Twiga Chemical Industries v Viola Bamusedde (T/A Triple B. Enterprises) (Civil Appeal 16 of 2004) [2005] UGSC 11 (27 June 2005)

# Twiga Chemical Industries v Viola Bamusedde (T/A Triple B. Enterprises) (Civil Appeal 16 of 2004) [2005] UGSC 11 (27 June 2005) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Twiga+Chemical+Industries+v+Viola+Bamusedde+%28T%2FA+Triple+B.+Enterprises%29+%28Civil+Appeal+16+of+2004%29+%5B2005%5D+UGSC+11+%2827+June+2005%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2005%2F11%2Feng%402005-06-27) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Twiga+Chemical+Industries+v+Viola+Bamusedde+%28T%2FA+Triple+B.+Enterprises%29+%28Civil+Appeal+16+of+2004%29+%5B2005%5D+UGSC+11+%2827+June+2005%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2005%2F11%2Feng%402005-06-27) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Twiga%20Chemical%20Industries%20v%20Viola%20Bamusedde%20\(T/A%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27) __Save [ Download RTF (100.1 KB) ](/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (100.1 KB) ](/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2005/11/eng@2005-06-27/source.pdf) * * * * * Report a problem __ ##### Twiga Chemical Industries v Viola Bamusedde (T/A Triple B. Enterprises) (Civil Appeal 16 of 2004) [2005] UGSC 11 (27 June 2005) Copy citation __Save * __Document detail * __Related documents 1 * __Citations \- / 2 Citation Twiga Chemical Industries v Viola Bamusedde (T/A Triple B. Enterprises) (Civil Appeal 16 of 2004) [2005] UGSC 11 (27 June 2005) Copy Media Neutral Citation [2005] UGSC 11 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Civil Appeal 16 of 2004 Judgment date 27 June 2005 Language English ##### __Related documents * Upholds [Twiga Chemical Industries Ltd v Viola Bamusedde t/a Triple B. Enterprises (Civil Appeal No. 9 of 2002) [2004] UGCA 10 (22 March 2004)](/en/akn/ug/judgment/ugca/2004/10) Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **AT MENGO** _**(CORAM:**__****__**ODOKI,**__****__**C.J.,**__****__**ODER,**__****__**KAROKORA,**__****__**MULENGA, KANYEIHAMBA,**__****__**JJ.S.C.)**_ **CIVIL APPEAL NO. 16 OF 2004** **BETWEEN** **TWIGA CHEMICAL INDUSTRIES ::::::::::::::::::::::::::: APPELLANT** **AND** **VIOLA BAMUSEDDE (T/A Triple B. Ent** _**e**_**rpris** _**e**_**s)::::: RESPONDENT** _[Appeal_ ___from_ ___the_ ___judgment_ ___and_ ___orders_ ___of_ ___the_ ___Court_ ___of_ ___Appeal (Mukasa-Kikonyogo,____D.C.J.,____Kitumba_ ___and_ ___Byamugisha,____JJ.A.)____in Civil_ ___Appeal_ ___No.____9_ ___of_ ___2002,____dated_ ___3_ _rd_ ___March,____2004]._ **_JUDGMENT OF KANYEIHAMBA. J.S.C_** This is a second appeal from the Court of Appeal which dismissed the appellant's appeal. The facts of the case may be summarized as follows: On 11th May, 2000, the appellant filed a suit under the provisions of Order 33 of the Civil Procedure Rules against the defendant for the recovery of Shs. 15, 420, 000 and costs of the suit. Apparently, the claim was founded on some contractual arrangements under which the appellant had sold to the respondent, various chemicals for which the respondent made part payment leaving a balance of Shs. 15,420,000 unpaid. The appellant claims that that balance was subsequently acknowledged by the respondent as owed in two letters dated the 18th March and 19th June of 1999, which letters were attached to the plaint in the High Court as annextures. On 3rd, November, 2000, the respondent filed a written statement of defence in which she denied any indebtedness to the appellant in the sum claimed or any other. However, she herself counterclaimed the sum of Shs. 4,800,000 for distribution services she had rendered to the appellant. She further claimed expenses incurred for collecting debts for the appellant in the sum of Shs. 2,967,000. The appellant did not file any reply to the averments contained in the written statement of defence and the counterclaim. The parties first appeared in court on 8/12/2000. On that day, court gave the appellant leave to file a reply to the counterclaim out of time and the case was fixed for mention on the 12/03/2001, that date turned out to be an