[2025] UGCommC 139

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL ON) MISCELLANEOUS APPLICATION NO. 1802 OF 2024 (ARISING FROM EMA No.398 OF 2024, TAXATION APPLICATION NO. 034 OF 2024 and** 10 **CIVIL SUIT No. 1145 OF 2024)**

#### **JAMES MWANGUSYA DRIERS ] APPLICANT**

# **CENTENARY RURAL DEVELOPMENT BANK LTD ] RESPONDENT**

**Before: Hon. Justice Ocaya Thomas O. R**

### 20 **RULING**

**VERSUS**

### **Introduction:**

This application was brought by way of Notice of Motion Section 98 of the Civil Procedure Act, Order 36 Rule 11; Order 51 Rule 6 and Order 52 Rules 1 and 2 of the Civil Procedure Rules, seeking the following orders: -

- 25 (1) That the default judgment, Vacating the orders therein and setting aside the execution of the decree in Civil Suit No. 1145 of 2023. - (2) That the Applicant be granted leave to appear and defend the suit. - (3) That the Costs of the Application be provided for. - 30 The grounds of the Application are contained in the affidavit of the Applicant, James Mwangushya Driers and it states that the Applicant in 2019 applied for and obtained two loans worth UGX 300,000,000/= and UGX 28,000,000/= from the respondent, deposited a land title as security his home in Busukuma, Kyadondo Wakiso District valued at UGX 590,000,000/= and forced sale value of UGX 355,000,000/=. The Applicant defaulted due to - 35 Covid-19 and asked the Respondent to reschedule, which request was denied.

5 That the bank foreclosed on the Applicant's house after a proper valuation was done and that the amount obtained from the sale covered the loan.

That the Applicant was never properly and effectively served with the summons despite the fact that the Respondent knew the Applicant's place of business at Ganesh Plaza and 10 endeavored to serve him through WhatsApp.

That Court passed a default judgment against the Applicant and execution of the resultant decree has now commenced and the Respondent went ahead to file another suit despite the fact that the applicant's loan was fully settled.

That the Applicant has a plausible defense to the Respondent's claim which warrants the grant of leave to defend the suit.

The Respondent's affidavit in reply was sworn by Ruth Birungi, the respondent's Legal 20 Manager Banking and Litigation and she stated that the Applicant's application amounts to an abuse of the Court process crafted to forestall the recovery of the Respondent's colossal sums of money amounting to UGX 128,014,109/=, together with interest at the rate of 19% per annum from 21st November 2023 and costs of the suit. That this Application is barred in law for failure by the Applicant to serve it within the twenty-one days after the summons 25 was issued on the 13th day of November 2024.

That the mortgage security comprised on Plot 364 Block 137 at Kyambogo, Wakiso district was valued on 10th November 2020 and it returned a forced Sale Value of UGX 340,000,000/=; And that as of 13th July 2020 when notice of sale was served on the Applicant

30 herein, the total loan sum due from the Applicant herein was UGX 347,630,847/= and by 02nd October 2020, the loan sum that was due from the Respondent had accumulated to UGX 361,647,970/=.

That at all material times, the Applicant herein was aware of his default, and upon being 35 served with notices of default, the Applicant herein requested a loan restructure which was rejected by the Respondent for lack of proof of source of income and that upon failure to pay

- 5 the accumulated loan sum due from the Applicant to the Respondent, the latter sold the mortgage security at the sum of UGX 350,000,000/= and vide a letter dated 27th January 2022, the Applicant confirmed that the proceeds of sale were deposited on his account. The Applicant herein did not raise an issue with the value obtained from the sale of the mortgage security but requested for time to vacate the mortgage security. - 10

That given the accumulated outstanding loan that was due from the Applicant herein; the amount collected from the proceeds of sale of the mortgage security was insufficient to pay off the Applicant's loan facilities. Further, that the Applicant herein was, by his own choice upon being contacted by a process server; personally, and effectively served with the

15 Pleadings in Civil Suit No.1145 of 2023 via WhatsApp on Telephone Number 0772812202 which is registered in the names of the Applicant and that service through WhatsApp is effective.

That according to the WhatsApp screenshot that was obtained from Princess Natuhwera, the 20 process server employed by the Respondent's Counsel, it is clear that the Plaint and Summons in Civil Suit No.1145 of 2023 were delivered to the Applicant who saw the said pleadings as per the blue ticks in the WhatsApp conversation.

That the Applicant herein has no plausible defense to the main suit and has not attached any 25 proof of his claims therein.

### **Representation:**

The Applicant was represented by the Law firm of M/S Mudawa and Kyogula Advocates and the Respondent was represented by M/S Kalenge Bwanika Kisubi and Co. Advocates.

