Wakilii

Senana Investments Ltd v GKO Medicines Ltd (HCT-00-CC-MA 625 of 2013)

High Court · [2013] UGCOMMC 207 · 2013 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 under Order 9 rule 12 CPR arising from Civil Suit No. 185 of 2013
Decision
Ex parte judgment set aside and applicants granted leave to file defence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service of summons by newspaper publication was not effective where the second applicant, who was also the managing director of the first applicant company, was out of Uganda on a business trip at the time of publication. Effective service requires not only lawful service but also service that produces the desired result of making the defendant aware of the suit. The ex parte judgment was set aside.

Outcome

Ex parte judgment set aside and applicants granted leave to file defence

Facts

The respondent sued the applicants for UGX 100,000,000 being the price of office equipment, fixtures and fittings allegedly sold to them. When direct service of summons failed, the respondent obtained an order for substituted service and advertised the summons in the New Vision newspaper on 4 May 2013. The applicants did not file a defence and an ex parte judgment and decree were entered against them. The second applicant, who was also the managing director of the first applicant company, was on a business trip to China from 8 April 2013 to 31 May 2013, and was therefore out of Uganda when the summons was published. Upon return on 31 May 2013, she learned of the judgment on 17 July 2013 when bailiffs served a warrant of attachment. The applicants instructed counsel and filed this application on 22 July 2013 to set aside the ex parte judgment, arguing ineffective service, lack of contractual relationship with the respondent, and procedural irregularities.

Issues

  1. Whether there was just cause to set aside the ex parte judgment and decree obtained in HCCS No. 185 of 2013.
  2. Whether service of summons on the applicants by way of substituted service through newspaper publication was effective when the second applicant was out of Uganda at the time of publication.

Orders

  • The ex parte judgment and decree in Civil Suit No. 185 of 2013 is set aside.
  • The execution of the decree is set aside.
  • The applicants are granted leave to file their Written Statements of Defence within fifteen days from the date of this ruling.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Unfettered Judicial Discretion under Order 9 Rule 12
Order 9 rule 12 of the Civil Procedure Rules gives the High Court unfettered discretion to set aside or vary ex parte judgment on such terms as may be just, and this discretion must be exercised judicially taking into account the facts, circumstances and merits of each case.
Civil Procedure — Service of Process — Effective Service — Substituted Service by Publication
Substituted service by way of publishing summons in a newspaper, though lawful and deemed good service, is not effective service where it does not produce the desired result of bringing the suit to the defendant's notice, such as where the defendant is out of the country at the time of publication and therefore has no opportunity to see the advertisement.
Civil Procedure — Service on Companies — Requirement of Notice to Managing Director
Service of summons on a corporate defendant is not effective if the managing director who has the authority to act on behalf of the company is not made aware of the suit, since a company does not have a mind of its own and can only become aware through its officers.
Civil Procedure — Setting Aside Ex Parte Judgments — Liberal Approach Where Defence on Merits Exists
A liberal view is taken in setting aside ex parte judgments where the applicant has a defence on the merits or where it appears the applicant had not been trying to deliberately obstruct or delay the course of justice, particularly where an officer of a corporation with multifarious duties failed to enter appearance.

Legislation cited (11)

Cases cited (12)

  • Nicholas Roussos v Gulamhussein Habib Virani and Nazmudin Habib Virani (CACA No. 9 of 1993)
  • Patel v EA Cargo Handling Services (1974) EA 75
  • Kimani v McConnel (1966) EA 547
  • Geoffrey Gatete and Angela Maria Nakigonya v William Kyobe (SCCA No. 7 of 2005)
  • Kampala City Council v Apollo Hotel Corporation [1985] HCB 77
  • Remco Ltd v Mistry Jadva Parbat and Co Ltd [2002] 1 EA 233
  • Baiywo v Bach [1986-1989] EA 27
  • Makula International Ltd v Cardinal Nsubuga and Another (SCCA No. 4 of 1981)
  • Mbogo and Another v Shah [1968] EA 93
  • Attorney General and Another v James Mark Kamoga and Another (SCCA No. 8 of 2004)
  • Henry Kawalya v J Kinyakwanzi [1975] HCB 372
  • Pirbhai Lalji v Hassanali (1962) EA 306

Full judgment

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

Senana Investments Ltd v GKO Medicines Ltd (HCT-00-CC-MA 625 of 2013) [2013] UGCommC 207 (10 December 2013)
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.