Wakilii

Nzabakirana Edouardo v Henrietta and Partners Limited (Miscellaneous Application No. 026 of 2018)

High Court · [2018] UGHCCD 287 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment arising from HCCS No. 086 of 2015
Decision
Default judgment set aside; matter to proceed to hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted the application to set aside the default judgment. The professional negligence of the applicant's former advocates, who failed to serve the defence and counterclaim and did not inform the applicant of the default judgment, constituted sufficient cause. The inadvertence of counsel should not be visited upon the litigant, thereby denying him the right to defend himself on the merits.

Outcome

Default judgment set aside; matter to proceed to hearing on the merits

Facts

The applicant was sued by the respondent in HCCS No. 086 of 2015 for recovery of lost items valued at UGX 18,500,000 and related claims. The applicant instructed his then-advocates, Mayende Associated Advocates, to file a written statement of defence and counterclaim. Unknown to the applicant, these documents were filed but never served on the respondent. Upon the respondent's application, the court struck out the defence and counterclaim and entered default judgment against the applicant. The applicant was not informed by his former lawyers of these developments. Approximately two years later, having discovered the default judgment, the applicant instructed new advocates who immediately filed this application to set aside the default judgment and for leave to file defence and counterclaim out of time.

Issues

  1. Whether the applicant has shown sufficient reason to set aside the default judgment entered against him.
  2. Whether the professional negligence of the applicant's former advocates constitutes sufficient cause to grant the application.
  3. Whether the applicant should be granted leave to file and serve his written statement of defence and counterclaim out of time.

Orders

  • Application allowed.
  • Default judgment set aside.
  • Applicant granted leave to file and serve his written statement of defence and counterclaim.
  • Applicant's written statement of defence accepted on record.
  • Respondent to respond to the written statement of defence within 15 days from the date of this ruling.
  • Parties directed to generate a joint scheduling memorandum after closure of pleadings.
  • Costs of the application awarded to the respondent in any event.

Rules and key headnotes

Setting Aside Default Judgment — Professional Negligence of Counsel as Sufficient Cause
The professional negligence of a litigant's former advocates, including failure to serve pleadings and failure to inform the client of adverse rulings, constitutes sufficient cause to set aside a default judgment under Order 9 Rule 12 of the Civil Procedure Rules.
Setting Aside Default Judgment — Inadvertence of Counsel Not to be Visited on Litigant
A litigant who has instructed counsel in time should not be denied the right to present and defend their case on the merits due to the omission, mistake, or inadvertence of counsel, as this would result in denial of justice.
Administration of Justice — Substance Over Technicality
The administration of justice requires that the substance of all disputes should be investigated and decided on their merits, and that errors and lapses should not necessarily debar a litigant from pursuit of their rights.

Legislation cited (5)

Cases cited (12)

  • Florence Nabatanzi v Naome Binsobodde (SC Civil Application No. 6 of 1987)
  • Sipiriya Kyaturesire v Justine Bakachulike Bagambe (Court of Appeal No. 20 of 1995)
  • Mugo vs. Wanjiru
  • Essaji vs. Solanki
  • Attorney General vs. Oriental Construction Limited
  • Kamya Grace Wanzala vs. Migereko and Anor ERA No. 39/2012
  • Bogere Susan Nsensebuse vs. Kakembo Mansur EP Application No. 75/2016
  • David Kato Luguza and Another v Evelyn Nakafeero and Another (Civil Appeal No. 37 of 2011)
  • Kaderbhai and Another v Shamsherali and Others (SC Civil Application No. 20 of 2008)
  • Attorney General v AKPM Lutaaya (Supreme Court Civil Appeal No. 12 of 2007)
  • Godfrey Mageze and Brian Mbazira v Sudhir Ruparelia (Supreme Court Civil Application No. 10 of 2002)
  • Joel Kato and Another v Nuulu Nalwoga (Miscellaneous Application No. 04 of 2012)

Full judgment

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

Nzabakirana Edouardo v Henrietta and Partners Limited (Miscellaneous Application No. 026 of 2018) [2018] UGHCCD 287 (30 November 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.