Wakilii

Sebuliba Christopher and Another v Lucas Investments Ltd (Miscellaneous Application 643 of 2015)

High Court · [2016] UGCOMMC 316 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte decree arising from Civil Suit No. 769 of 2015
Decision
Exparte decree in Civil Suit No. 769 of 2015 stands; applicants' application to set aside decree dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to set aside an exparte decree under Order 36 Rule 11 of the Civil Procedure Rules requires proof that service of summons was ineffective or that there is other good cause. The court held that service was duly effected as shown by the uncontested affidavit of service. The applicants' proposed defence was found to be a sham, failing to raise any reasonable ground of defence. The lease agreement clearly entitled the respondent to reimbursement of rent paid and penal interest following breach. The application was dismissed with costs.

Outcome

Exparte decree in Civil Suit No. 769 of 2015 stands; applicants' application to set aside decree dismissed

Facts

On 1 August 2014, the applicants signed a lease/tenancy agreement with the respondent for property comprised in FRV 1130 Folio 14 Plot 12 Byatike Road Entebbe for an initial period of 15 years. The respondent was to pay USD $13,000 at execution and USD $3,800 within two months, with monthly rent of USD $1,400 for the first year. The respondent paid USD $20,700 in total. The applicants did not disclose that the property had been mortgaged to Bank of Baroda. The respondent vacated the property on 31 October 2014 and the lease commenced. When the applicants defaulted on their mortgage, the property was advertised for sale on 25 February 2015 and sold to Mrs. Jolly Bunyenyezi by Bank of Baroda on 28 August 2015. The respondent was evicted on 28 February 2015, having occupied the premises for approximately 3.5 months. The respondent filed Civil Suit No. 769 of 2015 claiming refund of USD $20,700 and UGX 130,000 with penal interest of 40% per annum. An exparte decree was entered on 7 May 2015 after the applicants failed to enter appearance. The applicants later applied to set aside the decree, claiming they were never served with summons and had a good defence.

Issues

  1. Whether the service of summons on the applicants was effective.
  2. Whether the applicants had a good defence to the underlying claim sufficient to warrant setting aside the exparte decree.
  3. Whether the applicants raised triable issues warranting leave to defend the suit.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Decrees — Burden of Proof — Service of Summons
Under Order 36 Rule 11 of the Civil Procedure Rules, an applicant seeking to set aside an exparte decree must prove on a balance of probabilities that service of summons was not effective or that there is other good cause. A blanket denial of service without plausible evidence to rebut an affidavit of service witnessed by multiple persons is insufficient.
Civil Procedure — Setting Aside Exparte Decrees — Good Defence on Merits
Before setting aside an exparte decree, the court must be satisfied that the applicant has a reasonable excuse for failing to appear and a prima facie defence raising triable issues. A proposed defence is a sham if it fails to raise any reasonable ground of defence or is contradicted by the applicant's own conduct and the documentary evidence.
Contract Law — Breach of Lease Agreement — Non-Disclosure of Encumbrances
Where a lessor executes a lease agreement without disclosing that the property is mortgaged, and the property is subsequently sold by the mortgagee resulting in the lessee's eviction before the lease term expires, the lessor is in breach of contract and the lessee is entitled to reimbursement of rent paid and remedies provided in the lease agreement.
Contract Law — Contractual Interpretation — Commercial Contracts
In commercial transactions, the duty of the court is to give effect to the contract as agreed by the parties, not to dictate what the court thinks they ought to have agreed. Where parties have freely executed a written agreement, the court will enforce its terms according to their plain meaning.

Legislation cited (4)

Cases cited (9)

  • Abu Baker Kato v Tomson Muhwezi [1992-1993] HCB 212
  • Mahad Sentongo v Asia Rizo Nabisere (Miscellaneous Application No. 843 of 2013)
  • Geoffrey Gatete and Another v William Kyobe [2007] 1 HCB 54
  • Mwitweki Boniface v Onyeko Jimmy [2006] 1 HCB 118
  • Caltex Oil v Kyobe [1980-1990] HCB 141
  • Bob Kasango v Paul Nalukoola Muwanga (Miscellaneous Application No. 0073 of 2011)
  • Nakitto Margaret Veilleux v Karugaba Joseph and Another (Miscellaneous Application No. 325 of 2013)
  • Alfred Oroch v Abdulrhman Kasim [1978] HCB 53
  • Atom Outdoor Ltd v Arrow Centre (U) Ltd (Civil Suit No. 488 of 2003)

Full judgment

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Sebuliba Christopher and Another v Lucas Investments Ltd (Miscellaneous Application 643 of 2015) [2016] UGCommC 316 (21 November 2016)
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.