## **Evidence and Submissions:**

The Applicant led his evidence by way of an affidavit in support of the Notice of Motion deponed by himself. The Respondent equally led evidence by way of an Affidavit in reply deponed by Ruth Birungi, the respondent's Legal Manager Banking and Litigation.

- 5 On the 12th February 2025, this matter came for hearing in the presence of counsel for both parties and the Court instructions were for written submissions to be filed and uploaded on ECCMIS by 21st February 2025. However, only the Respondent complied, whereas the Applicant did not and has no submission on record; as such, the Court shall rely on his affidavit in support of the Notice of Motion while deciding this Application as well as the - 10 respondent's submission.

#### **Issues:**

- 1. Whether there are sufficient grounds to warrant setting aside the default judgment entered by this Honorable Court in Civil Suit No. 1145 of 2023? - 15 2. Whether there are sufficient grounds for leave to appear and defend the suit to be granted?

#### **PART I: DECISION ON PRELIMINARY POINTS OF LAW**

#### **Decision:**

- 20 Counsel for the Respondent raised a preliminary objection in the submission in reply that the Application is barred in law for failure to serve the Respondent within 21 days after a summons was issued and signed by the Court on the 13th of November 2024 and the same contention was raised in the respondent's affidavit in reply filed on 7th February 2025. - 25 Counsel submitted that the Applicant did not file an affidavit in rejoinder to confirm the date of service of the Application and that according to the case of Bet City (U) Limited & Jamal Sultan Versus Swangz Avenue (U) Ltd, M. A No.1177 of 2020, where an Applicant does not file an affidavit in rejoinder, it follows that they have no objection to the evidence presented by the Respondent in the Affidavit in reply. - 30

That the Applicant did not adduce evidence as to when they served the instant Application. There is as well no affidavit of service on record as at the time of filing these submissions. As a matter of law, the Applicant is taken to have admitted the averment in paragraph 4 of the Affidavit in reply to the effect that the Applicant failed to serve the instant Application

35 within 21 days after the issuance of the summons.

- 5 Counsel submitted that Order 5 Rule 1 (2) of the Civil Procedure Rules is to the effect that service of summons shall be done within 21 days from the date of issue except that time may be extended on application to the Court. In the case of Micheal Mulo Mulagussi Versus Peter Katabalo, Misc. Appeal No.006 of 2016, quoted with approval the Supreme Court decision of Kanyabwera Vs Tumwebwa (2005) 2 EA 86 it was held that the procedure of service of 10 summons under Order 5 Rule 1 of the Civil Procedure Rules equally applies to service of hearing notices and applications or purposes of the provisions relating to issuance and service. Having found that the chamber summons was served out of time, the Learned Judge - 15

In as far as apportioning of time period during service of court summons, Order 5 Rules 1,2, and 3 provides for service of summons and that service shall be effected within 21 days from the date of issue, and may be extended upon application to the court made within 15 days after the expiration of the 21 days by showing sufficient reason for the extension. The Hon.

held that service effected out of the prescribed time without seeking extension fenders the

- 20 Justice Christopher Madrama (*as he then was*) in *Stop and See (U) Ltd v Tropical Africa Bank Ltd* **(Miscellaneous Application No. 333 of 2010) [2010] UGCommC 41,** observed that the time period stipulated in the Civil Procedure Rules are creatures of statute and they cannot be breached at whim. - 25 As cited by Counsel for the respondent, Oder JSC in *Kanyabwera Vs Tumwebwa (2005) 2 EA 86* held that:

*"…what the rules stipulate about service of summons, in my opinion, applies equally to service of hearing notices."*

30 The foregoing decision of Oder JSC is still a good interpretation of the rules and I agree with it. In this instant case, this application equally follows the time stipulations laid down in Order 5 Rules 1,2 and 3.

Order 5 Rule 3 provides for the consequence of non-service of summons within the stipulated time and states that:-

35 "Where summons have been effected under this rule, and –

application liable for dismissal without notice.


- 5 a) Service has not been effected within twenty-one days from the date of issue; and - b) There is no application for an extension of time under subrule (2) of this rule; or - c) The application for extension of time has been dismissed, the suit shall be dismissed without notice"

10 In *M. M Sheikh Dawood v Kenshwala and Sons HCCS No. 14 of 2009*, Hon. Justice Christopher Madrama (*as he then was*) held regarding time stipulation for service of summons and notices in an application and stated that: -

*"The motion must be served on the Respondent before the date stipulated in the motion for hearing at the time of its issuance by the court. Failure to serve a summons within* 15 *21 days under order 5 Rule 1 of the CPR is fatal and if time is not extended, it shall be dismissed. The general rules on service of summons under Order 5 of the Civil Procedure Rules must apply."*

In this instant case, the Notice of Motion was issued by court on the 13th of November 2024, 20 fixing the matter for hearing on 27th November 2024 at 9:00am with a hearing Notice also issued by court on the same date for the hearing at the same time with instructions on ECCMIS "Counsel for the Applicant to serve and file return of service".

