[2024] UGCommC 6

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# ICoMMERCIAL DMSIONI

MISCELLANEOUS APPLICATION NO. O87O OF 2023

#### (ARISING FROM CrVIL SUIT NO 4L2 OF 2O2Ll

ENTEBBE MUNICIPAL COUNCIL==== =========. IpPLICANT

#### VERSUS

BASIMA CONSULT LTD======================RESPONDENT

# Before Hon. Lady Justice Patricia Kahigi Asiimwe

#### Ruling

# Introduction

- 1. This Application was brought under Section 98 of Civil Procedure Act Cap 71, Section 33 of Judicature Act Cap 13, Order 9 Rule 12, and Order 52 Rules 1 & 3 of the Civil Procedure Rules seeking orders that: the delault judgment and decree entered in Civil Suit No. 412 of 2021 be set aside; the Applicant be gralted leave to file a written statement of defence out of time; suit be set down for hearing interparty and costs of the Application. - 2. Tlne Apptication was supported by an Affidavit deponed by Aisha Kitenda, the deputy town clerk of Entebbe Municipal Council who stated that: - a) Sometime in April 2023 the Applicant was informed in a letter from M/S Ssemwanga, Muwazi & Co. Advocates that judgment had been entered in Civil Suit No 472 of 2O2l and costs were taxed.

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- Judgement was entered against the Applicant to pay the $b)$ Respondent UGX 56,380,962, general damages of UGX 15,000,000, interest of $8\%$ . - She is the focal person tasked with Court cases of the $c)$ Applicant, and she was not aware of the suit. She consulted from their Office Registry, Assistant Town Clerks of Divisions A and B Entebbe Municipal Council, the Procurement Office, the Finance Office, the Town Clerks Office, and also the Mayor's Office and none of them had any knowledge about the suit. - She then consulted their lawyers, M/S Osilo & Co. $d$ Advocates as to whether they knew about the suit. - The lawyers checked their records and came across a $e)$ letter dated 11^th August 2021 from M/S Ssemwanga, Muwazi & Co Advocates informing them of a suit, and the need to renew summons but they had not attached a plaint as was stated in the letter. - The said lawyers had informed the Respondent's lawyers $f$ that the plaint was not attached to the letter. - The said lawyers also did a search at this Court's $g)$ Registry, and they discovered that the summons was stamped but the plaint was never stamped. - The letter requesting for default judgment and $h$ ) made therein, contained falsehoods submissions because the Respondent never at any time approached the Applicant or the Town Clerk.

- 3. The Respondent opposed the Application through an Affidavit in Reply deponed by Ddembe Shaffic, Managing Director of the Respondent Company. He stated that: - $a)$ The Applicant's Affidavit is fatally defective and shall at the time of hearing the Application, shall raise a preliminary objection. - The deponent of the Affidavit in Support is not the $b)$ Accounting Officer therefore not the focal person on Court matters thus, no authority to depone this affidavit. - $c)$ All proceedings between the parties were done with the knowledge of the Town Clerk and that service was done on the Town Clerk. - $d$ ) The Town Clerk directed them to serve their lawyers $M/S$ Osilo & Co Advocates at the 2^nd Floor Agip House Plot 9 Kampala Road, so they served the letter and the plaint on the said Advocates on $11^th$ August 2021. - On 7^th September 2021, Martin Nsubuga an advocate $e)$ with M/S Ssemwanga Muawazi & Co. Advocates, and the process server proceeded to $M/S$ Osilo & Co Advocates at 2^nd Floor Agip House Plot 9 Kampala Road and served a copy of the summons to file a defense and a photocopy of the Plaint who acknowledged receipt by stamping and signing the said documents. - $f$ The Applicant has never communicated with the Respondent any information about the pleadings in this matter.

Q

- The Applicant's lawyers received the said letter and also $g)$ acknowledged it and there is no way they could receive the letter without the accompanying pleadings. - The Applicant deliberately refused to file a defense and $h$ ) the Court gave judgment on 22^nd December 2022. - That this Honorable Court is functus officio and it $i$ cannot set aside this judgment by an application of this kind.

# Representation

4. The Applicant was represented by M/S Osilo & Co Advocates Plot 9 Kampala Road, and the Respondent was represented by M/S Ssemwanga Muwazi & Co. Advocates. Both parties filed written submissions.

# Issue

5. Whether there is sufficient ground to set aside the default judgment granted in Civil Suit No 412 of 2021

# Resolution:

# Preliminary Objections

- 6. The Respondent raised the following preliminary objections: - a) This court is functus officio - b) The Applicant used the wrong procedure to file the Application - c) The affidavit was deponed without authority.

1^st Preliminary objection: This court is functus officio


- 7. Counsel submitted that the default judgment was entered on 13th August 2022, and thc suit was set down for formal proof. The Respondent filed schcduling notes, witness statements, and a trial bundle, and the mattcr was fixed for hearing. The Respondent's witnesses testified and were cross-examined by the court. Therea-fter court madc judgment on 22"d December 2022 and lhe decree was issued on 3"r March 2023. Counsel submitted that this court is functus olllcio because the Court heard the matter and made its fina1 judgmenL on 22"d Decernber 2022. - 8. Counsel for the Rcspondent relied on the case of Goodman Agencies Ltd v Attorney General Constitutional Petition No. 3 of 2OO8 in which thc Court cited Magadeline Makinta v Fostina Nkwe, Court of Appcal No 26 of 2OO1 where the court also relied on Odneste Monanyana v The State Criminal Appeal No 9 of 2OO ¹ where Court held th.rt once a Court has duly pronounced a final judgment it has itscll r-ro authority to correct alter or supplement it because it becomcs lunctus officio. - The Black's Law Dictionary 11th Edition at page 815 defines functus officio as "having performed his or her ofhce without further authority or lcgal competence because the duties and functions of tl-rc original commission have been fully accomplished." 9 - 10. In the case of thc Stalc of Punjab Versus Davinder Pal Slngh Bhullar & Ors. Criminal Appeal No. 2258-2264 ol 2O11 the Supreme Court of India held that "Court becomes functus oflicio the moment the ordc:r lor disposing of a case is signed. Such an order cannot bc :rltcred except to the extent of correcting a clerical or arithmctir;ul crror." - 11. In the case of Re VGM Holdings Ltd 1941 (31 ALL. ER 417 it was held that oncc ai .judge makes an order, neither that judge

nor a judge of equal jurisdiction has jurisdiction to vary the terms of such order, it can only be varied by an appellate court.

- 12. In this case, the default judgment was entered and the suit was set for formal proof. The matter was heard and evidence was adduced. Lady Justice Jeanne Rwakakoko entered judgment for the Plaintiff on 22^nd December 2022. This was the final decision of the Judge. That decision cannot be set aside by this court as it is functus officio. This preliminary objection is therefore upheld. - 13. In view of the above court has not deemed it necessary to consider the other preliminary points of law as doing so would be moot. - 14. In conclusion the Application is hereby dismissed with costs to the Respondent.

# Dated this 12^th day of January 2024

Patricia Kahigi Asiimwe Judge Delivered on ECCMIS