[2017] UGCommC 95
The court found that the applicants were served with the pleadings and failed to provide any reasons for not seeking leave to appear and defend the suit within the prescribed period. Their affidavits did not deny service nor offer any explanation for their inaction. As a result, the applicants forfeited their right...
Source-derived case information.
- Citation
- [2017] UGCommC 95
- Parties
- Applicant: Bukenya Emmanuel; Applicant: Nekambuza Ernest; Applicant: Katende Roma; Respondent: Equity Bank Ltd; Respondent: Fred Kaganda
- Court
- Commercial Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- HCT-00-CC-MA 510 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Default Judgment, Leave to Appear and Defend, Execution of Decree, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bukenya Emmanuel
Applicant
Nekambuza Ernest
Applicant
Katende Roma
Applicant
Equity Bank Ltd
Respondent
Fred Kaganda
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicants were notified of the suit and thus failed to contest it.
- 2 Whether the applicants were prevented by good cause from filing an application seeking leave to appear and defend within the prescribed period.
- 3 Whether the default decree and subsequent execution should be set aside.
Ratio Decidendi
The court found that the applicants were served with the pleadings and failed to provide any reasons for not seeking leave to appear and defend the suit within the prescribed period. Their affidavits did not deny service nor offer any explanation for their inaction. As a result, the applicants forfeited their right to contest the proceedings, and the default judgment and subsequent execution were valid. The application to set aside the default decree and execution was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**(COMMERCIAL DIVISION)**
**HCT-00-CC-MA-0510-2016**
**BUKENYA EMMANUEL & 2 OTHERS :::::**::::::::::::::::: **APPLICANT**
**VERSUS**
**EQUITY BANK LTD :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**
**BEFORE: THE HON. MR. JUSTICE DAVID K. WANGUTUSI**
**R U L I N G:**
In this application, Bukenya Emmanuel, Nekambuza Ernest and Katende Roma, referred to as the 1st, 2nd and 3rd Applicantsbrought this application against Equity Bank Ltd and Fred Kaganda, who are called the 1st and 2nd Respondents respectively, seeking orders that
1. The default Decree given in favour of the 1st Respondent on 21st July 2014 in Civil Suit 300 of 2014 be set aside. 2. Execution of the decree by sale to the 2nd Respondent of the 1st and 2nd applicants un mortgaged land comprised in Kiboga Block 29 Plot 790 be set aside. 3. Execution of the decree for un recovered decretal sum be stayed. 4. Leave be granted to the applicants to appear and defend the suit.
Briefly the background to the suit and application is that at the instance of the 1st Applicant, the 1st Respondent on 16th February 2012 offered him a loan of 80,000,000 Ugx secured by Mawokota Block 72 Plot 20 at Kambugu, Mpigi District.
The 2nd and 3rd Applicants were guarantors and duly executed and registered personal guarantees. When the 1st Applicant defaulted, the 1st Respondent filed a suit against all the three applicants and served them on the 11th June 2014.
On the 23rd June 2014, the Applicants had not filed any application to appear and defend so the 1st Respondent applied for a judgement in default which he obtained on 30th June 2014 and extracted a Decree on the 21st July.
The 1st Respondent then proceeded to attach land belonging to the judgment debtors 1st and 2ndApplicants which was sold to the 2nd Respondent.
For this application to succeed the applicants must most importantly show that they did not contest the suit because they were not notified of its existence and that if they had been duly notified, they would have resisted it.
Or where they were served with pleadings, they would succeed in this application if they showed to court that they were prevented by good cause from filing an application seeking leave to appear and defend within the 10 days provided in Order 33 Rule 3 of the Civil Procedure Rules.
I have perused the application and the affidavits of the 1st and 2nd Applicants. In none of these documents do the applicants give reasons for failure to respond to the suit. They do not deny being served.
Having been served, and choosing not to apply for leave to appear and defend, they sat on their rights and locked themselves out of the proceedings that led to the default judgment.
Since the applicants have given no reasons why they did not seek leave to appear and defend, the court finds this application devoid of merit and is hereby dismissed with costs.
Dated at Kampala this 18th day of August 2017.
…………………………………………
**David K. Wangutusi**
**JUDGE**