IN THE SUPREME COURT OF UGANDA
CORAM: TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA AND KATUREEBE JJ.S.C.
CIVIL APPEAL NO. 7 OF 2005
ANGELLA MARIA NAKIGONYA ::::::::::::::::::::::::APPELLANTS
(Appeal from decision of the Court of Appeal (Okello, Engwau & Byamugisha JJ.A) at Kampala in Civil Appeal No.57/04 dated 3rd November 2004).
JUDGMENT OF MULENGA JSC.
This appeal originates from a summary suit instituted in the High Court by William Kyobe, the above named respondent, in which he obtained a consent judgment against GMT Group, a business firm comprising three partners, namely Geoffrey Gatete and Angella Maria Nakigonya, the above named appellants, and one Matsiko Kasiimwe. The appellants applied to the trial court for orders inter alia to set aside the said judgment and for leave to appear in and defend the suit. The trial judge dismissed their application and the Court of Appeal also dismissed their appeal, hence this second appeal.
In the suit, the respondent sues for the sum of shs.17,000,000/- he allegedly loaned to the partnership firm and for profit which was payable in case of default, at the rate of shs.50,000/- per day. Under the loan agreement dated 5th February 2002, the loan was repayable on 30th March 2002. It was not paid on the due date. In an affidavit in support of the summary suit, the respondent averred that the defendant has no defence to the claim. The suit was filed in the High Court registry on 11th April 2002. On the following day, counsel for the plaintiff and Matsiko Kasiimwe for GMT group (defendant), signed a consent judgment for the sums claimed. The consent judgment was filed in court on 15th April 2002, and was formally entered and signed by the Deputy Registrar on 18th April 2002.
Apparently, the appellants first became aware of the judgment on 6th May 2002 when they were served with a Warrant of Attachment in execution of the decree, commanding the Court Bailiff to attach and sell moveable property of GMT Group, to realise the sums of shs.17,000,000/- on account of the principal, shs.1,150,000/- on account of accrued interest up to 19th April 2002, and shs.3,000,000/- on account of costs of the suit, together with further interest at the rate of shs.50,000/- per day, and costs of the execution.
The appellants immediately filed the application, praying that execution of the decree be stayed and/or set aside; that the decree be set aside; and that they be given leave to appear in and defend the suit on the grounds that –
service of summons was not effected on them;
2. the consent judgment was “executed” fraudulently;
3. Matsiko Kasiimwe did not enter into the loan agreement as co-partner.
The application is supported by two affidavits deponed by the appellants. Matsiko Kasiimwe swore and filed an affidavit in reply “to contradict what the two partners stated in their affidavits”. Later, the respondent also filed another affidavit in reply and the appellants filed affidavits in rejoinder.
Ogoola J., as he then was, heard the application on 11th July 2002 and dismissed it, holding that service of summons was duly effected, that Matsiko Kasiimwe had acted with ostensible authority and that the alleged fraud had not been proved. The Court of Appeal upheld the findings of the trial judge on all issues.
The grounds of appeal to this Court are that the Court of Appeal erred –
by unduly relying on the consent judgment and the affidavit of Matsiko Kasiimwe who was alleged to have acted fraudulently;
2. in failing to consider the said consent judgment and