[2025] UGHCLD 15

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLENEAOUS APPLICATION NO. 2737 OF 2024 (ARISING FROM MISC. APPLICATION NO.824 OF 2023) KANTINTI APOLLO :::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**RAMBA EMMANUEL ::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

### *Introduction:*

- 1. This was an application by Notice of Motion brought under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 36 rule 11, Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR), for orders that: - i) The Exparte judgment and decree be set aside. - ii) The execution of the said decree and judgement be stayed and or be set aside. - iii) The Applicant be granted unconditional leave to appear and defend the suit. - iv) That Civil suit No. 824 of 2023 be dismissed for nonservice of the summons as required by the law.

v) The costs of the Application be paid to the Applicant.

# *Background;*

2. That Respondent instituted Civil Suit No. 1123 of 2021 against the applicant for a declaration that the property comprised in Kyadondo Block 169 Plot 3103 at Kabubu is his.

## *Applicants' Evidence;*

- 3. The grounds of the application are contained in the affidavits in support of the application deposed by **KANTINTI APOLLO** the Applicant and are briefly that: - i) That I was arrested and committed to civil prison pursuant to a warrant of arrest issued by this Court and I was never served with summons or any other Court document and I only learnt of the existence of the suit after my arrest and committal to civil prison. - ii) That I then instructed my former lawyers who perused the Court file and informed me that the matter proceeded exparte after Court relied on an affidavit by Nantaba Betty and the said affidavit is false as Namuwonge Salima is not known to me and she has never been my agent. - iii) That I was never served with a notice to show cause nor did I receive any phone call from a one Nantaba Betty and

the affidavit deposed on 29/8/2023 is false as I was never served with summons and the signature attributed to me thereof is not mine.

- iv) That I am informed by my lawyers that after the expiry of the summons issued on the 18/8/2023, there was no application to this Court to extend the same thus the summons purportedly served on the 10/11/2023 were invalid and illegal and that there was no effective service of summons upon me. - v) That I am not indebted to the respondent in the sums claimed or at all, I have a good defence to the Respondent's claim. That the land which I sold to the Respondent is comprised in Kyadondo Block 169 plot 3103 land at Kabubu measuring 1.031 hectares which is different from the land comprised in Kyadondo Block 169 plot 1139 measuring 1 acre therefore the land which I sold to the Respondent is still available for him to occupy and the certificate of title is in my custody.

### *Respondent's evidence;*

4. The application is opposed to by an affidavit in reply deposed by **OKUYO HENRY,** an Advocate practicing under JM Musisi

Advocates and legal consultants, the Lawyers of the Respondent and are briefly that: -

- i) That sometime in November 2022, the Respondent purchased 65 decimals out of land comprised in Kyadondo Block 169 Plot 3103 from the Applicant at Ug shs 95,000,000 and further purchased another piece of land still from the Applicant measuring 30 decimals at Ug shs 30,000,000/= making the total purchase price Ug shs 125,000,000/=. - ii) That unknown to the Respondent the Applicant had already sold the same land to a one Bukenya Zakaria Mutaaka in 2015 and the same person was in possession. Upon learning of all this the Respondent demanded for the refund of the purchase price but the Applicant refused to refund the same. iii)That sometime in 2023, the Respondent instructed us to file a case against the Applicant to recover the Ug shs 125,000,000/= that he had paid to the Applicant and the suit was filed, the summons and the plaint were served onto the Applicant who acknowledged receipt of the same on 28th August 2023. - iv) That since the summons are now system generated, what was issued to us were summons in an ordinary plaint yet we

ought to have got summons in a summary suit therefore we applied for fresh summons.

