Wakilii

Nalubwama v Swift Hardware Ltd (Miscellaneous Application No. 803 of 2016)

High Court · [2017] UGCOMMC 7 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree arising from Civil Suit No. 629 of 2007
Decision
Ex parte judgment, decree and warrant of attachment set aside; encumbrance on applicant's land vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a non-existent entity has no legal capacity to sue or be sued. Where a search of the company registry confirms that the plaintiff company does not exist, any proceedings commenced in its name are a nullity. The ex parte judgment, decree, and warrant of attachment obtained by the purported plaintiff were set aside and the encumbrance on the applicant's land was vacated.

Outcome

Ex parte judgment, decree and warrant of attachment set aside; encumbrance on applicant's land vacated

Facts

In July 2007, Swift Hardware Ltd filed Civil Suit No. 629 of 2007 against Juliet Nalubwama Lule claiming UGX 12,350,000. Service of summons was purportedly effected and an ex parte judgment and decree were entered against the defendant in August and September 2007. A warrant of attachment was issued against the defendant's land at Kyadondo Block 255 Plot 611 in October 2007 and registered as an encumbrance in January 2008. The applicant deposed that she never received summons and that the signature on the return of service was forged. Her counsel discovered that Swift Hardware Ltd was not registered with the Uganda Registration Services Bureau. Attempts to serve the company at its stated address in Mukono revealed that the premises were occupied by other businesses and no entity by that name had ever operated there.

Issues

  1. Whether an ex parte judgment obtained by a non-existent entity can stand.
  2. Whether a non-entity has capacity to sue and be sued.
  3. Whether a warrant of attachment issued in enforcement of a judgment obtained by a non-entity is valid.

Orders

  • The judgment issued on 22 August 2007 is set aside.
  • The decree extracted on 4 September 2007 is set aside.
  • The warrant of attachment issued on 15 October 2007 is set aside.
  • The warrant of attachment and sale of immovable property dated 18 December 2007 is set aside.
  • The encumbrance registered on Kyadondo Block 255 Plot 611 registered under instrument number KLA 363086 on 4 January 2008 at 2:46 PM is vacated.
  • The Commissioner for Land Registration shall deregister the encumbrance forthwith upon being served with this order.
  • No order as to costs.

Rules and key headnotes

Company Law — Legal Personality — Capacity to Sue — Non-Existent Entity
A non-existent entity has no legal capacity to sue or be sued. Once the court is made aware that the plaintiff is non-existent and therefore incapable of maintaining the action, it cannot allow the action to proceed.
Civil Procedure — Nullity — Proceedings by Non-Entity
Where a suit is instituted by a non-existent entity, the proceedings are a nullity. The court cannot cure such a defect by amendment or substitution; the plaint must be rejected as it is no plaint at all.
Civil Procedure — Setting Aside Ex Parte Judgment — Non-Entity Plaintiff
An ex parte judgment obtained by a non-existent entity is liable to be set aside. Where evidence confirms that the plaintiff company is not registered and has no legal existence, all orders flowing from the judgment including decrees and warrants of attachment must be set aside.
Land & Property — Encumbrances — Warrant of Attachment — Setting Aside
Where a warrant of attachment has been registered as an encumbrance on land pursuant to a judgment obtained by a non-existent entity, the court may order the encumbrance to be vacated and direct the Commissioner for Land Registration to deregister it.

Legislation cited (2)

Cases cited (5)

  • Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Miscellaneous Application No. 576 of 2006)
  • Mulangira Ssimbwa v Board of Trustees, Miracle Centre and Pastor Robert Kayanja (Miscellaneous Application No. 655 of 2005)
  • Babubhai Dhanji Pathak v Zainab Mrekwe [1964] EA 24
  • Fort Hall Bakery Supply Co Ltd v Fredrick Muigai Wangoe [1959] EA 474
  • Banque Internationale De Commerce De Petrograd v Goukassow [1923] 2 KB 682

Full judgment

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

Nalubwama v Swift Hardware Ltd (Miscellaneous Application No. 803 of 2016) [2017] UGCommC 7 (9 February 2017)
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.