unscheduled public holiday in that it was the date on which Presidential elections were held in Uganda. In the meantime, the appellant did not file any reply to the counterclaim. When the matter came before court again on the 12/06/2001, the respondent's counsel attended but the appellant did not appear by counsel or other representatives. On submissions by the respondent's counsel, the appellant's suit was dismissed. Judgment on the counterclaim was entered against the appellant in the sum of Shs. 4,800,000 as a liquidated sum with interest at the rate of 20% from July 1996 till payment in full. The respondent was awarded the costs of both the suit and the counter-claim. On the 13 , November, 2001, the appellant filed an application by way of Notice of Motion seeking to set aside the court's order dismissing the suit, stay of execution and setting aside the decree that had been entered in favour of the respondent on the counterclaim. The main ground advanced in support of the application was that the appellant was not aware of the hearing date because it had not been served with any hearing notice. The application was dismissed and the appellant appealed to the Court of Appeal which dismissed it with costs to the respondent. Hence this appeal. The Memorandum of Appeal to this court contains nine grounds framed as follows: 1. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to largely_ ___base_ ___their_ ___decisions_ ___on_ ___a_ ___different_ ___ground_ ___from_ ___that_ ___relied on_ ___by_ ___the_ ___trial_ ___judge._ 2. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to find_ ___and_ ___hold_ ___that_ ___the_ ___appellant_ ___was_ ___aware_ ___of_ ___the_ ___hearing_ ___date_ ___of 28_ _th_ ___June,____2001._ 3. _By_ ___holding_ ___that_ ___the_ ___learned_ ___trial_ ___judge_ ___exercised_ ___his_ ___discretion judiciously_ ___and_ ___thus_ ___declined_ ___to_ ___interfere_ ___with_ ___the_ ___same,____the_ ___learned Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact._ 4. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact by_ ___holding_ ___that_ ___the_ ___respondent's_ ___counterclaim_ ___was_ ___both_ ___a pecuniary_ ___and_ ___a_ ___liquidated_ ___one._ 5. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to hold_ ___that_ ___the_ ___learned_ ___trial_ ___judge_ ___acted_ ___within_ ___the_ ___law_ ___to_ ___enter judgment_ ___on_ ___the_ ___counterclaim._ 6. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___when_ ___they failed_ ___to_ ___decide_ ___if_ ___the_ ___court_ ___can_ ___move_ ___itself_ ___to_ ___enter_ ___summary judgment_ ___on_ ___a_ ___counterclaim._ 7. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to hold_ ___that_ ___a_ ___telephone_ ___call_ ___constitutes_ ___service_ ___in_ ___law._ 8. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to find_ ___and_ ___hold_ ___that_ ___the_ ___appellant's_ ___lawyer_ ___participated_ ___in_ ___the_ ___taxation._ 9. _The_ ___learned_ ___Justices_ ___of_ ___the_ ___Court_ ___of_ ___Appeal_ ___erred_ ___in_ ___law_ ___and_ ___fact_ ___to hold_ ___that_ ___a_ ___defendant_ ___has_ ___no_ ___burden_ ___to_ ___prove_ ___that_ ___a_ ___plaintiff_ ___who_ ___is absent_ ___when_ ___the_ ___suit_ ___is_ ___called_ ___for_ ___hearing_ ___was_ ___served_ ___with_ ___a hearing_ ___notice._ Mr. Mutaawe subsequently argued all the grounds in the memorandum of Appeal together. He contended that the learned Justices of Appeal failed in their duty to rehear the case as is expected of them under S.12 (1) of the Judicature Act and Rule 29 (1) of the Rules of the Court of Appeal. He further contended that in failing to reappraise the facts and reevaluate the evidence as a whole, the learned Justices of Appeal's decisions were erroneous in both law and fact and constitute a miscarriage of justice. Mr. Mutaawe submitted further that had the learned Justices of Appeal reevaluated the evidence, they would have been satisfied that the learned trial judge had erred in failing to appreciate that no hearing notice existed and therefore could not be served and was not served on the appellant by the time the case came to be heard by the