Wakilii

Natukunda v Muhaise Bikalemesa (Miscellaneous Application 256 of 2021)

High Court · [2024] UGHCLD 278 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree arising from Civil Suit No. 178 of 2017
Decision
Application dismissed but applicant's liability limited to one-third of general damages and costs awarded in the underlying suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court found sufficient cause to set aside exparte judgment based on advocate's negligence but dismissed the application as overtaken by events. The underlying fraud findings against the second defendant could not be disturbed in this procedural application. Court held applicant liable for only one-third of general damages and costs, given she was a victim of fraud by the second defendant despite her own negligence in due diligence.

Outcome

Application dismissed but applicant's liability limited to one-third of general damages and costs awarded in the underlying suit

Facts

The Respondent obtained exparte judgment in Civil Suit No. 178 of 2017 against the Applicant and two others for fraudulent transfer of land title. The Applicant's certificate of title for land at Kyadondo Block 195 Plot 2348, Kyanja was cancelled and general damages of UGX 100,000,000 were awarded jointly and severally against the defendants. The Applicant was represented by Kanduho & Co. Advocates who failed to appear at hearing despite service of hearing notices. The Applicant became aware of the judgment in February 2021 when served with execution proceedings. Evidence showed the fraud was committed by the second defendant Grace Serwadda who obtained a special certificate based on forged documents and transferred title to the Applicant. The trial court found the Applicant negligent in failing to conduct proper due diligence before purchase but did not impute fraud on her part.

Issues

  1. Whether the Applicant has disclosed grounds for setting aside the exparte decree?
  2. What remedies are available?

Orders

  • Application dismissed.
  • The decree to be executed against the Applicant should be for only a third of the general damages and costs.
  • The Applicant pays costs for this Application.

Rules and key headnotes

Setting Aside Exparte Judgment — Sufficient Cause — Advocate's Negligence
Negligence of counsel amounts to sufficient cause for setting aside an exparte judgment under Order 9 Rule 27 of the Civil Procedure Rules, provided there is no bad faith on the litigant's part and no inordinate delay in bringing the application. The negligence of counsel ought not be visited on an innocent litigant unless the litigant is privy to the default or it results from the litigant's failure to give due instructions.
Setting Aside Exparte Judgment — Application Overtaken by Events
Where an application to set aside an exparte judgment has merit on the ground of advocate's negligence, but the substantive findings (particularly fraud by co-defendants) cannot be disturbed in a procedural application and would yield the same outcome on retrial, the court may dismiss the application as overtaken by events to avoid waste of time and injustice to the successful party.
Fraudulent Transfer — Purchaser's Due Diligence — Apportionment of Liability
Where a purchaser of land obtains title through fraud committed by an intermediary seller, but is herself guilty of negligence in failing to conduct proper due diligence (particularly where the seller held a special certificate of title), the purchaser may be held liable for a proportionate share of damages rather than the full joint and several liability, recognising her status as both negligent and a victim of fraud.

Legislation cited (5)

Cases cited (2)

  • Captain Phillip Ongom v Catherine Nuevo Owoto (Supreme Court Civil Appeal No. 14 of 2001)
  • Zam Nalumansi v Sulaiman Lule (Supreme Court Civil Appeal No. 2 of 1992)

Full judgment

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

Natukunda_v_Muhaise_Bikalemesa_(Miscellaneous_Application_256_of_2021)_[2024]_UGHCLD_278_(9_December_2024)
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.