Wakilii

Okao Tamali v The Micro Finance Support Centre Ltd (Misc. Application No. 006 of 2014)

High Court · [2014] UGHC 115 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte judgment and decree entered in Civil Suit No. 075 of 2011 and to stay execution
Decision
Application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside an exparte judgment and stay execution. The court found that while one copy of the respondent's affidavit in reply was not properly signed, the affidavit on court record supporting the summary suit was properly deposed. Service of summons was effective under Order 5 Rule 13 of the Civil Procedure Rules when delivered to the applicant's maid. The applicant's part payment of the judgment debt and failure to pursue earlier applications to defend demonstrated approbation, waiving her right to challenge the decree. The application was found to be in bad faith and an abuse of court process.

Outcome

Application dismissed with costs to the respondents

Facts

The applicant was a member of Oribcing Women Cooperative Savings and Credit Society Ltd, which obtained a loan from the respondent. The loan was guaranteed by Beatrice Aceng and Grace Kibwanga. When the cooperative defaulted, the respondent instituted a summary suit against the applicant and four others. An exparte judgment and decree was entered against them jointly and severally on 16 October 2012. Subsequently, the applicant made two payments toward the judgment debt: UGX 5,000,000 on 29 November 2013 and UGX 10,000,000 on 13 February 2014. The applicant then filed this application on 2 February 2014 seeking to set aside the exparte judgment and stay execution, claiming she was not properly served with summons and had a defence on merit, namely that the loan was guaranteed by others and she was not personally liable.

Issues

  1. Whether the application is based on an irregular and incompetent affidavit.
  2. Whether summons to appear and defend were effectively served upon the applicant.
  3. Whether the application for setting aside the judgment and decree and stay of execution has merits.
  4. What remedies are available to the parties.

Orders

  • An order for setting aside the decree and stay of execution is dismissed.
  • The costs of the application are awarded to the respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Defective affidavit not deposed before Commissioner for Oaths — Effect on court record
Where a copy of an affidavit served on a party is not signed by the deponent, but the affidavit on court record supporting the suit was properly deposed before a Commissioner for Oaths in accordance with section 5 of the Oaths Act, the defect in the copy served does not affect the validity of the affidavit forming part of the court record and the court's reliance on it.
Civil Procedure — Service of Summons — Service upon adult member of household
Under Order 5 Rule 13 of the Civil Procedure Rules, service of summons upon an adult member of the defendant's household, including a maid, after contacting the defendant and receiving instructions to leave pleadings with that person, constitutes effective service.
Civil Procedure — Setting Aside Exparte Judgment — Requirements under Order 9 Rule 27
To set aside an exparte judgment under Order 9 Rule 27, the defendant must satisfy the court either that summons was not duly served or that they were prevented by sufficient cause from appearing when the suit was called for hearing, and must demonstrate a triable issue or prima facie defence.
Civil Procedure — Approbation and Reprobation — Effect of voluntary part payment of judgment debt
Where a judgment debtor voluntarily makes part payments toward a judgment debt over a period of time without duress, and only thereafter applies to set aside the decree, the doctrine of approbation and reprobation bars the application as the debtor is deemed to have waived their right to challenge the decree by accepting and acting upon it.

Legislation cited (12)

Cases cited (13)

  • Mohamnied Majyambere v Bhakresa Khalil (Misc. Application No. 727 of 2010)
  • Jayantailal Amratlal Bhimji & Another v Prime Finance Company Ltd (Misc. Application No. 467 of 2007)
  • Kaigana v. Dabo Boubou (1986)HCB 59
  • Kakooza John Baptist v Electoral Commission & Another (Election Petition Appeal No. 11 of 2007)
  • Wanendeya v. Norconsult A.S (1987) HCB 88
  • Patel v. E.A Cargo Handling services Ltd (1974) E.A 75
  • Ddegeya trading stores (U) Ltd v URA (1997)3 KALR 108
  • Habyene v AG (1996) 3 KALR 23
  • Makula Investment Ltd v. Eminence Cardinal Nsubuga Wamafa & Another (1982) HCB 11
  • Caltex Oil (U) Ltd v Kyobe [1989-1990] HCB 141
  • Sennyange v NAKS LTD [1980] HCB 30
  • Eriabu Kabigiza v, Lawrence Sserwrwanja (1975) HCB 199
  • Imerida Nandaula v Ugadev Bank Ltd (Civil Appeal No. 47 of 1992)

Full judgment

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Okao Tamali v The Micro Finance Support Centre Ltd (Misc. Application No. 006 of 2014) [2014] UGHC 115 (14 October 2014)
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.