trial judge. Counsel criticized the Court of Appeal for basing its judgment mainly on the delays and lack of diligence attributed to the appellant or her counsel. He contended that in civil trials there are well known and established rules of procedure which must be adhered to and followed and service by telephone is not one of them. He contended that therefore, the appellant could not appear since he was not served at all. Counsel for the appellant contended further that both the trial court and the Court of Appeal ignored binding authorities of the Supreme Court decision and in so doing, they erred both in law and fact. Finally, counsel contended that the fact that counsel for the appellant may have attended the meeting for taxation of costs would not, in any way, validate the errors committed during the trial proceedings. Counsel cited: **The Evid** _**e**_**nc** _**e**_ _****_**Act, Cap 6, Banco Arab** _**e**_ _****_**[Espanol Vs. Bank of Uganda, SCC A. No. 8 of 1998](/akn/ug/judgment/ugsc/1999/24) and Ord** _**e**_**rs 9 and 45 Rul** _**e**_ _****_**of th** _**e**_ _****_**Civil Proc** _**e**_**dur** _**e**_ _****_**Rul** _**e**_**s;** in support of his submissions. For the respondent, Mr. Oponyo opposed the appeal and also argued the grounds together. In his view, the Court of Appeal correctly and independently reevaluated the evidence and reheard the case afresh. He contended that it was clear that the learned Justices of Appeal rightly and diligently performed their duty properly and in accordance with the provisions of the Judicature Act and the Rules of Court. Counsel for the respondent submitted further that the reasons given by the Court of Appeal when confirming the judgment and the decisions of the trial judge cannot be faulted because they are sound in both law and fact. Submitting on the counterclaim, Mr. Oponyo contended that in law, it is not necessary to fix a different date for hearing a counterclaim which is heard at the same time as the plaintiff's plaint which is always the main cause for fixing a hearing date in the first instance. He contended further that the purpose of serving a hearing notice is solely to inform parties of the fact that their case will be heard on a named date and such knowledge can equally be transmitted through a telephone conversation. He submitted that the attendance of the taxation of costs meeting by the respondent's counsel is proof enough of the fact that they were aware that the case had been heard and finalized. Finally, Mr. Oponyo contended that there is no obligation on a respondent in a civil case to notify the plaintiff of the hearing date. Counsel cited provisions of O**rd** _**e**_**rs 4(3) and 19(4) of Civil Proc** _**e**_**dure Rules** in support of his submissions. In my view, this appeal raises two main issues to be resolved by the Court. The first is whether the Court of Appeal erred in confirming the _ex parte_ __ High Court judgment. The second is whether that Court was incorrect in its decision to uphold the learned trial judge's decision refusing the appellant's application to set aside the ex _parte_ __ judgment and orders notwithstanding the reasons given in support thereof. I will deal with the second issue first which I regard as one of procedure and discretion. The respondent who was then the defendant having denied liability of the claims contained in the appellant's plaint, the plaintiff which is now the appellant did not file a reply to the averments contained in the written statement of defence, nor did it reply to the averments contained in the counterclaim. The case was to have been heard on the 12.06.2001 which turned out to be a public holiday. The case was subsequently fixed for 28.6.01. On that day, the appellant and its counsel were absent and as a result, the court dismissed the claim on the plaint and gave judgment on the counterclaim in favour of the defendant who is now the respondent. It is clear that the trial court was satisfied that the appellant had failed to prosecute the claim or defend the counterclaim. In my opinion, on the evidence before the court, the learned trial judge acted correctly and in accordance with