- v) That upon issuing fresh summons, the same was served onto the Applicant through Namuwonge Salima, a maid to the applicant and she was present at the applicant's home and acted on the applicant's instructions upon which the Applicant with his then Lawyer Matovu Mugenyi and Aisha a close friend to the applicant engaged us in negotiations to see how to pay but all those promises never yielded any results. - vi) That despite the negotiations, the Applicant never applied for leave to appear and defend the suit until 4th March 2024 when we applied to Court for a default judgement and the same was granted therefore, we were under no obligation to serve him but we did even serve him the taxation application but still the Applicant failed to come to Court despite the fact that he knew of the existence of the suit thus the taxation application proceeded exparte as well. - vii) That we filed Execution Application No. 220 of 2024 to recover the amount awarded by Court to the Respondent together with costs and Court issued a notice to show cause why execution should not issue. The matter went into

execution and a warrant of execution was issued and on 6th September 2024, the Applicant was arrested and committed to civil prison for failure to pay the decretal sum together with costs.

- viii) That upon his arrest, the applicant through his new lawyers of Kajeke, Maguru & Co. Advocates filed M. A No. 2412 of 2024 with similar prayers as the current application after which negotiations emerged with the Applicant and the Respondent's lawyers on how to settle the outstanding sum and the application was withdrawn by consent of all the parties, the Applicant was released under an understanding that he would make a payment plan to be filed in Court within one month. - ix)The Applicant was released on 1st October 2024 but he disappeared and refused to answer calls and he filed this application with similar prayers as the one which was withdrawn using another law firm, that the first Application was filed by Kajeke & Co. Advocates and the second application signed by Nakazzi Margret as Counsel for the Applicant she is also known to be working under Kajeke Maguru & Co. Advocates.

- x) That it is not true that the Applicant was served with expired summons as we applied to Court to renew them, the signature on the first application filed by the applicant while he was still in prison, the signature on the current application and the signature on the plaint served onto the applicant is the same and he can't deny its knowledge. - xi)That the applicant has no defence to this case as to why he should not refund the respondent's money as he acknowledged receipt of the same but only maintains that the land which the respondent purchased is available, the respondent failed to take possession of the same because of the third-party claims and now he seeks to be refunded his money. - xii) That the applicant having conceded and withdrew Misc. Appn No. 2737 of 2024 and got released from prison he cannot again challenge the same, he cannot approbate and reprobate and as a lawyer I know that Court can grant this application with conditions which the Applicant must fulfill before he participates in the suit therefore Court should order him to deposit the decretal sum and taxed costs to court if he is to be allowed to appear and defend. ## *Representation;*

5. The Applicant was represented by Nakazzi Margaret of M/s Malik Advocates whereas the Respondent was represented by Kakooza Shamir of M/s JM Musisi Advocates & Legal Consultants.

## *Issues for determination;*

- 6. This Court takes not of the Applicant's wanting to set aside a non-existing judgement as what was entered was a default judgement and not an exparte judgement. However, in the interest of justice I shall proceed to determine this application with necessary adjustments under Article 126(2)(e) of the Constitution of the Republic of Uganda. - **i) Whether there is sufficient cause to set aside the default judgement and decree in Civil Suit No. 824 of 2023.**

## *Resolution and determination of the issue;*

**Whether there is sufficient cause to set aside the default judgement and decree in Civil Suit No. 824 of 2023?**

7. Counsel for the Applicant in her submissions stated that the Respondent filed Civil Suit No. 824 of 2023 and the Applicant

was never served with any Court process and that the Applicant came to learn about the existence of the said suit when he was arrested and produced before this Court and remanded to civil prison. That the summons allegedly served upon the Applicant were invalid thus he seeks to have the default judgement and decree set aside.

8. Counsel further cited Order 36 rule 11which provides that after the decree, the Court may if satisfied that the service of the summons was not effective or for any other good cause, which shall be recorded, set aside the decree and if necessary stay or set aside execution and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court thinks fit.

## *Analysis of Court*

- 9. Section 98 of the Civil Procedure Act empowers Court to make such orders as may be necessary for the ends of justice. - 10. In applications of this nature, the applicant has to satisfy that there is good cause or sufficient reason why the judgement should be set aside. The Applicant in these circumstances alleges that he was never served with

summons or any other Court document and that he only learnt of the existence of the suit after his arrest and committal to civil prison.

