[1992] UGHC 59

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## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. APPLICATION NO. 123 OF 1992

(From HCCS No. 600 of 1992)

LUCIANO LIPPI APPLICANT/JUDGMENT DEBTOR

VERSUS

VENICE (U) LTD '....................................................... RESPONDENT/DECREE ,HOLDER. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## ORDER

The applicant Lociano Lippi instituted this application by notice of motion under Order ³³ Rule II and Order ^8 Rule ¹ of the Civil Procedure Rules. In the application he seeks for orders that inter alia.

- "1. the judgment and decree passed exparte against him be set aside. - 2> execution be stayed or set aside.

3-. he be allowed to defend the suit.

The not.ice of motion is supported by affidav: •; sworn by the applicant on 10th November, 1992.

There are two affidavits sworn on behalf of the respondent Venice (U) Ltd. The first was sworn on 12ch November, ¹⁹⁹² by A. K. Roble and the second was sworn on 13th•November, ¹⁹⁹² by Okumu Wengi who is advocate for the respondent.

Briefly the background is that the respondent instituted Civil Suit No. 600 nf 1992 on 25th September, 1992 against the applicant. In the suit the respondent sought to recover Shs. 20000,00©/='as the value of 1000 pairs of shoes sold to the applicant on credit on 29th June, 199^- Apparently there was no period fixed within which payment had to be effected. The suit was brought by way of Surtmaxty Procedure Under 0.33 of Civil Procedure Rules. It is claimed that the applicant was served on 13th September, 1992 with summons and a plaint but defaulted in seeking leave to defend suit. Judgment was therefore entered on 29th October, 1992 under.0.33 Rule ³ because of the alleged default»

Mr. Kasule, learned counsel for the applicant argued this notice of motion on two grounds. First he submitted that service of the alleged service of the summons in summary suit is defective. . Second he argued that the applicant has a defence to the suit and is entitled to be heard before the suit is decided on its merits. Mr. Lubega Matovu opposed the application contending that the service was properly effected and secondly that the applicant has no plausible defence to the action.

Rule II of 0.33 under which the application was instituted states

''After the decree the court may, if satisfied that the service of the summons was not effective, or for some 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 cour' so to do and on such terms as the court thinks fit".

That rule gives this court discretionary powers to set aside the • decree:-

(a) because of defective service, or

(b) fox' some ether good cause ^e

The expression ''some other good cause" is wide and undefined.

On defective service Mr. Kasule attacked the process server's affidavit (para ⁴ thereof) as 'not showing the time when service was effected;^that it is-not clear if the plaint was also served with the summons; that the place of service is quetionable; that ^a letter (annexture "A") though challenged by respondent's counsel as being false, suggests that by 23rd October, 1992 the applicant had not been served.

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He also refered to the affidavit of Miss Mila which suggested that the applicant is not part of business at Plot No. 8, Jinja Road, where the applicant is alleged to have been served.

Mr. Matovu has made submissions to counter those of Mr. Kasule. The affidavit of Mr. Mathew J. B. Owino, the process server, has elements which courted the critisism made by Mr. Kasule.

Paragraph of the affidavit states

''That on the same day (13/10/1992) I proceeded to Jinja, Road on Plot ⁸ being accompanied by Mr. Abdul Kadir Roble the plaintiff'^s director and on my arrival, the plaintiff'^s director pointed and directed me to one Luciano Lippi who was present in his shop. Thereafter I introduced myself to him as I had summons in Summary Suit on plaint for service upon him. He the said Luciano Lippi willingly accepted service by retaining the duplicate copy of and, I requested him to acknowledge the receipt thereof by signing on ^I • —— the original summons which he however refused saying that he will not sign -,ny court document before consulting h: ; lawyers. And the service unsigned summons is herewith sent for filing in the courr together .with the affidavit of service".

I have underlined the words which suggest that if summons was at all served it is not clear vhether the summons had or did not have ^a copy of the plaint attached to it.

The Statutory Form of the Summons is the Appendex ^A Form *^h* to the Civj¹ Procedure Rules and is headed.

''Summons in Summary Suit on Plaint".

That form was virtually reproduced as it appears there with very little variation. Thus although the plaint appears io have had one annexture to it, the copy of summons on the- file states

" .... Set out in the copy plaint with annextures (if any) attached hereto" just as the Statutory form itself states. Mueh

............... A

as I could say that if summons was alone served the applicant was informed that there was ^a suit claiming for Shs. 20M/= from him, I cannot say that the plaint itself was attached to the summons. That means in all probability that even the vital document namely the affidavit verifying the claim was not served since it had to be attached to the plaint. Of course the applicant is denying receipt of both the summons and the plaint.

