[2025] UGHC 510

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT JINJA

# HCT-03-CV-MA-0328 - 2024

(ARISING FROM MISCELLANEOUS APPLICATION NO.313 OF 2024) (ARISING FROM HCT-03-CV-CS-072-2024)

$\mathsf{S}$

DR. CHARLES EKURE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. HENRY MWANJA :::::::::::::::::::::::::::::::::::

## **AND**

2. BANK OF BARODA :::::::::::::::::::::::::::::::::::: 15

## **BEFORE: HON. LADY JUSTICE JOANITA BUSHARA**

## **RULING**

By a Notice of Motion brought under Section 98 of the Civil Procedure Act, Cap 282, Section 14 of the Judicature Act, Cap 16 and Order 36 20 rule 11 and Order 52 rules 1 and 3 of the CPR SI 71-1 the applicant seeks for orders that:-

- 1. The exparte judgment and decree absolute garnisheeing the applicant's Bank account No. 95010100004126 in the $2^nd$ Respondent's bank in the sum of UgSh. $260,370,000/$ = entered against the applicant in Civil Suit No.072 of 2024 and Miscellaneous Application No. 313 of 2024 respectively be set aside. - 2. The applicant be granted unconditional leave to appear and defend the suit. - 3. The execution of the exparte decree be set aside. - 4. Costs of the application be provided for.

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The grounds upon which this Application are premised are that:-

1. There was no service of summons effected upon the applicant in Civil

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Suit No. O79 of 2024,

- 2. There was no contractual relationship between the applicant and the l"t respondent and the agreement based on the suit was a forgery. - 3. The applicant has a good and plausible defense to the suit. - 4. The applicant will suffer irreparable damage and gross injustice if the exparte judgment and decree are not set aside. - 5. It is in the interest of justice that the exparte judgment and decree be set aside, execution of the decree applicant be set aside and the applicant be allowed to defend the suit.

The above stated grounds are reiterated in the Affidavit in support of the Application deponed by Dr. Charles Ekure, the applicant, the gist of which are that :- 45

- He was sued by the l"t Respondent in Civil Suit No. O72 of 2o24 in the High Court of Uganda at Jinja. 1 - He was not aware of the existence of the above suit as the sarne was not served on him and summons issued by the court was never served on him, and as such, he didn't have notice of the said suit against him. 2 - He had also been made aware that the l"t Respondent further instituted Miscellaneous Application No. 313 of 2024, in which a garnishee order absolute was issued against him garnishing his bank account (account no 950 10100004 126 with the 2nd respondent bank attaching a sum of UGX ,370,000 l-3

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- 4 The said Application was also not served on him, although he had been made aware that the same was served on the 2"d respondent. - To his dismay and surprise, on Saturday, 2l"t December 2024, at L2:23 P. M, he received a notification from th.e 2"d respondent bank of a debit amounting to UGX 260,370,000 on his account. 60 5 - Upon further inquiry \ rith the Bank, he was informed that this transaction was allegedly in compliance with a court order, in Miscellaneous Application No. 313 of 2024, issued by the High Court of Uganda at Jinja directing the transfer of funds from his account to a purported claimant, the 1"t respondent. 6 - He neither made aware of the alleged court proceedings nor provided prior notification of any attachment or intended action on his account. 7 - Furthermore, upon visiting the 2"d respondent, he was shown documents, including a contract purportedly bearing his signature and a was garnishee order, which was based on the purported agreement which he never executed, and a forgery. 8 - To his disappointment, whereas the 2"d respondent with whom he had held an account for over 23 years, allegedly participated in the purported court proceedings, they did not at any one-time attempt to inform him of the proceedings in which they were participating that were targeting his bank account held with the 7s9 ⁸⁰ 2nd respondent. - 10. He was not notified by the bank of the garnishee s nisi or absolute before they garnisheed his bank acc

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- 11. This sequence of events raises serious concerns regarding the duty of care owed by the 2"d respondent to safeguard its customer's interests and maintain the confidentiality of its account information. - These events have caused him immense inconvenience, financial distress, and irreparable loss. t2. - He has a goodlplausible defense to the main suit, Civil Suit No. O72 of 2024, and if the exparte judgment and decree are set aside, he shall effectively and successfully defend the said suit. 13. - He has never obtained any services from the lst respondent in the sum claimed by him. 14. - He has a good defense to the suit and that given a chance will present the same in court. 15. - He will suffer irreparable damage and gross injustice if the exparte judgment and garnishee decree absolute are not set aside. 16. - This Application has been brought without delay. 17. - It is in the interest ofjustice and equity that this Application leave to appear and defend Civil Suit No. O72 is allowed so that the suit is heard and determined on its merits 18.

