Wakilii

Razak v Prime Finance Company Limited (Miscellaneous Application 1786 of 2022)

High Court · [2023] UGCOMMC 81 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment and for leave to appear and defend arising from Civil Suit No. 297 of 2020
Decision
Application to set aside default judgment dismissed; default judgment in Civil Suit No. 297 of 2020 stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application to set aside a default judgment where the applicant failed to establish sufficient cause. The court held that the applicant's admission of owing part of the debt negated any triable defence, and that the advocate's default resulted from the applicant's failure to pay professional fees, for which the applicant must bear responsibility. The application was also brought with inordinate delay of 20 months.

Outcome

Application to set aside default judgment dismissed; default judgment in Civil Suit No. 297 of 2020 stands

Facts

The Respondent obtained a default judgment in Civil Suit No. 297 of 2020 for recovery of USD 380,730 after the Applicant's advocate failed to appear when the application for leave to appear and defend came up for hearing. The Applicant's former advocate withdrew from the matter on 26 April 2021 due to non-payment of professional fees. The decree was entered on the same date. The Applicant only became aware of the judgment in December 2022 when he received a notice to show cause why execution should not issue. He then instructed new counsel and filed this application on 21 December 2022, seeking to set aside the default judgment and obtain leave to appear and defend. The Applicant claimed his former advocate had been negligent and that he had a defence based on illegality of the money lending agreement. However, the Applicant admitted in his affidavit that he attempted to pay UGX 100,000,000 of the sum he knew he owed.

Issues

  1. Whether the Applicant disclosed sufficient grounds to set aside the default judgment entered in Civil Suit No. 297 of 2020?
  2. Whether the Applicant disclosed sufficient grounds to warrant the grant of leave to appear and defend in Civil Suit No. 297 of 2020?
  3. What remedies are available?

Orders

  • Application dismissed with costs to the Respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Default Judgment — Sufficient Cause — Requirement to Establish Triable Defence
Under Order 36 Rule 11 of the Civil Procedure Rules, sufficient cause to set aside a default judgment requires evidence that the defendant has a triable defence to the suit. Where an applicant admits owing part of the debt claimed, this amounts to an admission that negates the existence of a plausible defence.
Civil Procedure — Advocate's Negligence — Failure to Pay Professional Fees — Responsibility of Litigant
A litigant ought not to bear the consequences of an advocate's default unless the litigant is privy to the default or the default results from failure on the part of the litigant to give the advocate due instructions. Payment of professional fees constitutes due instructions to an advocate, and where an advocate's default results from the litigant's failure to pay professional fees, the litigant must bear responsibility for that fault.
Civil Procedure — Setting Aside Default Judgment — Inordinate Delay — Application Filed 20 Months After Decree
An application to set aside a default judgment filed 20 months after the decree was entered constitutes inordinate delay and militates against the exercise of the court's discretion in favour of the applicant.
Contract Law — Estoppel by Conduct — Approbate and Reprobate — Money Lending Agreement
A party who has obtained the benefit of a loan under a money lending agreement is estopped by conduct from denying the transaction and cannot approbate and reprobate by challenging the legality of the agreement after receiving the benefit. A litigant who seeks justice must come to court with clean hands.

Legislation cited (10)

Cases cited (10)

  • Caltex Oil v Kyobe [1989-90] HCB 141
  • Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • National Insurance Corporation v Mugenyi & Co. Advocates (Court of Appeal Civil Appeal No. 14 of 1984)
  • Maluku Interglobal Trade Agency Ltd v Bank of Uganda [1985] HCB 65
  • Zebra Telecom and 2 Others v Stanbic Bank (U) Ltd (High Court Miscellaneous Application No. 18 of 2014)
  • Nicholas Roussos v Gulamhussein Habib Virani and Another (Supreme Court Civil Appeal No. 9 of 1993)
  • Captain Philip Ongom v Catherine Nyero Owota [2003] KALR 52
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Mitha v Ladak [1960] EA 1054
  • Ken Group of Companies Ltd v Standard Chartered Bank (U) Ltd and 2 Others (High Court Civil Suit No. 486 of 2007)

Full judgment

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

Razak v Prime Finance Company Limited (Miscellaneous Application 1786 of 2022) [2023] UGCommC 81 (13 June 2023)
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.