Wakilii

Musa Sbeity & Anor v Akello Joan (Miscelleanous Application N0. 585 of 2013)

High Court · [2014] UGHCCD 11 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment entered in civil suit arising from HCCS No. 173 of 2013
Decision
Application to set aside default judgment dismissed; default judgment stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to set aside default judgment dismissed. The court held that the applicants failed to show sufficient cause for not filing their application for leave to appear and defend before default judgment was entered. The affidavit in support was struck out as incompetent due to lack of proper commissioning. Costs awarded to the respondent, to be paid personally by applicants' counsel.

Outcome

Application to set aside default judgment dismissed; default judgment stands

Facts

On 24 January 2011, the respondent took her motor vehicle (Nissan Pathfinder, registration UAP 888G) to the second applicant's premises for repair, where it was handed to the first applicant. The respondent filed suit HCCS No. 173 of 2013 claiming USD 72,050 for the vehicle's purchase price, taxes, alternative transport costs, and interest on a gearbox purchase. Summons were served on the applicants on 11 September 2013. Applicants' counsel claimed to have filed an application for leave to appear and defend on 18 September 2013, producing a payment receipt dated 18 September 2013 at 1:25 PM. However, when the respondent applied for default judgment on 7 October 2013 and appeared before court on 8 October 2013, no such application appeared on the court file. The Deputy Registrar verified the file on 22 November 2013 before entering default judgment. The applicants then sought to set aside the default judgment, claiming the application for leave to defend had been filed but not scheduled for hearing because the trial judge was in session.

Issues

  1. Whether the default judgment and decree entered on 22 November 2013 should be set aside.
  2. Whether the applicants demonstrated sufficient cause or good cause for their failure to file an application for leave to appear and defend in time.
  3. Whether the defect in the affidavit (lack of signature in the stamp and absence of commissioning) vitiates the application.

Orders

  • Application dismissed.
  • Costs of the application awarded to the respondent.
  • Costs to be paid personally by counsel for the applicant.

Rules and key headnotes

Civil Procedure — Default Judgment — Setting Aside — Requirements for Good Cause
To set aside a default judgment under Order 36 rule 11 of the Civil Procedure Rules, an applicant must demonstrate good cause, which is a legally sufficient reason relating to the inability or failure to take the necessary procedural step in time.
Civil Procedure — Advocate's Default — When Mistakes Visited on Litigant
While mistakes of counsel should generally not be visited on a litigant, this principle applies only where the advocate's conduct was within the scope of what the advocate was engaged to do and the litigant was not privy to the default or failed to give due instructions. Where counsel's conduct amounts to an attempt to abuse the system, the litigant may bear the consequences.
Civil Procedure — Affidavits — Defective Jurat — Effect
A defect in the jurat or irregularity in the form of an affidavit does not vitiate the affidavit by virtue of Article 126(2)(e) of the Constitution, but the court has power to order that an undated or improperly commissioned affidavit be corrected and may penalise the offending party in costs.
Civil Procedure — Costs — Personal Costs Order Against Counsel
Where counsel's failure to act in time and failure to provide justifiable reasons gives rise to an application, the court may order counsel to pay costs personally rather than their client.

Legislation cited (4)

Cases cited (10)

  • Twiga Chemicals v Viola Bamusedde Bwambale (Civil Appeal No. 9 of 2002)
  • Captain Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Hajji Nurdin Matovu v Ben Kiwanuka (Supreme Court Civil Appeal No. 12 of 1991)
  • Alexander Jo Okello v Kayondo & Co. Advocates (Supreme Court Civil Appeal No. 1 of 1997)
  • Andrew Bamanya v Shamsherali Zaye (Court of Appeal Civil Application No. 70 of 2001)
  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
  • Nicholas Roussos v Gulamhussein Habib Virani & Another (Supreme Court Civil Appeal No. 9 of 1993)
  • Sagu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Kebirungi Justine v M/S Road Trainers & 2 Ors (Miscellaneous Application No. 285 of 2003)

Full judgment

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

Musa Sbeity & Anor v Akello Joan (Miscelleanous Application N0. 585 of 2013) [2014] UGHCCD 11 (24 January 2014)
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.