Wakilii

M A Silvery Dragon Group Technology and Trading Group v Mukasa and 3 Others (Miscellaneous Civil Application 1018 of 2020)

High Court · [2021] UGCOMMC 149 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of order dismissing suit, arising from underlying summary suit for recovery of debt
Decision
Review application allowed; suit reinstated with default judgment against three respondents; 3rd respondent granted leave to defend; matter set down for trial

Observed later treatment

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Holding

The court reviewed and set aside its own order dismissing the suit, finding that the power of attorney was validly notarised and registered in Uganda. Default judgment was reinstated against the 1st, 2nd and 4th respondents. The 3rd respondent was granted unconditional leave to appear and defend the suit, as his intended defence that he was not personally liable for a corporate transaction raised triable issues of fact and law, including the question of lifting the corporate veil.

Outcome

Review application allowed; suit reinstated with default judgment against three respondents; 3rd respondent granted leave to defend; matter set down for trial

Facts

The applicant, a Chinese trading company, sued four respondents for recovery of US$191,259.81 being the price of steel cable shipped in November 2017 and delivered to Kampala in December 2017. The applicant proceeded under summary procedure through its agent Sserwanga Tonny acting under power of attorney. The respondents were served by substituted service. They failed to apply for leave to defend within time and default judgment was entered. The 3rd respondent was arrested in execution and thereafter applied to set aside the default judgment. The court allowed that application and dismissed the suit on ground that the power of attorney had not been duly notarised. The applicant then applied for review of that order.

Issues

  1. Whether the court erred in dismissing the suit on ground that the power of attorney had not been duly notarised.
  2. Whether the 3rd respondent should be granted leave to appear and defend the suit out of time.
  3. Whether the 3rd respondent has a plausible defence to the summary suit.

Orders

  • Application for review allowed.
  • Suit reinstated.
  • Default judgment reinstated against the 1st, 2nd and 4th respondents.
  • 3rd respondent granted unconditional leave to appear and defend the suit.
  • 3rd respondent to file his defence within fifteen days.
  • Costs of both applications to be in the cause.
  • Hearing of the suit fixed for 29th March 2021 at 11:00 am.

Rules and key headnotes

Civil Procedure — Review — Error Apparent on Face of Record
A review may be granted where there is an error apparent on the face of the record, being an error that is self-evident and does not require elaborate argument to establish. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record.
Evidence — Public Documents — Notarised Power of Attorney — Presumption of Genuineness
A notarised power of attorney registered in Uganda as a public document is presumed genuine under section 78(a) of the Evidence Act and is capable of proof by way of a certified copy. The court must presume every document purporting to be a certified copy which is by law declared admissible as evidence and which purports to be duly certified by any officer in Uganda to be genuine if the document is substantially in the required form.
Civil Procedure — Summary Procedure — Leave to Appear and Defend — Application Out of Time
An application for leave to appear and defend under summary procedure may be granted although filed out of time. Where the application is made belatedly, the court should construe the application liberally in accordance with article 126(2)(e) of the Constitution, focusing on substance rather than form, and treat it as an application for belated leave to appear and defend.
Civil Procedure — Summary Procedure — Plausible Defence — Test
At the hearing of an application for unconditional leave to appear and defend, the court is not required to determine the merits of the proposed defence. Leave should be granted where the defendant presents a plausible defence that raises issues capable of being tried. A plausible defence is one where if the facts alleged are established there would be a fair dispute to be tried, or issues of such a nature as would entitle the defendant to interrogate or cross-examine the plaintiff's witnesses. Leave is declined where the defence is untenable or frivolous.
Company Law — Lifting the Corporate Veil — Personal Liability of Directors — Proof Required
Where a plaintiff alleges fraud to justify lifting the corporate veil and attributing personal liability to a director for a company debt, such fraud must be proved before final judgment. A director's defence that he is not personally liable for the underlying corporate transaction constitutes a plausible defence raising triable issues of mixed law and fact, entitling him to unconditional leave to appear and defend.
Commercial Law — Arbitration Clause — Effect on Court Jurisdiction
The inclusion of an arbitration clause in an agreement does not oust the jurisdiction of the courts. A defendant who denies liability on a contract cannot at the same time seek to rely on an arbitration clause in that contract.

Legislation cited (12)

Cases cited (6)

  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • Zola and another v Ralli Brothers Ltd and another [1969] EA 691
  • In re Vandervell's Trust (No.2) [1974] 3 WLR 256
  • Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] 1 All ER 118
  • Twentsche Overseas Trading Co Ltd v Bombay Garage Ltd [1958] EA 741
  • Bemba Ruth and another v Departed Asians Property Custodian Board [1988-90] HCB 139

Full judgment

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M A Silvery Dragon Group Technology and Trading Group v Mukasa and 3 Others (Miscellaneous Civil Application 1018 of 2020) [2021] UGCommC 149 (1 March 2021)
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.