On the issue of time, by 0.^7 Rule 9, if service is effected after 6.00 p.m. on ^a normal day (as it is claimed in this case, that service was on 15th October, 1992) the ¹⁰ days would have started running next day i.e. on 14th October, 1992. The, last day for making requisite application could have been 24th October, 1992. In that regard I don't attach importance about omission to mention time of service in the circumstances of this matter since judgment was entered on 29th October, 1992. This is because if service had been properly effected, time would be irrelevant.

In this application the-j-e is another matter of interest. That is annexture viA'' tc the applicant's aff?.davits Annexture "A" is ^a letter typed on ^a letter head paper from the firm of Okumu & Co., Advocates. That firm acted for the present respondent, Annexture "Aⁿ purports to have been written cn 2Jrd October, 1992. It •demanded for settlement of the respondents ''dues" not later than 22nd September, 1992. The respondent's counsel denies the authenticity of the letter and claims it is ^a forgery. Obviously dates are confusing. Blit the letter appears to have been typed on the same or similar type writer which typed, inter alia, the -request for judgment, the decree and the affidavit sworn on 24th September, \* 1992 by Roble. Counsel for the applicant on 29th October, 1992 replied to that letter ( Qrf 25/10/1992) denying liability and asked for particulars^ This appears to lend credence to the- submission

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of learned counsel for the applicant that the applicant was not served at all or as claimed. I don't accept Mr. Matovu's view that matters complained of here are techinical. Again if applicant had been served and had defaulted in appearing I see no sound reason why Mr. Okumu wrote annexture "0" to the applicant instead of obtaining judgment as he did later.'

On the second leg of his submissions Mr. Kasule submitted in effect that the applicant has triable issues. He based this on the fact that although in the suit the respondent claimed for Shs. 20M/=, the applicant has in fact paid--over ¹⁶m/=. Mr. Kasule was of the view that since the sale on credit did not specify the time of payment, the cause of notion had not arisen by 25th September, 1992 when the suit was filed. Mr. Matovu on the other hand•submitted that if Shs. ⁱ6m/= was paid, it was paid to ^a wrong party and not to the responde?it. He then submitted alternatively that since on 'i6hh September, 1992, the applicant opted to pay Shs. ⁱ6m/=, he cannot be heard to say th-t the whole amount, i.e. Shs. 20M/=, was not due by the time the suit was filed. I think that the time within which payment was to be made was not defined. I cannot therefore say chat by 25th September, 1992 payment was even due by any standard.

It is not disputed that on 16th September, ¹⁹⁹² when applicant apparently paid ovei Shs. ¹⁶m/=, ne Caleb Cardin and Roble were shareholders, in Venice (U) Ltd. The question is whether payment to Cardini can be treated as payment to the respondent as the complainant contends. As submitted by Mr. Kasule, it appears to me that once the applicant contends that Cardini was a shareholder *\* ^K* in Venice (U) Ltd. by 16th September, 1992, i.e., when the applicant allegedly paid to Cardini the sum of Shs. 16,400,000/=, there is an issue to be tried. That is whether the applicant has or has not .............../6

discharged the greater part of the claim. It is true that annexture "C" does not bear the letter heads of the respondent. But it is equally true that Clandio Cardini appears to have signed annexture "C" for Venice (U) Ltd, the respondent. The body of Annexture "C" sta tes:-

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"1 Claudio Cardini of Venice (U) Ltd, received to day 16th September, 1992 in Kampala the sum of Ug. Shs. 16,^00,000/= in words Sixteen Million Four hundred thousand from Lu'Ciano Lippi.

This sum was part payment of 1000 pairs of shoes dilivered on 29th June, ¹⁹⁹² by Venice (IJ) ltd. to Mr. Lippi. Delivery Note NR 208".

On the face of it the contents of the annexture relate to the shoes supplied by the Company (respondent). The authenticity of the annexture "C" cannot be determed on the basis of brief affidavits. Nor is annexture "C" claimed to be ^a forgery.' Rob'le'^s affidavit is of least help on receipt of the money.

Furthermore Mr. Okumu ' ^s letter, annexture "0" does not even specify what ''dues" the applicant owes the respondent.

In view of the various allegations in rhe applicant's affidavit and. rh³ affidavits of both Mr- Okumu and A. K. Roble, the best course to solve the dispute is to have the suit tried on evidence.

In my view the applicant has raised triable issues and has plausible defences. It scorns reasonable to me that the applicant should defend the suL.t.

Tn the result I allow the application. I accordingly set aside the decree and judgment passed against the applicant. I also set aside the attachment.

The applicant is hereby ordered to enter appearance- and file his written statement of defence within seven (7) days from the date hereof. •• • • .7

given for the plaintiff accordingly.

J. ^W .;N ⁷ \*TSEKOOKO ' • ~'ZJ ^U ^D ^G ^E

26/11/1992.

2/12/1992 at 9-15 a.m.

Next fried of plaintiff present.

Defendant absent.

Ssensonga court clerk.

Court: Judgment delivered in chambers as open court.

2/12/1992