Wakilii

Kibibu Engineering Co Ltd & Ors v Fanrong Ltd (Miscellaneous Application No. 371 of 2016)

High Court · [2016] UGCOMMC 68 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Applications to set aside ex parte judgment and decree entered under Order 9 rule 6 of the Civil Procedure Rules
Decision
Ex parte judgment and decree set aside as against the second, third and fourth defendants. They may now file their defence and the matter will proceed inter partes. Default judgment against the first defendant stands.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service of summons must be made on each defendant personally or on an agent empowered to accept service. Service on the second defendant did not constitute valid service on the third and fourth defendants in the absence of evidence that he was their recognised agent. The ex parte judgment and decree against the second, third and fourth defendants was set aside for defective service under Order 5 rule 9 of the Civil Procedure Rules.

Outcome

Ex parte judgment and decree set aside as against the second, third and fourth defendants. They may now file their defence and the matter will proceed inter partes. Default judgment against the first defendant stands.

Facts

The respondent obtained ex parte judgment under Order 9 rule 6 against four defendants in Civil Suit No. 121 of 2015 for a liquidated demand of UGX 80,000,000. The respondent proceeded to execute the decree, issuing a warrant of arrest against the second, third and fourth defendants. The third defendant was arrested and committed to civil prison. The affidavit of service showed that the process server attempted to serve the second defendant on 5 March 2015 at the offices of the first defendant company. The second defendant did not acknowledge service. The process server left copies of summons for the third and fourth defendants with the second defendant after asking whether he would receive service on their behalf, to which he responded that he would do so after consulting his lawyers. No further service was effected on the third and fourth defendants. The applicants became aware of the judgment only when execution commenced.

Issues

  1. Whether the second, third and fourth defendants/applicants were properly served with summons in accordance with the Civil Procedure Rules.
  2. Whether service on the second defendant constituted valid service on the third and fourth defendants.
  3. Whether the ex parte judgment and decree entered under Order 9 rule 6 should be set aside for defective service.

Orders

  • Miscellaneous Application Nos. 371 and 372 of 2016 succeed.
  • Judgment and decree against the second, third and fourth defendants in Civil Suit No. 121 of 2015 set aside.
  • Execution proceedings against the second, third and fourth defendants set aside.
  • Default judgment against the first defendant (Kibibu Engineering Co Ltd) remains as decreed.
  • Costs of the application awarded to Alan Kihangire (4th applicant) only.
  • No costs awarded to the 2nd and 3rd applicants.
  • Application of the first applicant dismissed with no order as to costs.

Rules and key headnotes

Service of Process — Multiple Defendants — Requirement for Individual Service
Where there are multiple defendants, service of summons must be made on each defendant individually in accordance with Order 5 rule 9 of the Civil Procedure Rules, unless one defendant is a recognised agent empowered to accept service on behalf of the others.
Service of Process — Recognised Agent — Definition and Requirements
A recognised agent under Order 3 rule 2 of the Civil Procedure Rules is either a person holding a power of attorney authorising them to accept service, or a person carrying on trade or business for and in the name of a party not resident within the court's jurisdiction. Service on one defendant does not constitute service on co-defendants in the absence of evidence establishing agency.
Setting Aside Ex Parte Judgment — Defective Service
Where defendants have not been properly served with summons in accordance with the Civil Procedure Rules, an ex parte judgment entered against them will be set aside as the court lacked jurisdiction to proceed in their absence.
Separate Legal Personality — Personal Liability of Directors
A director of a company is a separate legal person from the company. Where a contract is between a plaintiff and a company, whether a director is personally liable requires evidence and cannot be presumed from the director's role in receiving payments on the company's account.

Legislation cited (13)

Cases cited (5)

  • Emiru Angose v JAS Projects Ltd (Miscellaneous Application No. 429 of 2005)
  • Electoral Commission v Mbabali Jude (Miscellaneous Application No. 53 of 2006)
  • Lukyamuzi James v Akright Project Ltd & Anor (Civil Suit No. 219 of 2002)
  • Salomon v Salomon [1897] AC 22
  • Valery Alia v Alionzi John (Civil Suit No. 156 of 2010)

Full judgment

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

Kibibu Engineering Co Ltd & Ors v Fanrong Ltd (Miscellaneous Application No. 371 of 2016) [2016] UGCommC 68 (21 September 2016)
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.