the law. On the 13th November, 2001 nearly five months later, the appellant filed an application by way of Notice of Motion, seeking an order to set aside the judgment, orders and decree of the High Court as well as to grant stay of execution of the judgment of the trial court and set aside the judgment in the counterclaim in favour of the respondent. The main ground advanced in support of the application was that the appellant was not aware of the hearing date as no hearing notice was served on it. As already noted, both the trial court and the Justices of Appeal dismissed these reasons as being insufficient to enable them allow the appellant's prayers. Mr. Mutaawe's contention that the court below failed to appraise material facts in this case is unjustified. In his ruling on the application by the appellant to set aside, the learned trial judge said, _"The_ ___argument_ ___for_ ___this is_ ___that_ ___there_ ___is_ ___no_ ___proof_ ___that_ ___the_ ___plaintiff_ ___had_ ___been_ ___served_ ___and_ ___made aware_ ___of_ ___the_ ___hearing_ ___during_ ___which_ ___the_ ___suit_ ___was_ ___dismissed_ ___and_ ___a_ ___decree entered_ ___on_ ___the_ ___counterclaim.____First,____I_ ___want_ ___to_ ___point_ ___out_ ___that_ ___as_ ___it_ ___is_ ___the practice,____the_ ___advocate_ ___for_ ___the_ ___plaintiff_ ___did_ ___indicate_ ___that_ ___they_ ___would undertake_ ___to_ ___effect_ ___service_ ___of_ ___process_ ___on_ ___the_ ___defendants.____In_ ___this_ ___case, the_ ___summary_ ___plaint_ ___in_ ___paragraph_ ___2_ ___is_ ___quite_ ___explicit.____It_ ___state;____'The defendant_ ___is_ ___an_ ___adult_ ___female_ ___person_ ___of_ ___sound_ ___mind_ ___and_ ___trading_ ___as Tripple_ ___B.____Enterprises_ ___and_ ___the_ ___plaintiff's_ ___advocates_ ___undertake_ ___to_ ___effect service_ ___of_ ___court_ ___process_ ___upon_ ___the_ ___defendant'.____I_ ___think_ ___that_ ___the_ ___rule_ ___that parties_ ___are_ ___bound_ ___by_ ___their_ ___pleadings_ ___has_ ___remained_ ___the_ ___same_ ___and_ ___that_ ___in view_ ___of_ ___this_ ___pleading,____it_ ___is_ ___not_ ___correct_ ___that_ ___a_ ___defendant_ ___who_ ___has_ ___appeared in_ ___court_ ___should_ ___be_ ___the_ ___one_ ___to_ ___prove_ ___that_ ___he_ ___was_ ___served_ ___with_ ___court process."_ In my opinion, the learned trial judge was correct since no reasonable justification was advanced on behalf of the appellant for its absence or that of its counsel. In the case of **D** _**e**_**part** _**e**_**d Asians Pr** _**o**_**p** _**e**_**rty Cust** _**o**_**dian B** _**o**_**ard v. Issa Buk** _**e**_**nya,** CA No. 18/91, (S.C), (unreported) it was held that an application to set aside an ex _parte_ __ judgment cannot succeed if no good or substantial reasons are given to justify setting it aside. This is in conformity with **Order 9 rul** _**e**_**s 20 and 24 of th** _**e**_ _****_**Civil Pr** _**o**_**c** _**e**_**dur** _**e**_ _****_**Rul** _**e**_**s.** Rule 20(1) governs applications by plaintiffs who wish to have suits which are already disposed of revisited again. The subrule provides as follows: _"Where_ ___a_ ___suit_ ___is_ ___wholly_ ___or_ ___partly_ ___dismissed_ ___under_ ___rule_ ___19_ ___of_ ___this Order,____the_ ___plaintiff_ ___shall_ ___be_ ___precluded_ ___from_ ___bringing_ ___a_ ___fresh_ ___suit_ ___in respect_ ___of_ ___the_ ___same_ ___cause_ ___of_ ___action.____But_ ___he_ ___may_ ___apply_ ___for_ ___an_ ___order to_ ___set_ ___aside_ ___and,____if_ ___he_ ___satisfies_ ___the_ ___court_ ___that_ ___there_ ___were_ ___sufficient cause_ ___for_ ___non-appearance_ ___when_ ___the_ ___suit_ ___was_ ___called_ ___for_ ___hearing,____the court_ ___shall_ ___make_ ___an_ ___order_ ___setting_ ___aside_ ___the_ ___dismissal_ ___upon_ ___such terms_ __ as to _costs_ ___or_ ___otherwise_ ___as_ ___it_ ___thinks_ ___fit_ ___and_ ___shall_ ___appoint_ ___a_ _day_ ___for_ ___proceeding_ ___with_ ___the_ ___suit."