proof and give the court unfettered discretion, whereas rule 24 applications require a higher standard of proof and limit the court's discretion.
Civil Procedure — Setting Aside Ex Parte Orders — Application of Constitutional Mandate for Substantive Justice
While Article 126 of the Constitution and section 35 of the Judicature Act mandate courts to administer substantive justice without undue regard to technicalities, where the distinction between procedural rules involves materially different standards of proof and levels of court discretion, a mere amendment or overlooking of the wrong rule cannot suffice to cure the incompetence.
Civil Procedure — Sufficient Cause for Non-Appearance — Standard of Proof
Under Order 9 rule 24 of the Civil Procedure Rules, an applicant seeking to set aside an ex parte order must demonstrate sufficient cause for non-appearance. Sufficient cause may include a mistake by an advocate (even if negligent), ignorance of procedure by an unrepresented defendant, or illness of a party. However, a claim that both the applicant and counsel jointly mistook the hearing date when both were present in chambers when it was fixed is implausible and does not constitute sufficient cause.
Civil Procedure — Sufficient Cause — Failure to Give Instructions to Advocate
Failure by a party to give proper instructions to his advocate does not constitute sufficient cause for that party's non-appearance at a hearing for purposes of setting aside an ex parte order under Order 9 rule 24 of the Civil Procedure Rules.
Banking & Finance — Mortgage — Mortgagee's Power of Sale — Exercise by Auctioneers
Where a mortgage deed grants the mortgagee bank power to sell mortgaged property by public auction or private treaty and subject to such terms and conditions as the bank in its absolute discretion thinks fit, including power to sell on terms and rescind or vary contracts without liability for loss, the mortgagee's auctioneers act within their authority in selling by private treaty through a weekly newspaper advertisement and on credit terms, even if initial instructions may have specified otherwise.

Legislation cited (6)

Cases cited (8)

  • Roussos v Virani (Supreme Court Civil Appeal No. 9 of 1993)
  • Wameru v. Ndiga (1982-88) I KAR 210
  • Patel v. EA Cargo Handling Services (1974) EA 75
  • Kimani v McConnell (1966) EA 547, at p.555
  • Sebei District Administration v. Gashali (1968) EA 300
  • Shabin Din v. Ram Parkashanand (1955) 22 EACA 48
  • Zirabamuzale v. Gorret (1962) EA 494
  • Patel v. Star Mineral Water & Ice Factory (1961) EA 454

Full judgment

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Kaweesi Agro Projects Ltd v Greenland Bank Ltd (In Liquidation) (Miscellaneous Application 68 of 2003) [2003] UGCommC 136 (26 March 2003)
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.