Razco Ltd and Another v Nassaf Uganda (Miscellaneous Application 870 of 2016)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that the application to set aside an exparte judgment was misconceived and overtaken by events where execution of the decree had been fully completed and a return of warrant filed before the hearing of the application. The sale of the attached property in execution had become absolute upon payment to court, and no application to set aside execution had been filed. Setting aside the judgment where a bonafide purchaser had acquired good title would occasion a miscarriage of justice.

Outcome

Application dismissed with costs to the respondent; exparte judgment and decree remain intact; execution and sale of property completed and final

Facts

The Respondent filed Civil Suit No. 827 of 2014 against the Applicants for breach of a contract for lease of a mobile stone crusher machine, claiming USD 200,000 special damages and general damages. After being unable to effect ordinary service, the Respondent obtained leave for substituted service which was published in the Daily Monitor newspaper on 6 February 2015. The Applicants did not file a defence and exparte judgment was entered on 9 November 2015 awarding the Respondent USD 175,256.91, general damages of USD 76,000, interest, and costs. Execution was authorised in March 2016. A warrant of attachment and sale was issued and the machinery was sold to a third party purchaser on 16 September 2016. The Applicants filed this application to set aside the exparte judgment on 2 September 2016, before execution was completed but after the warrant had been issued. By the time the application was heard on 24 November 2016, execution was complete and a return of warrant had been filed on 21 September 2016.

Issues

1. Whether there was proper service of court process on the Applicants?
2. Whether the Applicants are justifiably entitled to the orders sought to set aside the exparte judgment?

Orders

• Application dismissed.
• Costs awarded to the respondent.

Rules and key headnotes

Legislation cited (20)

• Civil Procedure Act Cap 71 s.49
• Civil Procedure Act Cap 71 s.98
• Civil Procedure Rules SI 71-1 Order 5 Rule 2
• Civil Procedure Rules SI 71-1 Order 5 Rule 4
• Civil Procedure Rules SI 71-1 Order 5 Rule 9
• Civil Procedure Rules SI 71-1 Order 5 Rule 22
• Civil Procedure Rules SI 71-1 Order 5 Rule 28
• Civil Procedure Rules SI 71-1 Order 9 Rule 5
• Civil Procedure Rules SI 71-1 Order 9 Rule 10
• Civil Procedure Rules SI 71-1 Order 9 Rule 12
• Civil Procedure Rules SI 71-1 Order 9 Rule 27
• Civil Procedure Rules SI 71-1 Order 17 Rule 4
• Civil Procedure Rules SI 71-1 Order 29 Rule 2
• Civil Procedure Rules SI 71-1 Order 52 Rule 1
• Oaths Act s.5
• Evidence Act Cap 6 s.73
• Evidence Act Cap 6 s.75
• Evidence Act Cap 6 s.76
• Constitution of Uganda Article 28(1)
• Constitution of Uganda Article 44(c)

Cases cited (25)

• Ladak Abdullah Muhamed Hussein v Griffith Isingoma Kakiiza & 2 Ors (Supreme Court Civil Appeal No. 8 of 1995)
• The Co-Operative Bank Ltd v Amos Mugisa (High Court Miscellaneous Application No. 549 of 2009)
• KCC v. Apollo Hotel [1985] HCB 78
• David Ssesanga v Greenland Bank Ltd (Miscellaneous Application No. 406 of 2010)
• Geoffrey Gatete and Angela Maria Nakiyonga v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
• Valery Alia v Alionzi John (High Court Civil Suit No. 155 of 2010)
• Jessy Technical Services Ltd & Anor v Ajay Industrial Corporation Ltd (Miscellaneous Application No. 0167 of 2012)
• National Enterprises Corporation v Mukisa Foods Ltd (Court of Appeal Civil Appeal No. 42 of 1997)
• Evans v. Bartlam [1973] AC 437 at 480
• Makula International Ltd V His Eminence Cardinal Nsubuga & Anor [1982] HCB 11
• Kisugu Quarries v The Administrator General (Supreme Court Civil Appeal No. 10 of 1998)
• Alfred Orochi Vs Abdulaham Kasim (1978) HCB 52
• In the matter of Pascal Dhabulo (1977) HCB 75
• Abbas Nsubuga Vs Asuman Kamya (1995) HCB 104
• Express (K) Ltd Vs Patel [2001] 1 EA 54 (CAK)
• Kakooza John Baptist v The Electoral Commission And Anor (Election Petition Appeal No. 11 of 2007)
• Christopher Kisembo and Anor v Papada Holdings & Anor (High Court Miscellaneous Application No. 610 of 2013)
• Julius Maganda v NRM (High Court Miscellaneous Application No. 154 of 2010)
• Nyaketcho Vanessa Leone v Gershom Obu (Civil Appeal No. 012 of 2012)
• Nicholas Roussos v Gulam Hussein Habib Virani and Another (Court of Appeal No. 9 of 1993)
• Henry Kawalya v I. Kinyakzoanzi [1975] HCB 372
• Wamini v Kirima [1969] E.A. 172
• S.Kyobe Senyange v. Naks Ltd [1980] HCB 31
• Nicholas Roussos v Gulam H.H Virani (Supreme Court Civil Appeal No. 3 of 1993)
• Nasaka Farmers & Producers Ltd v. Aloysius Tamale [1992 - 1993] HCB 203

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