S.M Ssebowa & Family Limited v Manna Harvestors International Ltd (Civil Appeal No. 161 of 2017)

Observed later treatment

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

By majority, the Court of Appeal allowed the appeal, holding that an application under Order 36 rule 11 CPR must contain, in one competent application, all prayers within the court's discretion — setting aside the decree, staying or setting aside execution, and leave to appear and defend — and must demonstrate ineffective service and triable issues by affidavit, with a draft defence. An application that instead seeks extension of time to later file an application for leave is incurably defective. The trial Judge erred in granting orders not prayed for and in holding triable issues need not be shown. Kibeedi JA dissented, favouring a liberal reading disclosing triable issues and ineffective service.

Outcome

Appeal allowed by majority; the trial court's ruling and orders setting aside the default judgment set aside, with costs to the appellant

Facts

The appellant, S.M Ssebowa & Family Limited, sued the respondent company, Manna Harvestors International Ltd, in Civil Suit No. 34 of 2016 by summary procedure under Order 36 CPR, apparently seeking recovery of leased land. A default judgment and decree were entered on 29 November 2016 after the respondent did not appear, and execution followed, including eviction and attachment of the respondent's tractors. The respondent filed Miscellaneous Application No. 591 of 2016 under Order 36 rule 11 CPR seeking to set aside the judgment and decree and to be accorded an opportunity, or extension of time, to lodge an application for leave to appear and defend. It contended it had never been effectively served and had a substantial defence based on the lease agreement's termination clause. The trial Judge set aside the default judgment and decree, set aside execution and the eviction warrant, ordered release of the attached tractors, and granted leave to file a defence within 14 days. The appellant appealed.

Issues

1. Whether the application seeking to set aside a default judgment and extension of time to file an application for leave to appear and defend under Order 36 rule 11 CPR was bad in law.
2. Whether the trial Judge could grant leave to appear and defend and set aside execution when those orders were not specifically prayed for.
3. Whether an applicant proceeding under Order 36 rule 11 CPR must show the existence of triable issues and/or a reasonable defence.
4. Whether the respondent company was effectively served with the court summons.

Orders

• The ruling and orders of the trial Judge dated 20th February 2017 are set aside.
• The respondent to meet the costs in this appeal and in the trial court.

Rules and key headnotes

Legislation cited (12)

• Civil Procedure Rules S.I 71-1 O.36 r.11
• Civil Procedure Rules S.I 71-1 O.36 r.1
• Civil Procedure Rules S.I 71-1 O.36 r.2(b)
• Civil Procedure Rules S.I 71-1 O.36 r.3(1)
• Civil Procedure Rules S.I 71-1 O.36 r.4
• Civil Procedure Rules S.I 71-1 O.29 r.2
• Civil Procedure Rules S.I 71-1 O.6 rr.1 and 7
• Civil Procedure Rules S.I 71-1 O.7 rr.1(g) and 7
• Civil Procedure Act s.98
• Companies Act 2012 s.274
• Rules of the Court of Appeal r.29
• Constitution of the Republic of Uganda art.126(2)(e)

Cases cited (21)

• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Pandya vs. R. (1957) E.A. 336
• Okeno vs. Republic (1972) E.A. 32
• Charles B. Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
• Zola & Another versus Ralli Brothers Ltd & Another (1969) EA 691
• Harriet Nankabirwa v Manshulthala Manilal Sha (Miscellaneous Application No. 70 of 2006)
• Rwabugande Godfrey v Bitamisi Namuddu (Civil Appeal No. 87 of 2009)
• Alcon International Ltd v The New Vision and Publishing Co. Ltd & Another (Civil Appeal No. 4 of 2010)
• Sinba K Limited v UBC (Civil Appeal No. 3 of 2014)
• Hannington Wasswa and another v Maria Onyango Ochola and others (Civil Appeal No. 22 of 1993)
• Fang Min v Belex Tours and Travel Limited (Civil Appeal No. 6 of 2013)
• Attorney General v Paul Semwogerere & Zachary Olum (Constitutional Appeal No. 3 of 2004)
• Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No. 10 of 2009)
• Makula Interglobal Trade Agency Vs Bank of Uganda [1985] HCB 65
• Bunjo v KCB (Uganda) Ltd (Miscellaneous Application No. 124 of 2014)
• Corporate Insurance Co. Ltd Vs Ngali Beach Hotel Ltd [1995-1998] EA 1
• Uganda Commercial Bank Vs Mukoome Agencies [1982] H.C.B 22
• Post Bank Uganda Ltd v Abdu Sozi (Civil Appeal No. 8 of 2015)
• Geoffrey Gatete v William Kyobe (Civil Appeal No. 7 of 2005)
• Emer Naggy v Ekame John and another (Civil Appeal No. 8 of 2008)
• Pirbhai Lalji Vs Hassanali (1962) EA 306

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Inyatsi Construction Limited & Another v Plinth Consultancy Services Limited & Another (Miscellaneous Application 1189 of 2024)
• v Hydro Uganda Limited & 3 Others v UAP Old Mutual Insurance Uganda Limited (Miscellaneous Application 2493 of 2023)

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