Wakilii

Swift Enginering Ltd and Another v Namugereka Investments Limited (Miscellaneous Application No. 1119 of 2016)

High Court · [2017] UGCOMMC 299 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and decree arising from Civil Suit No. 613 of 2014
Decision
Application to set aside ex parte judgment dismissed; consent settlement remains in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Commercial Division dismissed an application to set aside an ex parte judgment where the applicants alleged non-service and forgery of signature but failed to produce expert evidence of forgery. The court held that a consent settlement entered into during execution proceedings and partially performed superseded prior procedural objections. The applicants' claim of duress in executing the consent was unsupported, as the threat of lawful civil imprisonment does not constitute unlawful pressure vitiating consent.

Outcome

Application to set aside ex parte judgment dismissed; consent settlement remains in force

Facts

The respondent sued the applicants in Civil Suit No. 613 of 2014 for recovery of UGX 95,000,000, breach of contract, interest and costs. The applicants failed to file a written statement of defence and default judgment was entered against them. During execution proceedings, the second applicant was arrested by bailiffs. On 13 October 2016, the parties entered into a consent settlement witnessed by counsel and the Registrar, under which the applicants paid UGX 2,500,000 and agreed to pay the balance in monthly instalments of UGX 1,800,000. The applicants subsequently filed this application seeking to set aside the ex parte judgment, alleging non-service and forgery of the second applicant's signature on the summons. They also claimed duress in executing the consent settlement.

Issues

  1. Whether the ex parte judgment and decree entered against the applicants should be set aside.
  2. Whether the applicant is entitled to the orders sought.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Setting Aside Ex Parte Judgment — Proof of Non-Service and Forgery
Where an applicant alleges forgery of signature on court summons to establish non-service, the applicant must produce expert evidence or the evidence of a person acquainted with the handwriting of the person whose signature is alleged to have been forged. In the absence of such evidence, the court cannot rely on the applicant's own assertions of forgery.
Consent Judgments — Effect and Finality
A consent judgment freely entered into by parties and witnessed by counsel supersedes all prior pleadings, evidence, and procedural objections regarding how the suit was instituted. Once a consent judgment is partially executed, the court is reluctant to interfere with it and may only set it aside on limited grounds such as illegality, fraud, or mistake.
Duress — Lawful Pressure and Threat of Court Process
Lawful pressure, including the threat of lawful court process such as commitment to civil prison for debt, does not constitute duress vitiating consent. To establish duress, a party must prove that unlawful pressure was applied causing loss of free will. Threat of lawful enforcement of a court decree cannot be characterised as unlawful pressure.

Legislation cited (22)

Cases cited (46)

  • Mugume Ben & another v Akankwasa Edward [2008] HCB 159
  • Jessy Technical Services Ltd & another vs. Ajay Industrial Corporation Ltd & another HCT Commercial Division Miscellaneous Application No. 0617 of 2012 And Miscellaneous Application No 616 of 2012
  • National Industrial Credit Bank Ltd v Mutinda [2003] 1 EA 194
  • Baiywo v Bach [1986-1989] 1 EA 27
  • Evans v Bartlam [1937] 2 All ER 645
  • Tree Shade Motor Ltd v DT Dobie and another [1995-1998] 1 EA 314
  • Wekesa v Wasike [2005] 1 EA 500
  • Vambeco Enterprises Ltd vs. Attorney General M.A of 0155 of 2014
  • Uganda Railways Corporation v Ekwaru & Others [2008] HCB 51
  • Makula International Ltd v His Eminence Cardinal Wamala Nsubuga [1982] 1 HCB 11
  • Batemuka v Anywar [1987] HCB 71
  • Animal Feeds vs. A.G HCCS 788 of 1990
  • Lukyamuzi James vs. Akright Projects and Another HCCS No. 329 of 2002
  • Solomon Chaplain Lui vs. Tekplan Limited Misc. Applcn No. 825 of 2013
  • Solomon Vs Solomon
  • Eastern Builders & Engineers Ltd vs. Malva Construction (U) Ltd M.A No. 0563 of 2008
  • John Okello vs. Mulodokany Mudukany and another 110 [1993] 1 KALR at Page 111
  • Kikoma Saw Millers Ltd [1976] HCB 52
  • National Forest Authority vs. Beachside Development Services Ltd. Civil Appeal No. 80 Of 2009 (CA)
  • Peter Mulira vs. Mitchell Cofts Civil Appeal No. 15 Of 2002 (CA)
  • Annet Nansubuga & 2 Ors vs. Ryan Lukyamuzi Katongole Misc. Appln 81 of 2015 (Arising From Civil Suit No. 542 of 2014)
  • Oil Seeds vs. V.D. Bank Misc. App. 249 of 2001 (Arising From Application No. 4/93)
  • Hirani v Kassan (1952) 12 EACA 131
  • Ronald Ndawula vs. Ugafin Limited M.A No. 514 of 2013 (Arising From Civil Suit No. 433 of 2012)
  • Sheikh Jama v Dubat Farah (1959) EA 792
  • Hussein Janmohamed & Sons v Twentshe Overseas Trading Co Ltd (1967) EA 287
  • Attorney General and Another vs. James Mark Kamoga and Another Supreme Court Civil Appeal No. 8 of 2004
  • Jennifer Harriet Bamwite vs. Arvind Patel Misc. Application No. 188 of 2014
  • Esther Nakulima vs. Anne Nandawula Kabali Misc. Application No. 235 of 2013 arising from HCCS 277/2012
  • SOBETRA (U) Ltd and another versus Leads Insurance Ltd HCCS No. 59 of 2011
  • Amratlal Purshottam Bhimji & Another vs. Gian Singh Bhambra & 3 Others Civil Suit No. 239 of 2009 Consolidated With Civil Suit No. 298 of 2010
  • Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd (1926) AC 101
  • Mugisha Florence vs. Babirye Florence & 3 Others Civil Suit No. 239 of 2009
  • Papayya Sastry & Others vs. Government of A.P & Ors Case No: Appeal (Civil) 5097-5099 of 2004 (Supreme Court of India)
  • Livingstone Sewanyana vs. Martin Aliker SCCA No. 4 of 1991
  • Hannington Wasswa & Another vs. Maria Onyango Ochola & 3 Others SCCA No. 22 of 1993
  • Chesoni and another v Silverstein and another [2005] 2 EA 39
  • Macfay v United African Limited [1961] 3 All ER 1159
  • Alice Norah Mukasa vs. Centenary Bank Ltd & Another Civil Suit No. 77 of 2010
  • Pinnacle Projects Ltd vs. Business in Motion Consultants Ltd Misc. Application No. 362 of 2010
  • Margret Muhanga Mugisha and 4 others vs. UBC SCCA No. 3 of 2014
  • Odd Jobbs v Mubia [1970] EA 476
  • Remco Ltd v Miistray Jadbra Ltd (2002) 1 EA 233
  • Nguku v Republic [2004] 1 EA 188
  • Nakulima v Nandawula Misc. Applcn No. 235 of 2013
  • Hasanli v City Motors Accessories Ltd & Others (1972) EA 423

Full judgment

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Swift Enginering Ltd and Another v Namugereka Investments Limited (Miscellaneous Application No. 1119 of 2016) [2017] UGCommC 299 (19 May 2017)
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.