_ In the Court of Appeal, Byamugisha JA. who gave the lead judgment of that court agreed with the findings and of reasons given by the trial court for refusing to set aside the judgment and her fellow Justices on the panel concurred. I agree with them. Since the appellant failed to defend the counterclaim and to appear at the trial the courts below were amply justified in dismissing it. It is to be noted also that counsel for the appellant participated in the taxation proceedings in the High Court which implied knowledge of what had occurred before. In the Court of Appeal, the learned Justice who gave the lead judgment stated the law accurately when she observed; _"When_ ___the_ ___trial_ ___judge_ ___discussed_ ___(sic.)____the_ ___application,____he_ ___was_ ___exercising his_ ___discretion.____It_ ___is_ ___well_ ___settled_ ___that_ ___an_ ___appellate_ ___court_ ___will_ ___not_ ___interfere with_ ___the_ ___exercise_ ___of_ ___discretion_ ___unless_ ___there_ ___has_ ___been_ ___a_ ___failure_ ___to_ ___take_ ___into account_ ___a_ ___material_ ___consideration_ ___or_ ___taking_ ___into_ ___account_ ___an_ ___immaterial consideration_ ___or_ ___an_ ___error_ ___in_ ___principle_ ___was_ ___made."___ Her judgment cannot be faulted. Accordingly, I would dismiss grounds 1, 2 and 3 of this appeal. On the matter of the counterclaim, counsel for the appellant submitted that the courts below were wrong to allow it since the amounts of money claimed were unascertainable. He contended further that the respondent's claim was for pecuniary damages which were not liquidated damages and therefore the counterclaim should have been set down for hearing. For the respondent, Mr. Oponyo contended that the counterclaim which was in the sum of Shs. 4,800,000 was a liquidated sum which was contained in paragraph 5 of the counterclaim. He further contended that as there was no reply to this averment. The High Court was correct to award it ex _parte_ __ as liquidated damages. Counsel submitted correctly in my view, that the respondents' prayer for general damages and other sums of money was not favourably considered by the lower courts neither of which awarded those damages or sums of money in this regard. The Court of Appeal confirmed the decision of the trial court to enter judgment in the counterclaim and I agree with the learned Justices of Appeal. In my opinion, there is no merit in the grounds of this appeal challenging the judgment of the trial court in as much as they deal with the counterclaim. I would therefore dismiss grounds 4, 5 and 6 of this appeal. In light of my decisions on grounds 4,5 and 6, I do not think it is necessary to consider grounds 7, 8 and 9. All in all, I would dismiss this appeal with costs to the respondents in this court and in the courts below and I would confirm the orders made in both the Court of Appeal and the High Court. **JUDGMENT OF ODOKI, CJ:** I have had the advantage of reading in draft the judgment prepared by my learned brother, Kanyeihamba, JSC, and I agree with him that this appeal should be dismissed with costs in this Court and the Courts below. As the other members of the Court also agree, this appeal is dismissed with costs to the respondent in this Court and the Courts below. , **JUDGEMENT OF ODER, JJSC** I have had the benefit of reading in draft the judgment of my learned brother: Kanyeihamba, JSC, and I agree with him that the appeal should be dismissed with costs to the respondent in this Court and in the Courts below. I would confirm the orders made by the High Court and by the Court of Appeal. **JUDGMENT OF KAROKORA, JSC:** I have had the benefit of reading in draft the judgment prepared by my learned brother, Kanyeihamba, JSC, and I agree with him that this appeal should be dismissed with costs here and in the courts below. **JUDGMENT OF MULENGA, JSC** I have had the benefit of reading in draft the judgment prepared by my learned brother, Kanyeihamba, JSC, and I agree that this appeal should be dismissed with costs here and in the courts below. _**Dated at Mengo this 27th**_ _**day**_ _**of June 2005.**_ #### __Related documents #### Upholds 1. [Twiga Chemical Industries Ltd v Viola Bamusedde t/a Triple B. Enterprises (Civil Appeal No. 9 of 2002) [2004] UGCA 10 (22 March 2004)](/en/akn/ug/judgment/ugca/2004/10) #### More documents like this one ▲ To the top >