Wakilii

Lebel (East Africa) Ltd v E.F. Lutwama (Civil Appeal No. 4 of 1985)

Court of Appeal · [1986] UGCA 2 · 1986 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order refusing to set aside an ex-parte judgment
Decision
Appeal allowed; ex-parte judgment set aside and suit re-instated for hearing in the High Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal allowed the appeal, holding that the trial judge failed to exercise his discretion judicially in refusing to set aside an ex-parte judgment under O.9 r.24 of the Civil Procedure Rules. The undisputed evidence showed counsel had been arrested and detained by security men on the hearing day, and the appellant received notice of the hearing date too late to attend — both amounting to sufficient cause. The court further held that the existence of a triable defence (whether the property was in disrepair) and a possible defence against forfeiture, even if irregularly raised, ought to have been considered. Denying a party a hearing should be a court's last resort.

Outcome

Appeal allowed; ex-parte judgment set aside and suit re-instated for hearing in the High Court

Facts

The respondent leased his land to the appellant company for 49 years ending in 2006, the appellant undertaking to construct a house on the land. The respondent later sued the appellant in the High Court for recovery of the land and house, alleging breach of the covenant to keep the property in good and tenantable repair. On the hearing day the appellant's counsel failed to appear and the respondent obtained an ex-parte judgment before Kantinti, J. The appellant applied to set aside the judgment, supported by affidavits. Counsel deposed that on the hearing day he had been arrested by army men at around 6 a.m. and detained until the afternoon, making attendance impossible. The appellant's manager deposed that the company received the letter notifying it of the hearing date only on the day of the hearing. The appellant also claimed it had repaired the war-damaged house and wished to defend against possible forfeiture. The High Court (Ouma, J.) dismissed the application, leading to this appeal.

Issues

  1. Whether the appellant's counsel was prevented by sufficient cause from attending the hearing of the suit.
  2. Whether the appellant was prevented by sufficient cause from appearing at the hearing.
  3. Whether the trial judge erred in refusing to set aside the ex-parte judgment on the basis that the appellant sought to raise a new defence not pleaded in the written statement of defence.
  4. Whether the trial judge exercised his discretion judicially in declining to set aside the ex-parte judgment.

Orders

  • Appeal allowed.
  • Order of Ouma, J. set aside.
  • Ex-parte judgment of Kantinti, J. set aside.
  • Suit re-instated for hearing on a date to be fixed by the Chief Registrar of the High Court.
  • Respondent to pay the appellant's costs of the appeal and in the lower court.

Rules and key headnotes

Setting Aside Ex-Parte Judgment — Sufficient Cause for Non-Appearance
A defendant is entitled to have an ex-parte judgment set aside under O.9 r.24 of the Civil Procedure Rules where he is prevented by sufficient cause from appearing; the arrest and detention of counsel by security personnel on the hearing day, and late receipt of the hearing notice, constitute sufficient cause.
Setting Aside Ex-Parte Judgment — Test of Genuine Desire to Attend
One test in determining an application to set aside an ex-parte judgment is whether the applicant and his counsel honestly wanted to attend the hearing and did their best to do so.
Setting Aside Ex-Parte Judgment — Consideration of Triable Defence
In deciding an application to set aside an ex-parte judgment the court must consider the nature of the suit and whether the applicant has a prima facie or triable defence; a defence brought to the court's notice, even if raised irregularly, should be considered.
Appellate Review — Exercise of Discretion
An appellate court will not interfere with a lower court's exercise of discretion to set aside an ex-parte judgment unless the decision was clearly wrong, based on wrong principles, or occasioned a miscarriage of justice; to deny a party a hearing should be the last resort of a court.

Legislation cited (2)

Cases cited (3)

  • Mbogo v. Shah (1968) E.A. 93
  • Lake Victoria Bottling Co. Ltd. V. Anthony Constance H.C.C.S. No.6 of 1962
  • Jamnadas v. Sodha Vs. Gordhandas Hemraj (1952) 7 U.I.R. 7

Full judgment

↓ Download PDF

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

Lebel (East Africa) Ltd v E.F. Lutwama (Civil Appeal No. 4 of 1985) [1986] UGCA 2 (30 May 1986)
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.