Wakilii

Sbeity & Anor v Akello (MISCELLANEOUS APPLICATION NO. 249 OF 2018)

High Court · [2018] UGHCCD 94 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal from a ruling setting aside a consent judgment, arising from extension of time application
Decision
Leave to appeal granted to protect applicants' right of appeal and attain the ends of justice

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Leave to appeal granted. The court held that where a consent judgment was set aside ex parte without service on the applicants or their counsel, there are prima facie grounds meriting serious judicial consideration. The principle from Sango Bay Estate applies: leave is granted where grounds merit serious judicial consideration. A consent judgment derives its effect from the parties' agreement and may only be set aside on grounds applicable to contracts. Setting it aside without hearing the parties raised serious questions of natural justice requiring appellate review.

Outcome

Leave to appeal granted to protect applicants' right of appeal and attain the ends of justice

Facts

The respondent filed a summary suit (HCCS No. 172 of 2013) against the applicants for US$72,050. An ex parte decree was entered in her favour on 22 November 2013. On 21 October 2014, the parties entered a consent settlement. The respondent subsequently filed Miscellaneous Application No. 769 of 2014 to set aside the consent judgment. The application was heard ex parte on 17 April 2015 and the consent settlement was set aside. The applicants contended they were never served with the notice of motion and neither were their advocates. The applicants claimed they had paid US$20,000 pursuant to the consent settlement as full and final settlement, which the respondent received but later claimed was only an instalment. The respondent also retained possession of the motor vehicle that was the subject of the dispute. The applicants filed for extension of time to seek leave to appeal, which was granted, and then brought this application for leave to appeal.

Issues

  1. Whether there are sufficient grounds to grant leave to appeal against the ruling setting aside a consent judgment entered ex parte.

Orders

  • Application allowed.
  • Leave to appeal against the ruling in Miscellaneous Application No. 769 of 2014 granted.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Leave to Appeal — Test for Grant of Leave
Leave to appeal will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration, and where the grant of leave is necessary to protect the applicant's right of appeal and for attaining the ends of justice.
Contract Law — Consent Judgments — Grounds for Setting Aside
A consent judgment is like a contract which derives its legal effect from the agreement of the parties and may only be set aside on the same grounds as those on which a contract would be set aside.
Civil Procedure — Leave to Appeal — Real Prospect of Success Test
A real prospect of success means that the prospect for success must be realistic rather than fanciful. The court considering an application for permission is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is a real prospect of success.
Civil Procedure — Advocates — Professional Conduct — Appearing as Witness and Counsel
An advocate may not appear before any court in any matter in which they have reason to believe they will be required as a witness or if it becomes apparent they will be required as a witness, save for evidence on formal or non-contentious matters. An advocate who deposes an affidavit in a contentious application cannot properly continue to appear as counsel to argue that same application.

Legislation cited (3)

Cases cited (4)

  • Sango Bay Estate v Dresdner Bank & Attorney General [1971] EA 17
  • Hirani v Kassam (1952) 19 EACA 131
  • Swain v Hillman [2001] 1 All ER 91
  • Degeya Trading Stores (U) Ltd v Uganda Revenue Authority (Court of Appeal Civil Application No. 16 of 1996)

Full judgment

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

Sbeity & Anor v Akello (MISCELLANEOUS APPLICATION NO. 249 OF 2018) [2018] UGHCCD 94 (1 June 2018)
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.