The Respondent contends that the same was served after the stipulated 21 days elapsed. 25 However, the Respondent in their contention did not state when they were served with the Notice of Motion although they filed their affidavit in reply on the 7th February 2025. At the hearing on 12th February 2025 counsel for the Applicant stated that they had not been served with the application but only seen the matter on the cause list to which they responded.

Be that as it is, the Applicant did not file a rejoinder to rebut the Respondent's claims which leaves the claim uncontested. The law is already trite as cited by Counsel for the Respondent in the case of *Bet City (U) Limited & Jamal Sultan V Swangz Avenue (U) Ltd, M. A No.1177 of 2020*, where the Court held that, an Applicant does not file an affidavit in rejoinder, it

35 follows that they have no objection to the evidence presented by the Respondent in the Affidavit in reply.

 - 5 In the United Kingdom Supreme Court decision in *TUI UK Ltd (Respondents) v Griffiths (Appellant) [2023] UKSC 48*, the Court held that …. While the evidence of the Claimant's expert report was deficient insofar as it "*left many questions unanswered…and is at a high level of generality*" the Court held that "*it is not irrational and there is no basis for concluding that [the expert] would not have explained his reasoning more clearly on cross-examination*". - 10 The Supreme Court therefore held that, in the absence of a proper challenge on crossexamination, it was unfair for TUI to submit detailed criticisms of the expert report in its closing submissions and for the trial judge to accept those submissions. The Claimant was held not to have had a fair trial as a result. *(emphasis mine)* - 15 The input of the above decision is to the effect that notwithstanding the deficiency and inconsistency in a party's uncontroverted evidence, the Court must generally accept the same as being an admitted evidence by virtue of the none rebuttal by the opposite party. In this instant case, despite the Respondent's failure to buttress the claim of service outside the 21 days without an application for an extension of time, the same claim is uncontroverted - 20 by the Applicant's failure to make an affidavit in rejoinder or much less, file a submission to address the same.

In the circumstances, I am inclined to allow the Preliminary Objection and rule in favor of the Respondent.

However, in the spirit of finality in this application, I shall resolve the issues concerning the merits of the application as though the same were proper before the court.

## **PART II: DECISION ON THE MERITS OF THE APPLICATION**

## **Issue 1: Whether there are sufficient grounds to warrant setting aside the default judgment entered by this Honorable Court in Civil Suit No. 1145 of 2023?**

For brevity, I shall not reproduce the contents of the affidavit in support which I shall rely on in the absence of submissions by the applicant, the crux of the applicant's ground for the 35 grant of setting aside the default judgment is that effective service in the main suit, Civil Suit


5 No. 1145 of 2023 was not effected on him despite admitting that summons in the same suit were sent to his WhatsApp, electronic messaging Application.

Order 9 Rule 27 of the Civil Procedure Rules provides that, In any case in which a decree is passed ex parte against a defendant, he or she may apply to the court by which the decree

10 was passed for an order to set it aside; and if he or she satisfies the court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the 15 decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also.

For an application brought under Order 9 Rule 12, to succeed, the Applicant must demonstrate that in light of all the facts and circumstances both prior and subsequent, it 20 would be just and reasonable to set aside or vary the Judgment. See *Mbogo v Shah (1968) EA 93, Nicholas Rousos Rousos v Gulam Hussein Virani and Another SCCA No. 9 of 1993*, and *Patel v E. A Cargo Handling Services (1974) EA 76.*

Order 5 Rule 10 of the Civil Procedure Rules provides for service to be effected on the 25 defendant in person or his agent, that wherever it is practicable, service shall be made on the defendant in person unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient.