- 11. The Applicant attached an affidavit of service deponed by a one Nantaba Betty of JM Musisi Advocates & Legal Consultants (Annexture C) on the application which shows that the Applicant was served with summons on the 28th of August 2023 however, they were summons in an ordinary suit and not a summary suit as was instituted by Respondent but he received the plaint on the same date. - 12. In reply, the Respondent's Advocate stated that, Court issued summons in an ordinary suit since the same are system generated upon which the Respondents applied to Court for issuance of summons in a summary suit as per the letter dated 12th October,2023. - 13. The Respondent's Advocate further stated that upon issuance of fresh summons, the Applicant was served on the 10th day of November, 2023 through Namuwonge Salima, a maid to the applicant who the Applicant denies.

- 14. Order 5 Rule 10 of the Civil Procedure Rules requires service to be made on the defendant in person unless he or she has an agent empowered to accept service. - 15. Order 3 rule 2 of the Civil Procedure Rules goes ahead to define recognized agents as persons holding powers of Attorney authorizing them to make such appearances and applications and do such act on behalf of the parties and persons carrying on trade or business for and in the names of the parties not resident with in the local limits of the jurisdiction of the Court. - 16. The Affidavit in reply clearly states that services was made on the maid in the premises of the Applicant which falls short of the rations of effective service. Service ought to have been made on the defendant now Applicant personally and not the maid as she is not among the recognized agents under the law. - 17. The Applicant further prayed that Civil Suit No. 824 of 2023 be dismissed for non-service of summons as required by law. - 18. The primary objective of service is to make a defendant aware of Court summons against him or her and that service

which does not realize that objective is infective. **(Geoffrey Gatete & anor v William Kyobe SCCA No. 7 of 2008)**

- 19. The Applicant became aware of the said proceedings on the 28th day of August 2023 when he received the plaint and summons despite the mishaps in the issuance of summons. The Applicant now seeks leave to appear and defend but at the same time prays for the suit to be dismissed on grounds of non-service, quite perplexing!! - 20. However, The Court must consider whether setting aside the default judgement would be in the interest of justice and that the defendant has some basis for defending the claim. **(See Sserubiri Frank & others v Salama Jaques & others HCMA No. 205 of 2021).** - 21. It is the Respondent's contention that he failed to take possession of the property he purchased from the Applicant as Bukenya Zakaria, a third party is in possession of the same and lodged a caveat thereon for which the Respondent filed a suit seeking for refund of consideration. - 22. The Applicant attached to this application a proposed written statement of defence in which he states that the land he sold to the Respondent is comprised in Kyadondo Block

169 Plot 3103 at Kabubu and the land belonging to Bukenya Zakaria is comprised in Block 169 Plot 1139 and that the said land is different and he has the certificate of title in his custody.

- 23. This Court finds this reason to be plausible so as to grant the applicant audience. However, I take note of the failed attempts to resolve the matter amicably by the Respondent which have continuously been frustrated by the Applicant, filing applications and entering into consents where he never fulfills his part of the bargain in the same. - 24. Where as it is the duty of this Honourable Court to ensure that justice is served, the same must be done in a cost efficient and timely manner which the Applicant's actions are clearly against. For this reason, this Court shall grant the Applicant conditional leave to appear and defend this matter. - 25. In the premises, this application is granted on the following orders; - i. The default Judgement and decree in Civil Suit No. 824 of 2023 and the execution proceedings are hereby set aside.

- ii. The Applicant is granted conditional leave to appear and defend provided he deposits the decretal sums in this Honourable Court within a period of one month from the date of delivering this ruling. - iii. Costs shall be in the main cause.

**I SO ORDER.**

**…………………………..**

**NALUZZE AISHA BATALA Ag. JUDGE 21 st /01/2025**

**Delivered Electronically via ECCMIS on the 21st day of January 2025.**