Wakilii

Securex Amenities v Saratan Construction (U) Ltd (Miscellaneous Application 571 of 2015)

High Court · [2016] UGCOMMC 318 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree entered in a summary suit, arising from alleged clerical error in earlier application for leave to defend
Decision
Ex parte judgment and decree set aside; applicant granted leave to file defence; matter referred to arbitration.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court set aside an ex parte judgment and decree where the defendant had filed an application for leave to appear and defend within the prescribed ten-day period (computed by excluding the first day of service), despite a minor clerical error in the application. The court held that where triable issues exist, the defendant should be allowed to defend. The matter was referred to arbitration pursuant to the contract clause.

Outcome

Ex parte judgment and decree set aside; applicant granted leave to file defence; matter referred to arbitration.

Facts

The respondent/plaintiff obtained an ex parte judgment and decree in Civil Suit No. 384 of 2016 on 7 July 2016 on the basis that the applicant/defendant had not filed an application for leave to appear and defend in response to summons served on 20 June 2016. The applicant had in fact filed Miscellaneous Application No. 551 of 2016 on 30 June 2016 seeking leave to appear and defend, but the application contained a minor clerical error — it referred to the underlying suit as Civil Suit No. 2015 instead of Civil Suit No. 384 of 2016, although the parties' names were correctly stated. The applicant applied under Order 36 rule 11 to set aside the judgment, decree, and execution, contending that the application for leave was filed in time and that it had a good defence based on alleged breach of contract by the plaintiff. The respondent opposed, arguing that the application was filed out of time and that the applicant had no triable defence.

Issues

  1. Whether the applicant has shown good cause to have the judgment and execution of the decree in Civil Suit No. 384 of 2016 set aside.
  2. Whether the application for leave to appear and defend was filed within the ten days prescribed by law.
  3. Whether the applicant has a triable defence on the merits.

Orders

  • Application allowed.
  • Judgment and decree entered in Civil Suit No. 384 of 2016 dated 7 July 2016 set aside.
  • Execution of the decree in Civil Suit No. 384 of 2016 set aside.
  • Applicant to file written statement of defence within 15 days from the date of ruling.
  • Miscellaneous Application No. 551 of 2016 rendered redundant and disposed of.
  • Suit to be referred for arbitration in accordance with clause 36 of the agreement.
  • Costs of the application awarded to the applicant, to be borne by the respondent.

Rules and key headnotes

Civil Procedure — Summary Suits — Computation of Time — Exclusion of First Day
In computing the ten-day period for filing an application for leave to appear and defend under Order 36 of the Civil Procedure Rules, the day on which summons is served is excluded and time begins to run the following day, in accordance with Order 51 rule 8 of the Civil Procedure Rules.
Civil Procedure — Order 36 Rule 11 — Setting Aside Ex Parte Judgment — Good Cause
Under Order 36 rule 11 of the Civil Procedure Rules, the court may set aside an ex parte judgment and decree if satisfied that service of summons was not effective or for any other good cause, which shall be recorded. Good cause includes a showing that an application for leave to appear and defend was filed in time and that the defendant has triable issues warranting adjudication.
Civil Procedure — Summary Suits — Defence on the Merits — Triable Issues
A defence on the merits does not mean a defence that must succeed; it simply means triable issues which raise a prima facie defence and which should go to trial for adjudication. Where serious allegations of breach of contract and respective denials raise triable issues, the defendant should be granted leave to defend.
Civil Procedure — Clerical Errors — Effect on Validity of Application
A minor clerical error in an application, such as an incorrect reference to the civil suit number where the parties' names are correct, does not render the application invalid or ineffective where it was filed within the prescribed time and the substance of the application is clear.

Legislation cited (5)

Cases cited (9)

  • Twentsche Overseas Trading Co. Ltd v Bombay Garage Ltd (HCCS No. 604 of 1958)
  • Makula International v His Eminence Cardinal Nsubuga & Another (Court of Appeal Civil Appeal No. 4 of 1991)
  • Pinnacle Projects Ltd v Business Motion Consults Ltd (Miscellaneous Application No. 362 of 2010)
  • Sembule Steel Mills Limited v Euro Metal Service (Miscellaneous Application No. 428 of 2012)
  • National Forestry Authority v Kasese Cobalt Co. Ltd (Miscellaneous Application No. 110 of 2012)
  • CEDA Financial Services Limited v Q-Services Ltd & 3 Others (Miscellaneous Application No. 06 of 2015)
  • Sulaiman Nsamba v Fred Balinda (HCCS No. 102 of 1998)
  • Patel v Cargo Handling Services Ltd [1994] 1 EA 75
  • Kotecha v Mohammed [2002] 1 EA 112

Full judgment

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Securex Amenities v Saratan Construction (U) Ltd (Miscellaneous Application 571 of 2015) [2016] UGCommC 318 (20 October 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.