Wakilii

Kisawuzi v Kayondo (Miscellaneous Application No. 045 of 2011)

High Court · [2011] UGCOMMC 2010 · 2011 Application Partly Allowed — Conditional Leave Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside summary judgment and decree entered in default of application for leave to defend, with application for stay of execution and leave to file a defence
Decision
Defendant granted conditional leave to defend; must deposit claimed amount within one month to proceed with defence, failing which judgment will automatically issue for plaintiff

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that service of summons on the defendant was effective. The judgment and decree were set aside on the principle that a court may revoke its expression of coercive power obtained by failure to follow procedural rules. The defendant raised triable issues but the court found these insufficient to warrant unconditional leave to defend, particularly given the existence of a cheque and supporting written agreement. Leave to defend was granted on condition that the defendant deposit the claimed amount in court within one month, failing which judgment would automatically issue for the plaintiff.

Outcome

Defendant granted conditional leave to defend; must deposit claimed amount within one month to proceed with defence, failing which judgment will automatically issue for plaintiff

Facts

The plaintiff alleged he entered into an agreement with the defendant to purchase a Range Rover Motor Sport 2007 model for USD 40,000, advancing USD 30,000 as part payment. The defendant allegedly failed to deliver the motor vehicle. As security, the defendant issued the plaintiff a cheque for USD 30,000 drawn on United Bank of Africa. The defendant allegedly prevailed upon the plaintiff not to bank the cheque but failed to refund the money or deliver the vehicle. The plaintiff filed a summary suit to recover the amount based on the cheque. Judgment was entered in default when the defendant did not apply for leave to defend. The defendant then applied to set aside the judgment, claiming he was never served with summons and that the cheque was a forgery. A written agreement dated 8 July 2008 between the parties confirmed the defendant had received USD 30,000 as deposit and had issued the cheque as security for failure to deliver the vehicle by 30 July 2008.

Issues

  1. Whether the service of summons on the defendant was effective.
  2. Whether there was good cause to set aside the summary judgment and decree entered against the defendant.
  3. Whether the defendant raised bona fide triable issues sufficient to warrant leave to defend the suit.
  4. Whether the cheque relied upon by the plaintiff was a forgery.
  5. Whether the defendant delivered the motor vehicle to the plaintiff as alleged.
  6. If leave to defend is granted, whether it should be conditional or unconditional.

Orders

  • Judgment and decree entered against the defendant set aside.
  • Leave granted to the defendant to appear and defend the suit, subject to conditions.
  • Defendant to deposit the amount claimed by the plaintiff in court by way of banker's draft or banker's guarantee from a reputable bank acceptable to the Registrar, valid for at least one year, within one month from the date of the order.
  • Upon depositing the amount, the defendant may file a written statement of defence.
  • In the event the defendant fails to deposit the amount claimed, judgment shall automatically issue in favour of the plaintiff for the sum claimed in the plaint, without interest, together with costs of the suit.

Rules and key headnotes

Summary Suits — Setting Aside Default Judgment — Service of Summons
Where a process server provides sufficient particularity in an affidavit of service stating that he contacted the defendant by telephone at a number not denied to be the defendant's, met the defendant at a specified location at a specified time, tendered summons and plaint which the defendant accepted, service is effective even if the defendant refused to sign acknowledgment of receipt on grounds that he would settle the matter out of court.
Summary Suits — Setting Aside Ex Parte Decree — Good Cause
Unless and until the court has pronounced a judgment upon the merits or by consent, it has power to revoke the expression of its coercive power where that has only been obtained by failure to follow any of the rules of procedure. Once an applicant establishes a defence on the merits, it is just and reasonable to set aside an ex parte decree in light of all facts and circumstances.
Summary Suits — Leave to Defend — Bona Fide Triable Issues
A defendant seeking leave to defend a summary suit must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. A defence on the merits does not mean a defence that must succeed but simply means triable issues which raise a prima facie defence. The defence must be stated with sufficient particularity to appear genuine; general or vague statements denying liability will not suffice.
Negotiable Instruments — Bills of Exchange and Cheques — Summary Judgment
Where a plaintiff sues under a cheque, promissory note, or bill of exchange, leave to defend will not be given save in exceptional circumstances. A bill of exchange is normally to be treated as cash and the holder is entitled in the ordinary way to judgment. A buyer's cross-claim for damages does not constitute a defence to a claim on the instrument and must be raised in a separate action.
Bills of Exchange — Inchoate Instruments — Authority to Complete
Under the Bills of Exchange Act section 19(1), where a simple signature on a blank stamped paper is delivered by the signer in order that it may be converted into a bill, it operates as prima facie authority to fill it up as a complete bill for any amount the stamp will cover. Where the parties have entered into a written agreement confirming that a cheque was issued as security and specifying the payee and amount, the subsequent filling in of those particulars on the cheque by the payee or by his authority is valid and does not constitute a defence that the instrument is invalid.
Expert Evidence — Handwriting Analysis — Weight and Reliability
Where a handwriting expert examines questioned signatures and concludes in two separate reports that the signatures fall within the writer's variations and were written by one and the same person as the specimen signatures, such expert opinion is reliable evidence that the defendant signed the questioned document. A misstatement of the date of a source document in the expert's report is understandable where the correct date and a referenced earlier date appear in related documents, and does not render the expert's opinion biased or unreliable.
Summary Suits — Conditional Leave to Defend — Borderline Cases
In borderline cases where a defendant has raised a definite triable issue but there are strong grounds to doubt the genuineness of the defence, the court may grant leave to defend conditionally, requiring the defendant to deposit the amount claimed in court by banker's draft or banker's guarantee before filing a defence. Where the defendant fails to deposit the amount within the time specified, judgment shall automatically issue in favour of the plaintiff.

Legislation cited (7)

Cases cited (11)

  • Maluku Interglobal Trade Agency Ltd v Bank of Uganda [1985] HCB 65
  • Sulaiman Nsamba v Fred Balinda (HCCS No. 102 of 1998)
  • Patel v Cargo Handling Services Ltd [1994] EA 75
  • Evans v Bartlam [1937] AC 473
  • Abubakar Kato Kasule v Tomson Muhwezi [1992-1993] HCB 212
  • Corporate Insurance Co Ltd v Nyali Beach Hotel Ltd [1995-1998] EA 7
  • Gupta v Continental Builders [1978] KLR 83
  • Kotecha v Muhammed [2002] 1 EA 112
  • Saw v Hakim (1915) 5 TLR 72
  • Ray v Barker (1849) 4 Ex D 279
  • Churanjilal & Co v A H Adam (1950) 17 EACA 92

Full judgment

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

Kisawuzi v Kayondo (Miscellaneous Application No. 045 of 2011) [2011] UGCommC 2010 (11 May 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.