Wakilii

Zena Abdalla Okello & 2 oers v Mayan Aziz (Misc.App.No.118 Of 2009) (Misc.App.No.118 of 2009)

High Court · [2010] UGHC 87 · 2010 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. 18 of 2008
Decision
Application to set aside ex parte judgment dismissed; ex parte judgment and decree remain in force

Observed later treatment

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Holding

The High Court dismissed an application to set aside an ex parte judgment and decree. The court held that the applicants failed to establish sufficient cause for their non-appearance at the hearing, finding that proof of service on counsel was adequate and no mutual consent to postpone had been demonstrated. The court further held that the applicants' counterclaim raising fraud was res judicata, having been determined in previous litigation concerning the same estate. The application was also brought seven months after the decree, which the court considered an unreasonably long delay.

Outcome

Application to set aside ex parte judgment dismissed; ex parte judgment and decree remain in force

Facts

The applicants sought to set aside an ex parte judgment and decree entered in Civil Suit No. 18 of 2008. The matter concerned the estate of the late Okello, in respect of which the respondent had obtained Letters of Administration. The applicants had filed a written statement of defense and counterclaim alleging fraud. On the scheduled hearing date, neither the applicants nor their counsel attended court. Counsel for the applicants claimed he had endorsed the hearing notice indicating the date was inconvenient and proposing a mutually agreed alternative date, and that on the hearing day he was taking his children to school at the start of a new term. The respondent opposed the application, arguing that the issues raised in the counterclaim were res judicata, having been determined in Nakawa CS No. 302/04 where the applicants had challenged the validity of the will and the grant of Letters of Administration, and that suit was dismissed. The applicants also appealed that decision to the High Court in HCCS No. 17/08. The current application was filed seven months after the decree was entered.

Issues

  1. Whether the applicants had sufficient cause for not attending court when the matter was called for hearing.
  2. Whether the applicants had a defense on the merits that warranted setting aside the ex parte judgment.
  3. Whether the application was brought within a reasonable time.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgment — Sufficient Cause for Non-Appearance
An applicant seeking to set aside an ex parte judgment must prove that he was prevented by sufficient cause from appearing when the suit was called for hearing. Proof of service on counsel is adequate to establish that the party had notice, and an endorsement on the hearing notice proposing a mutually convenient date does not constitute sufficient cause where no evidence is shown of mutual consent by the opposing party to postpone.
Civil Procedure — Setting Aside Ex Parte Judgment — Defense on the Merits and Res Judicata
A court will not set aside an ex parte judgment where the defense raised is res judicata. Where a party has previously litigated the same issues in another court and lost, and has appealed that decision, attempting to relitigate those issues by way of counterclaim in a fresh suit constitutes an abuse of process.
Civil Procedure — Setting Aside Ex Parte Judgment — Time Limits and Reasonable Delay
An application to set aside an ex parte decree must be brought within a reasonable time. A delay of seven months between the entry of the decree and the filing of the application is unreasonably long and militates against the exercise of the court's discretion in favour of the applicant.

Legislation cited (6)

Cases cited (6)

  • Samwiri Bamulere v Patrick Ngobi David and Another (1978) HCB 249
  • Tandjhera v Corporation Energo Project (1988-90) HCB 157
  • Patel v EA Cargo Handling Services Ltd (1974) EA 76
  • Luca Marrisa v Uganda Breweries Ltd (1988-90) HCB 131
  • Golooba Godfrey v Harriet Kizito (2007) HCB 31
  • S Kyobe Senyange v Nakis Ltd (1980) HCB 20

Full judgment

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

Zena Abdalla Okello & 2 oers v Mayan Aziz (Misc.App.No.118 Of 2009) (Misc.App.No.118 of 2009) [2010] UGHC 87 (13 October 2010)
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.