THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 651 OF 2001
(Arising out of Suit No. 383 of 2001)
JOHN KIKAFUNDA ………………………………………………APPLICANT/DEFENDANT
BESIGYE MUGISHA ……………………………………………RESPONDENT/PLAINTIFF
BEFORE: HONOURABLE MR. JUSTICE JAMES OGOOLA
Defendant brought this application under 0.33, r 11 and 0.48, rr 1& 3 of the Civil Procedure Rules (CPR) seeking to set aside the default decree issued by this Court on 05/12/0 1 in HCCS No. 383/2001; and also seeking Court’s leave to defend. The Applicant adduced two major grounds for this application — namely: (i) a good defence (i.e. full payment of Plaintiff’s claim), and (ii) a defect in Plaintiff’s pleadings (i.e. a non-attested deed of assignment), which rendered Plaintiff’s suit incompetent.
From the outset, Court wishes to underline the point that to set aside a default judgment, is an exercise of the Court’s discretion. Under 0.33, r. 11, the Court may set aside a default judgment only if “it seems reasonable” to the Court to do so.
In this particular case, Court is of the firm view that given all the circumstances of the case, it is not at all reasonable to set aside the default decree.
This is so, in particular, given the fact that prior to the default judgment the Defendant was granted an opportunity to apply for leave to defend — and he simply ignored it. He was duly served with summons and the plaint, a fact which he himself expressly concedes. He was given 10 days to file an application for leave to defend. He ignored both the summons (refused to sign and acknowledge Court process); and he also ignored the prescribed time of 10 days within which to file his application. In circumstances such as these, the courts have held that a Defendant’s reasons, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion — see Evans v. Bartlam  AC 473, p.480.
In disregarding the Court’s process, as he did, Defendant knew exactly what the consequences of his conduct would be. This being a summary suit, default to apply for leave to defend, would automatically entitle the Plaintiff to a default decree under 0.33, r 3 of the Civil Procedure Rules. In this regard, the Courts have held that where a defendant has with full knowledge of the result refused to obey an order for production, and has willfully allowed judgment to go in default, the court will not interfere — see Haigh v. Haigh (1885) 31 ChD 478. In this connection, Court must never forget the policy underlying the summary procedure, namely to prevent delay in cases where there is no defence — see ROBERT GOFF L.J. in European Asian Bank AG v. Punjab and Sind Bank (No. 2)  1WLR642, p.654.
In any event, the statutory requirements under 0.33, r 11 for a court to set aside its earlier default judgment are twofold:
if Court is satisfied that the service of summons was not effective; or
for any other good cause.
In the present application, far from challenging Plaintiff’s averment of service, Defendant expressly concedes to have been duly and effectively served. Accordingly, the Defendant cannot have any recourse to the primary and pre-eminent ground (i.e. non-service of Court process) in these kinds of applications to set aside a default decree.
Therefore, Defendant is left only with the second and, in my view, subsidiary ground under 0.33, r 11 — namely, he must show that he has a “good cause”. In Acali Manzi v. Nile Bank 1994 KALR 123, TSEKOOKO, J (as his Lordship of the Supreme Court then was) stated that applications for leave to defend or to set aside a default decree passed in a summary suit, should attach a draft Written Statement of Defence (WSD) showing the good cause. The Applicant in this case has attached no such draft WSD to his application. Yet he is the same Applicant who now turns strict and zealous concerning observance of a technical point to the effect that Plaintiff’s deed of assignment was not properly witnessed — as the name of the witness was “not written in Latin characters”. I find no merit at all in this technical argument. The case authority, on which the Applicant relies, is distinguishable from the present case. In that case, General Parts (U) Ltd v NPART, the court was dealing with a land matter and specific provisions of the Registration of Titles Act which require formal attestation of documents. In the instant case, however, Applicant is challenging a deed of assignment. The Applicant’s learned counsel readily conceded to this point when he stated that “it is not disputed that the General Parts case (supra) was a land matter”. Nonetheless counsel contended that the principle in General Parts is applicable to the authenticity of all documents. I cannot agree. Authenticity of a document and attestation are two different concepts.
The legal requirements and consequences for one are not identical to the requirements for the other.
The primary consideration in exercising the Court’s discretion is whether the Defendant’s defence has merits to which the court should pay heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the Defendant has no defence — Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc, The Saudi Eagle  2 Lloyds Rep. 221, CA at 223.
In this regard, it is not sufficient to show a mere “arguable” defence that would justify leave to defend (or to set aside). It must have “a real prospect of success” and it must also “carry some degree of conviction”. Therefore, unless potentially credible affidavit evidence demonstrates a real likelihood that a Defendant will succeed on fact, no “real prospect of success” is shown and relief should be refused. In the instant application, Defendant has averred numerous versions of the one and same payment which, he allegedly made to settle Plaintiff’s claim. By one version, Defendant paid the amount of the claim through taxes. By another version he did so to INTRASHIP by way of clearance expenses and agency fees. And by yet another version, he paid the amount directly into Mr. Fjellman’s bank account. Clearly, these inconsistent versions do not enhance Defendant’s credibility nor do they carry any “degree of conviction”. Even more importantly, they do not assist court to reach a view that Defendant has demonstrated “a real likelihood that he will succeed”.
In light of all the above, I must decline to grant the application now sought. The costs of the application are awarded to the Respondent.
DELIVERED IN OPEN COURT, BEFORE:
Innocent Taremwa, Esq — Counsel for the Applicant/Defendant
Richard Mwebembezi, Esq — Counsel for the Respondent/Plaintiff
Mr. J.M. Egetu — Court Clerk