Wakilii

Musa Sbeity and Cyber Auto Services v Akello Joan (Miscellaneous Application No. 249 of 2018)

High Court · [2018] UGHCCD 243 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal from an ex parte ruling that set aside a consent judgment
Decision
Leave to appeal granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted leave to appeal, holding that grounds meriting serious judicial consideration existed where a consent judgment had been set aside ex parte without service of the notice of motion on the applicants or their advocates. The court found that a consent judgment, being contractual in nature, may only be set aside on grounds applicable to contracts and that setting it aside without hearing the parties raised serious questions of procedural fairness. The court also found professional misconduct where counsel deposed an affidavit in support of the application and then appeared to argue it.

Outcome

Leave to appeal granted

Facts

The respondent filed HCCS No. 172 of 2013 against the applicants seeking US$72,050. An ex parte decree was entered on 22 November 2013. On 21 October 2014, the parties entered into a consent settlement resolving all disputes between them. The applicants paid US$20,000 under the consent settlement, which they contend was full and final settlement. The respondent thereafter filed Miscellaneous Application No. 769 of 2014 to set aside the consent judgment. On 17 April 2015, that application was heard and granted ex parte, with the consent settlement set aside. The applicants claim they were never served with the notice of motion in Miscellaneous Application No. 769 of 2014 and did not have the opportunity to defend it. They subsequently applied for extension of time to appeal, which was granted, and then filed this application for leave to appeal against the ruling setting aside the consent judgment.

Issues

  1. Whether there are sufficient grounds to grant leave to appeal against the ruling that set aside a consent judgment entered ex parte.

Orders

  • Application for leave to appeal allowed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Leave to Appeal — Test for Grant of Leave — Grounds Meriting Serious Judicial Consideration
Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration, and the prospect for success must be realistic rather than fanciful.
Contract Law — Consent Judgments — Nature and Effect — Grounds for Setting Aside
A consent judgment is like a contract which derives its legal effect from the agreement of the parties and may only be set aside on the same grounds as those on which a contract would be set aside.
Civil Procedure — Ex Parte Orders — Setting Aside Consent Judgment — Requirement of Service and Hearing
Where a consent judgment is set aside ex parte without service of the notice of motion on the parties and without their involvement, this constitutes a serious ground that needs judicial consideration on appeal, as the contractual settlement was undone without hearing those who agreed to it.
Administrative Law — Professional Conduct of Advocates — Prohibition Against Acting as Witness and Counsel
An advocate may not appear before any court in any matter in which they have reason to believe they will be required to give evidence by affidavit except on formal or non-contentious matters. Where an advocate deposes an affidavit in support of a contentious application and then appears to argue the same application, this constitutes professional misconduct.

Legislation cited (2)

Cases cited (4)

  • Hirani v Kassam (1952) 19 EACA 131
  • Swain v Hillman [2001] 1 All ER 91
  • Degeya Trading Stores (U) Ltd v Uganda Revenue Authority (Court of Appeal Civil Application No. 16 of 1996)
  • Sango Bay Estate vs Dresdner Bank & Attorney General

Full judgment

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

Musa Sbeity and Cyber Auto Services v Akello Joan (Miscellaneous Application No. 249 of 2018) [2018] UGHCCD 243 (1 June 2018)
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.