In reply, on behalf of the garnishee, Ahmed Sekumba deponed an affidavit, which briefly states that;-

- 1. The Garnishee is a Bank duly licenced to carry out banking business - 105 in Uganda and the Applicant was at all material times a ^Stomer of the Garnishee at the Garnishee's Main Branch w maintained current account No . 950 1010004 126.

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- 110 2. In the course of its business as a banker, on loth December, 2024 the Garnishee was serwed with a garnishee order nisi in Miscellaneous Application No. 313 of 2024, Henry Mwanja vs Ekure Charles issued by this Honourable Court attaching a sum of Ugx. 260,370,000/- on the Applicant/Defendant's said account and requiring the Garnishee to attend court on 2Oh December,2024. - 115

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- 3. Upon receipt of the said garnishee order nisi the Garnishee crosschecked ',\rith the Registry of this Honourable Court and verified that the said order was of this Honourable Court and verified that the said order was genuine. - 4. The Garnishee complied with the said order by placing a lien on the Applicant's said account to the extent of the said attached sum and on 2Oh December, 2024 attended court through its Jinja Branch Chief Accountant, Mr. Kajura Allan who presented to court a bank statement on the said account. 1,20 - 5. At the time of the said appearance in court, the Garnishee had no knowledge that the suit from which the said garnishee order nisi arose had proceeded exparte against the Applicant & in further reply to paragraph 6 of the said affidavit, subsequently, on the s€une date of the said court appearance, that is, 2Oh December, 2024 the Garnishee was served with a garnishee order absolute requiring Garnishee to pay a sum of Ugx. 260,370,000/- from the applucarltf defendant's said account to the Judgment Credi by way ccount No. ¹³⁵ of transfer of the said sum to the Judgment Creditor'

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95010100027595 in the narne of Nabaasa Alex, counsel for the Judgment Creditor, a.n account held in the Garnishee Bank.

- 6. Upon receipt of the said garnishee order absolute the Garnishee again verified from the registry of this court that the said order was genuine. - I45 o ⁷. In the process of complying with the garnishee order absolute and in compliance with the Garnishee's operational processes, on 2l't December, 2024 at l2:23prn the garnishee sent an sms to the applicant/defendant through his mobile telephone number 0772685314 notifying him of the debit of the said sum from his account. - 8. The applicant further avers that;

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a) Immediately after transferring the said attached sum to the account Nabaasa Alex in compliance with the garnishee order absolute, the Garnishee received a complaint from the Applicant/Defendant that he had not mandated the debit of the said sum from his account and on being informed by the Garnishee that the complaint from the Applicant/Defendant that he had not mandated the debit of the said sum from his account and on being informed by the Garnishee that the said debit was premised on the garnishee order absolute arising under the court proceedings in High Court Civil Suit No. O72 of 2o24 at Jinja, the Applicant lDefendant, denied proceedings. knowledge of e said

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- upon receipt of the said complaint the Garnishee suspected the $\mathbf{b}$ bonafides of the process leading up to the attachment of the Applicant's account and accordingly blocked Nabasa Alex's said account. - the Garnishee lodged a complaint at the police against Nabaasa $\mathbf{c}$ Alex for suspected fraud and also reported the matter to the Financial Intelligence Authority in accordance with the Anti Money Laundering Regulations. - On 21^st December, 2024 at around 12 pm Nabasa Alex was $d$ arrested by police when he appeared at the Garnishee's Kampala Main Branch to withdraw money from his said account. - The said sum that was transferred by the Garnishee from the $e)$ Applicant's account pursuant to the garnishee order absolute is still held on Nabaasa Alex's said account with the Garnishee. - 9. That the Garnishee is ready to restore the said sum back to the said account in the event that this Applicant/Defendant's Honourable Court is pleased to set aside the said garnishee order absolute.

In a further supplementary affidavit, the applicant's gist was that

- The plaintiff in HCCS No 72 of 2024, who is the 1^st respondent in 1. this Application applied for and obtained a garnishee order *nisi* from this court on the 9^th December 2024 - The 1^st respondent further obtained a garnishee absolute on the $2.$ $20^th$ day of December 2024. - That all this was done without serving summons on him in the 3. main suit or notifying him of any of these proceedings.

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- 4 He learned about these proceedings when he received ^a notification from his bank the 2"d respondent that a sum of UGX 260,370,000/= had been removed from his account and transferred to €rn account held by a one Nabasa AIex on the 2 1"t day of December 2024. - 5 He instantly went to my bank and raised a complaint, whereof the money was frozen on the account of the said Nabasa Alex where it is currently. - 6 He instructed his lawyers, Nabasa & Co. Advocates to file the instant Application to have the said decree and Garnishee order absolute set aside. - 7 Through his lawyers, he wrote to the Financial Intelligence Authority, Bank of Uganda the supenrising Authorities of the 2"d respondent complaining about how the case and the debt from account was done without my notice. - B Through his said lawyers, he also lodged a criminal case against the l"t respondent and his purported advocate at Jinja Road Police Station vid Case Ref. CRB O34/2024 of Jinja Road Police Station, where investigations have been conducted on how the said transaction, the purported contract and the debt against his account was conducted.