However, notwithstanding Order 5 Rule 10, the Courts are encouraged to take a proactive 30 stand and adapt to the times by adopting the numerous new technological revolutions in the field of communication on course now and dispense with antiquated court processes and procedures in relation to service of the court process. See *Abela and others v. Baadarani, Trinity Term (2013) UKSC 44* and *Gray v. Hurley [2019] EWHC 1636 (QB).*

35 In our jurisdiction, Rule 7 (2) (c) of The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, Legal Notice No. 6 of

- 5 20I9, requires parties at all stages of the court process and during the trial, to use technology for purposes of information exchange and to serve documents electronically through email, instant messaging applications, and any other widely used electronic communications service. - 10 The Courts have so far interpolated Rule 7(2)(c) and acknowledged electronic service of court process as effective service. See *Male H. Mabirizi v. Attorney General, H. C. Misc. Application No. 918 of 2021*, where service was done through e-mail; *Musumba Isaac Isanga v. Quid Financials Ltd, H. C. Misc. Application No. 139 of 2020*, and *Nyanzi Fred Sentamu v. The Electoral Commission and 2 others, C. A. Misc. Application No.10 of 2021* - 15 *arising from Election Petition Appeal No.20 of 2021*, In these two cited cases, the Courts acknowledged and allowed service that was done through the WhatsApp messenger Application.

In circumstances where the addressee/the intended recipient of the summons/ the 20 intended Defendant denies receipt of the court summons; the onus is on the sender/server to prove that the summons was indeed delivered. See *Peace Barigye v. Rosemary Kizza Omamteker, H. C. Misc. Application No. 2075 of 2022.*

In this instant case, in the respondent's affidavit in reply paragraphs 10-12 that by his own 25 choice upon being contacted by a process server; the Applicant was personally and effectively served with the Pleadings in Civil Suit No.1145 of 2023 via WhatsApp on Telephone Number 0772812202 which is registered in the names of the Applicant.

The said affidavit of service in Annexure "H" of the affidavit in reply is sworn by Natuhwera 30 Princess, a Court process server, and in paragraphs 8-14, she stated that the Applicant herein gave the process server an option of serving the Summons and Plaint in Civil Suit No.1145 of 2024 on the Applicant's WhatsApp number 0772812202. Further attached to the affidavit of service is a "scanned screenshot text" and compressed PDF version of the summon and suit sent to WhatsApp on Telephone Number 0772812202.

- 5 The text message and the compressed PDF bear the "two blue ticks" which is a judicial notice fact in the usage of the WhatsApp Application for receipt of the message and reading of the same. Mere receipt of the message without reading the same bears "two grey ticks". In this case, the recipient and the owner of the Telephone Number 0772812202 on the WhatsApp Application did receive and read the contents of the message sent; and I labored - 10 and took it upon myself to establish the registered name against the Telephone Number 0772812202 on the WhatsApp Application and the same is registered in the names of JAMES DIERS MWANGUSYA; the Applicant herein.

In the premises, I am convinced that the Applicant was effectively served with the summons

15 in Civil Suit No.1145 of 2023 and had sufficient knowledge about the case to enter defense or apply for leave to file out of time, whatever the circumstance.

Issue 1 is answered in the negative.

20 **Issue 2: Whether there are sufficient grounds for leave to appear and defend the suit to be granted?**

The Applicant in paragraph 10 of the affidavit in support of the notice of motion stated that he has a plausible defense to warrant grant of leave to appear and defend.

25 Counsel for the Respondent did not submit on this issue, nonetheless, I feel there is a need to opine on it.

Where an Applicant prays for leave to appear and defend, he must be able to show that he has a good defense on the merit(s); or that a difficult point of law is involved, or a dispute as

30 to the facts ought to be tried, or any other circumstances showing reasonable grounds of a bona fide defense. See *Saw v Hakim 5 TLR 72; Ray v Barker 4 Ex DI 279."* See also *Churanjilal & Co. v. A. H. Adam (1950) 17 EACA, 92, Hasmani v. Banque du Congo Belge (1938) 5 EACA 89 at 89, Pamela Anyoti v Root Capital Inc HCMA 844 of 2023*.

5 However, it is not enough for the Applicant to simply state in the motion or affidavit in support he or she has plausible defence. See *Order 6 Rule 8* and *Ecobank Uganda Limited v Kalson's Agrovet Concern Ltd & Anor HCCS 573 of 2016.*

It is good practice and for the sake of convincing the court, as would any evidence, for the 10 Applicant to attach a draft copy of the acclaimed defense to help the Court ascertain prima facie, its plausibleness without further going into its merits at this point.

In this instant case, the Applicant did not attach a draft of the acclaimed defense, and neither did he provide further particulars of his contentions making the defense in his affidavit in 15 support to better inform the court.

In the premises, I find no merit in this issue and answer it in the negative.

## **In Conclusion:**

20 I accordingly make the following orders, That this Application fails for lack of merit and is dismissed with costs to the Respondent.

I so order.

25 **Dated** this\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2025, delivered electronically and uploaded on **ECCMIS** 31st March


30 **Judge,**

**31st March, 2025.**