Wakilii

National Enterprises Corporation vs Mukisa Foods Ltd (Civil Appeal No 42 of 1997)

Court of Appeal · [1998] UGCA 7 · 1998 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal against the High Court's dismissal of an application to set aside an ex-parte judgment entered in default of pleadings.
Decision
Ex-parte judgment set aside on terms; appellant granted leave to plead to the amended plaint within 14 days.

Observed later treatment

Treatment recorded in citing cases followed in 13 · applied in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

Good law Followed in 13 cases and applied in 1 case, with no adverse treatment recorded. Citations rising — 50 citing cases on record, 20 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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 held that although the ex-parte judgment was regularly entered in default of pleadings, the court retained a discretion to set it aside. That discretion should be exercised where the defendant shows an arguable defence on the merits and offers an explanation for non-appearance. The appellant denied removing the machinery (raising a triable issue), explained that its Company Secretary and advocates failed to act, and had not been served with the amended plaint that introduced a new claim. Denying a hearing should be a last resort, and any prejudice to the respondent could be met by costs. The appeal was allowed and the ex-parte judgment set aside on terms.

Outcome

Ex-parte judgment set aside on terms; appellant granted leave to plead to the amended plaint within 14 days.

Facts

The respondent sued the appellant in the High Court claiming certain relief. The appellant was served with summons and the plaint but neither entered an appearance nor filed a defence. The matter proceeded ex-parte under Order 9 rule 17(1)(a). After hearing evidence, the respondent obtained leave to amend the plaint to allege that the appellant had unlawfully removed machinery from the suit premises, seeking its return or payment of its value. The court ordered the amended plaint served on the defendant, but it was not served. Judgment was entered ordering the appellant to return the machinery or pay Shs. 350 million, plus Shs. 10 million general damages and costs. On learning of the judgment when its property was advertised for sale, the appellant applied to set the ex-parte judgment aside, explaining that its Company Secretary and instructed advocates had failed to act and denying that it had removed any machinery. The trial judge refused the application, prompting this appeal.

Issues

  1. Whether the trial judge exercised his discretion judicially when he refused to set aside the ex-parte judgment.
  2. Whether the failure to serve the amended plaint on the defendant affected the regularity of the ex-parte judgment.
  3. Whether the appellant showed sufficient cause under Order 9 rule 24 to warrant setting aside the ex-parte judgment.

Orders

  • Appeal allowed.
  • Ex-parte judgment set aside on terms that the appellant pays the costs thrown away.
  • Appellant granted leave to plead to the amended plaint within 14 days from the date of judgment.
  • Costs of the appeal and the court below awarded to the appellant.

Rules and key headnotes

Ex-parte Judgment — Setting Aside — Regular Judgment — Court's Discretion
Where a judgment, though by default, is regularly entered, the court has a discretion whether to set it aside, and is not bound to do so ex debito justitiae; the discretion is exercised according to the particular circumstances of the case.
Setting Aside Ex-parte Judgment — Merits of Defence — Primary Consideration
The primary consideration in setting aside a regular default judgment is whether the defendant has shown merit in its intended defence; where an arguable issue exists, the court should be reluctant to allow judgment to stand on which there has been no proper adjudication.
Setting Aside Ex-parte Judgment — Explanation for Non-appearance — Costs as Remedy
A defendant's fault in failing to appear after service can generally be sufficiently addressed by terms as to costs rather than by denying a hearing; where the defendant's explanation is merely denied and rests on a conflict of affidavits, it should not be disbelieved at that stage.
Amendment of Pleadings — Service of Amended Plaint — Introduction of New Claim
Where an amended plaint introduces a new claim not in the original plaint, failure to serve the amended plaint on the defendant is an error, as the defendant may have had good reasons not to defend the original claim but might have defended the new one.
Right to be Heard — Denial of Hearing as Last Resort
To deny a party a hearing should be the last resort of a court; the court has the power and duty to remedy injustice where allowing a default judgment to stand would result in injustice.

Legislation cited (9)

Cases cited (5)

  • Anlaby v Praetorius (1888) 20 QBD 764
  • Jenkins v Bushby {1189}1 1 Ch. 484
  • Evans v Bartlam [1937] AC 473
  • Jammadas Sodlia v Gordhandas Hemraj (1952) U S R 7 at 11
  • Redditch Benefit Building Society v Roberts [1940] 1 All ER 342

Cases citing this judgment (30)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

National Enterprises Corporation vs Mukisa Foods Ltd (Civil Appeal No 42 of 1997) [1998] UGCA 7 (2 July 1998)
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.