9 A police investigation report in the said criminal case has been made, which reveals fraud in how the entire transaction was handled, since he did not know, and neither had he ever entered into the purported contract with the 1st respondent.

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o 10. Through his lawyers, and through the Financial Intelligence Authority, the said (Civil Suit No. O72 of 2o.24 and Misc. Application No. 313 of 2ol24l-was called by the inspectorate of courts for investigation on how the said case was handled, and investigations were conducted by the inspectorate of courts, and a report was made to this effect.

#### Background

- o 225 230 According to the applicant, the facts leading to this application were as follows; He was sued by the 1"t respondent in Civil Suit No. O72 of 2o.24 before this Court. A default judgment was entered against him for nonappearance, resu.lting in the issuance of a Garnishee Order lVisl and ^a Garnishee Order Absolute. He only became aware of the Garnishee order when he received communication from the 2"d respondent, on 2 l"t December 2024 informing him that a sum of Ugx.26O.37O.000/= had been withdrawn from his account and transferred to a.n account in the name of one Nabasa Alex. The applicant immediately lodged a complaint, leading to the freezing of the said funds pending the outcome of this application. - On the part of the 2"d Respondent/ Garnishee, they state that on 21"t Decemb er 2024 they were senred with a Garnishee Order in HCCS No. O72 of 2Ql24 between the respondent/plaintiff and the applicant/defenda::t, for the attachment of the applicant's account No. 9501010004126 with the Garnishee, in the sum of Ugx ²⁶ ,370,0OO lz4o account of from the applicant's account and credited the sarne on Nabaasa AIex. 235 o

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They immediately notified the applicant by way of an sms alert. The applicant denied knowledge of the said suit whereupon the Garnishee blocked Nabaasa Alex's said account. They went ahead to lodge a criminal complaint at the police against Nabaasa Alex and reported the matter to the Financial Intelligence Authority.

On the same day the said Nabaasa Alex was arrested by the police at the Garnishee's Kampala Main Branch where he appeared to withdraw money from his said account.

# o zso Representation

The applicant was represented by learned Counsel Nabaasa Pheona Wall of M/s Nabaasa & Co. Advocates. The l"t was not in Court nor was he represented. The 2"d Respondent/ Garnishee was also not represented although on record it is indicated that they are represented by M I S H & G Advocates which (formerly Kateera & Kagumire Advocates).

At the hearing of this Application, the parties were advised to file written submissions, which all parties complied with exception of the 1"t respondent . I have had the benefit of reading those that have been filed and have considered in the determination of this application.

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#### 260 E\vidence and submissions

The Applicant led evidence by way of an affidavit in support deponed by him, and a supplementaqr affidavit. The 2"d Respondent/ Garnishee also led evidence by way of an affidavit in reply deponed by Ahmed ba, their Manager Legal. The 1't Respondent never filed an affidavit reply to ²⁶⁵ the application nor was he represented in the application.

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The Applicant and 2"d Respondent with directions of Court made written submissions in support of their respective cases, which I appreciate and have considered before arriving at my decision.

#### Decision

- 27o In the applicants filed their submissions on 9th May 2025 and framed two issues for determination; whether this application discloses sufficient cause to warrant the setting aside of the default judgment and decree and whether the application discloses triable issues that merit the grant of leave to appear and defend. - o1ts Order 36 rule 11 of the CPR (as amended) provides for conditions to be determined by the court before an Application for setting aside a Default Judgment.

For such an application to succeed, Court must satisfy itself that either service of Summons was not effective or the applicant must show any 280 other good cause that prevented them from applying for leave to appear and defend the main suit. See Lydia Naiga Vs Ask Services Limited HCMA 482120120., Attorney General Vs Wazuri Medicare Limited O HCMA 28312o.23.

The applicant presented his reason for setting aside of the default 28s judgement in the main suit, being non service of the summons and that this was the reason why he failed to appear and defend the main suit.

I have examined the record for the main suit from which this A arose and note that there is an affidavit of service a one Tayebwa Peter a process server of M/s GM Kibirige & . Advocates,

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2so claiming that on 13th November 2024 he served the applicant at Nakumatt Kampala, who accepted service by signing and dating the copy of the summons. This is not a Court Process Senrer but one attached to the law firm representing the plaintiff.

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The Applicant denied ever being served with the summons and neither did 2ss he have any knowledge of this matter. His averments are not contested, since the l"t Respondent who was the plaintiff in the main suit and on whose behalf the summons were being senzed did not Iile an affidavit in rebuttal. In the case of Samwiri Massa Vs Rose Achen 1978 HCB 297, O court held that where facts are sworn to in an affidavit and they are not 3oo denied or rebutted by the opposite party, the presumption is that the facts are accepted.

