Wakilii

Ongom v Nyero Owota (MISCELLANEOUS APPLICATION NO. 1081 1999)

High Court · [2000] UGHC 61 · 2000 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal and stay of execution arising from ex parte judgment entered in default of filing written statement of defence
Decision
Both applications dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed both applications. Where a defendant's counsel fails to file a written statement of defence resulting in ex parte judgment, and the defendant has an alternative remedy against his negligent lawyer for indemnity, the court will not exercise its discretion to grant leave to appeal or stay execution. The plaintiff should not suffer inconvenience caused by the defendant's lawyer. The applicant failed to show grounds alleging wrong exercise of judicial discretion or provide a draft notice of appeal demonstrating the strength of his case.

Outcome

Both applications dismissed with costs to the respondent

Facts

The applicant/defendant was sued in HCCS No. 980/98. His counsel, M/s Ladwar, Oneka & Co. Advocates, entered appearance but failed to file a written statement of defence within the statutory period. Ex parte judgment was entered against him on 29 June 1999. The applicant then applied to set aside the ex parte judgment, which was dismissed on 18 August 1999. He subsequently filed two applications: one seeking leave to appeal against the dismissal of his setting aside application, and another seeking stay of execution pending appeal. The applicant claimed his former counsel's negligence caused the default judgment, and that he had a good defence on the merits regarding a financial dispute with the respondent involving approximately Uganda Shillings equivalent of £13,000. The applicant contended the money was financial assistance, not a loan requiring repayment with interest. He stated he could not sue his former lawyer because they were neighbours.

Issues

  1. Whether the applicant should be granted leave to appeal against the decision dismissing his application to set aside an ex parte judgment.
  2. Whether execution of the decree should be stayed pending the applicant's intended appeal.
  3. Whether the court should exercise its discretion in favour of the applicant despite the failure of his counsel to file a written statement of defence.

Orders

  • Application for leave to appeal dismissed.
  • Application for stay of execution dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Applications for Leave to Appeal — Exercise of Judicial Discretion — Grounds Required
A party seeking leave to appeal from an exercise of judicial discretion must show that the judge misdirected himself, acted on matters he should not have acted on, failed to consider matters he should have considered, or arrived at a wrong conclusion. A draft notice of appeal is necessary to demonstrate the strength of the intended appeal.
Civil Procedure — Ex Parte Judgment — Advocate's Negligence — Alternative Remedies
Where a defendant's advocate fails to file a written statement of defence resulting in ex parte judgment, and the defendant has an alternative remedy by way of a suit in negligence against the advocate for indemnity, the court will not exercise its discretion under Order 9 r.10 of the Civil Procedure Rules to set aside the judgment or grant leave to appeal where doing so would cause the plaintiff to suffer inconvenience not of her making.
Civil Procedure — Stay of Execution — Requirements for Grant
An application for stay of execution pending appeal will be refused where the applicant fails to demonstrate how the intended appeal has a chance of success and where the applicant has an alternative remedy against his negligent lawyer. The fact that execution will cause harm to a judgment debtor is not, by itself, a plausible ground for stay.
Civil Procedure — Appellate Interference with Discretion — Standard of Review
An appellate court will not interfere with the exercise of discretion by a lower court unless satisfied that the discretion was clearly wrong because the judge misdirected himself, acted on matters on which he should not have acted, failed to take into consideration matters which should have been considered, or manifestly arrived at a wrong decision resulting in injustice.

Legislation cited (1)

Cases cited (3)

  • Jamnadas v Sodha v Gordhandas Hempaj (Civil Appeal No. 57 of 1952)
  • Mbogo & Anor v Shah [1968] EA 93
  • Evand v Bartlam [1937] 2 All ER 646

Full judgment

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

Ongom v Nyero Owota (MISCELLANEOUS APPLICATION NO. 1081_1999) [2000] UGHC 61 (15 March 2000)
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.