This service which was false was also questioned by the Chief Inspector of Courts in his report dated 19th March 2025 to the Principal Judge, following an investigation instigated by the applicant, where he stated that 3os the then Assistant Registrar in handling the matter did not carry out due diligence to find out whether the service of summons were effected upon the applicant especially where they were not effected by a court process O server. In my view this further confirms the averment that the applicant was never senred.

³¹⁰ The applicant contends that he only learned about the proceedings in Civil Suit No.072 0f 2024 and the garnishee application Miscellaneous Application No.313 of 2024 when he received a notification from the 2"d respondent bank that a sum of Ugx.26O,37O,000/= had b removed

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from his account and transferred to an account held by a one Nabaasa AIex on the 21"t day of December,2O24.

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In the case of Khanti Dhanji as Lube Enterprtses Ltd [19931 M<ALR 54, tlne court emphasized that a judgment obtained without proper service is a nullity.

320 It's the applicant's contention that he has demonstrated good cause to set aside the default judgement within the meaning of order 36 rule 1 1 of the Civil Procedure Rules.

It is trite that 'good cause' includes not only plausible explanation for failure to enter appearance or file a defence but also a defence that raises triable issues worthy ofjudicial consideration.

- I have also addressed the pertinent questions to be considered; whether the Defendant has no defence to the Summary Suit and if there is an alleged defence whether it is plainly misconceived or is it an arguable ground of defence? The applicant denies entering any contractual arrangement with the lst Respondent and contends that the whole suit was a mere sinister fabrication and deliberate and fraudulent attempt by the l"t Respondent and his purported lawyer to defraud the applicant by obtaining a Garnishee order to wipe a large sum of money off his bank account. Order 36 rule 8 empowers the Court to grant leave to defend where the defendant demonstrates a triable issue which calls for a fuIl 325 330 o - trial. In Post Bank (Ul Ltd Vs Abdu Ssozi Civil Appeal No. 8 of 2o15, it was held that. . . . when the court receiue their application and is SA by ne triable 335 the defendant's affidauit that the defendant has raised a

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a.nd not a sham or friuolous issue, it will grant the defendant leaue to appear and defend the suit.

340 The position of the law is that whenever a genuine defence, either in fact or law, sufficiently appears, the defendant is entitled to unconditional leave to defend. The defendant is not required to show a good defence on the merits; but where the Court is satisfied that there is an issue or question in dispute which ought to be tried, it should grant leave to defend. The defence should be bona fide and stated with sufficient particularity, as appear to be genuine. These principles are spelt out in o Odsers' Principles of Pleadins and Practice in Actions in the 345 Hieh Court of Justice 22"d Edition at 75 and 76, and expounded upon in numerous decided cases, but suffice it to cite the case of Maluku

## 3so Interglobal Agencg Ltd. as Bank of Uganda [79851 HCB 65.

I am convinced that it is in the interest of substantive justice that the Judgment in default entered vide Civil Suit No.72 of 2024, together with the Garnishee absolute arising therefrom both be set aside. The applicant/ defendant is given an opportunity to file his Defence out of time 3ss so that he is given an opportunity to be heard so that a multiplicity of O proceedings is avoided and the matter can be decided upon once and for all. It is also my finding in this application is that was brought in good faith.

For all the reasons given in this Ruling, I have found that the applicant's Application raises triable issues of fact and it is accordingly allowed.

Finally, it is now well established law that costs generally the event. See Francis Butagira as. Deborah Mukasa Ciull I .l\[o. 6

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of 7989 (SC) and Uganda Deuelopment Bank us. Muganga Constrttction Compang (1981) HCB 35. Indeed, in the case of Sutherlattd us. Co;no;da (Attorneg @neral) 2OOB BCCA 27, it was held that courts should not depart from this rule except in special circumstances, as a successful litigant has a 'reasonable expectation' of obtaining €rn order for costs. In the instant case, the Applicant's Application has merit and award them costs accordingly.

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#### Conclusion

Having held as I have above, I make the following orders:

- 375 1. The default Judgment/ Decree in HCCS 72 of 2025 is hereby set aside. - 2. The Garnishee Order Nisi and Absolute issued against the applicant's bank account is hereby set aside. - 3. The sum of money previously garnished from the applicant's account in the 2"d respondent bank pursuant to the said garnishee proceedings shall be refunded to the applicant forthwith pending the hearing and determination of the main suit. - 4. The applicant is granted unconditional leave to appear and defend within 14 days from the date of this Ruling. - 5. Costs be awarded to the applicant.

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I so order

### Da at Jinja this 24th. day of June 2025

JOANITA BUSIIARA 390 JUDGE

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