[2024] UGHCCD 102

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(CIVIL DIVISION)**

## **MISCELLANEOUS APPLICATION NO. 362 OF 2021**

### **(Arising from Civil Suit No. 084of 2019)**

**LUZINDA SALEH :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

**CHIMS AFRICA (U) LIMITED :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA**

### **RULING**

#### **Introduction**

[1] This application was brought by Notice of Motion under Section 98 of the Civil Procedure Act, Order 36 rule 11 and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules for orders that;

- a) The ex parte judgement and decree against the Applicant be set aside. - b) The Applicant be granted unconditional leave to file a defence to Civil Suit No. 084 of 2019. - c) In the alternative, the suit be dismissed for non-service of the summons. - d) The costs of the application be provided for.

[2] The grounds of the application are contained in the Notice of Motion and in an affidavit deposed in support of the application by **Luzinda Saleh**, the Applicant, in which he states that while at Kitalya prison, he was informed by the prison authorities of a process server in regard to a civil suit filed by the Respondent and that the execution process was ongoing. The Applicant asked the prison officials to advise the process server to serve the Applicant's advocate, one John Paul Baingana. Upon being released on bail later, the Applicant called his advocate who asked him to attend court on 27th April 2021 which he did. He stated that when he accessed the documents on the case file through his advocate, he established that the case against him was unknown to him and fictitious, the summons allegedly served upon him had previously expired and he had never been served with any documents as alleged. He also established that the plaint and application for judgment did not show a basis of claim against him. He concluded that is in the interest of justice that the judgment and decree are set aside and he is granted leave to appear and defend the suit.

[3] The Respondent opposed the application through an affidavit in reply deposed to by **Bbale Umar**, the head of the Respondent's recovery department. He stated that the the Respondent instituted the main suit against the Applicant, among others, by way of a specially endorsed plaint. On 6th March 2019, he moved with the court process server, one Hope Ayesigire, who served the Applicant with the plaint and summons which the Applicant acknowledged by signing. He stated that the Applicant never applied for leave to appear and defend the suit and the matter proceeded without the Applicant. Upon expiration of the time for applying for leave to appear and defend, the lawyers for the Respondent applied for a default judgment which was granted. He concluded that the Applicant is misleading court that he was never served with court process yet he was served by a court process server; and it is in the interest of justice and equity that the application is dismissed.

#### **Representation and Hearing**

[4] At the hearing, the Applicant was represented by **Mr. Ahumumuza Edward** from M/s JP Baingana Associated Advocates while the Respondent was represented by **Ms. Nakimbugwe Immaculate** from M/s Mutungi & Co. Advocates. It was agreed that the matter proceeds by way of written submissions which were duly filed by both counsel. I have taken the submissions into consideration in the course of determining this matter.

# **Issues for Determination by the Court**

[5] Three issues are up for determination by the Court, namely;

*a) Whether the Applicant/ 10th defendant was served with summons?*

*b) Whether the application raises any grounds for setting aside the default judgment?*

*c) Whether the filing and serving of the affidavit in reply of the Respondent was out of time?*

[6] I will begin with Issue 3 which is in the form of a preliminary objection raised by Counsel for the Applicant.

*Issue 3: Whether the filing and serving of the affidavit in reply was out of time?*

[7] In their submissions, Counsel for the Applicant cited the case of *Stop and See (U) Ltd v Tropical Africa Bank Ltd HCMA No. 333 of 2010* to the effect that a reply or defence to an application has to be filed within 15 days; failure of which would put a defence or affidavit in reply out of time prescribed by the rules. Counsel submitted that while the application was served on 18th May 2021, the Respondent filed the affidavit in reply on 17th June 2021, twentyseven days after service which was out of time for filing a defence.

[8] Counsel for the Respondent disputed the Applicant's contention that the application was served on 18th May 2021 and stated that it was instead served on 1st June 2021 and a reply was filed and served on 17th June 2021; which was within the time for filing a reply.

[9] The relevant provision under Order 12 rule 3(1) of the CPR requires all remaining interlocutory applications to be filed within twenty-one days from the date of completion of the alternative dispute resolution; and where there has been no alternative dispute resolution, within fifteen days after the completion of the scheduling conference. This plays out well where the matter before the court is an ordinary suit commenced by plaint. However, where the matter is an application in which evidence is led by way of affidavits, I hold the view that the timelines for filing a defence in an ordinary suit ought not apply strictly. I am alive to the decision in *Stop and See (U) Ltd v Tropical Africa Bank Ltd, HCMA No. 333 of 2010*. I, however, find as more persuasive the authority in *Dr. Lam Lagoro v Muni University HCMC No .007 of 2016* wherein the learned Judge held that in an application to be determined on the basis of affidavits, all affidavits and pertinent documents should be filed and served on the opposite party before the date fixed for hearing of the particular application. The learned Judge further held the view that an affidavit in reply, being evidence rather than a pleading in *stricto sensu*, should be filed and served on the adverse party within reasonable time before the date fixed for hearing. In that case, the learned Judge called for flexibility in regard to the filing of affidavits in reply and allowed the late filing of an affidavit in reply.

[10] I am greatly persuaded by the latter decision as representing the correct position of the law regarding the filing of affidavits in reply in interlocutory applications where the rules do not provide for specific time lines. In the present case, the affidavit in reply was filed before the date fixed for hearing of the application and the Applicant had the time and opportunity to file an affidavit in rejoinder. Indeed, the Applicant filed an affidavit in rejoinder to the said affidavit in reply. I find that the Respondent's reply did not occasion any substantial prejudice to the Applicant such as would outweigh the Respondent's right to be heard on the application. In the circumstances, the Respondent's affidavit in reply, which was filed within reasonable time, is properly before the Court. This issue is answered in the negative.

[11] I will now deal with Issues 1 & 2 jointly since their resolution bears the same logical consequence.

*Issue 1: Whether the Applicant/ 10th defendant was served with summons? Issue 2: Whether the application raises any grounds for setting aside the default judgment?*

[12] The gist of this application is based on the provision under Order 36 rule 11 of the CPR, which provides as follows;

*"After the decree the court may, if satisfied that service of the summons was not effective, or for any 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"*.

[13] In the present case, the Applicant relies both on the ground of lack of proper service of summons and presence of good cause warranting the setting aside of the default decree and granting of leave to defend the suit. The Applicant pointed out several anomalies in the service of process that was purportedly done upon him by the process server instructed by the Respondent. These included service of summons outside the stipulated 21 days under the rules and the question regarding the endorsement acknowledging receipt of the summons. I note that while the summons was issued on 5th March 2019, and was purportedly served on 6th March 2019, it is said to have been acknowledged by the Applicant on 29th March 2019. Secondly, while the suit was filed on 1st March 2019 and the summons issued on 5th March 2019, there is a letter by the Respondent's Counsel dated 3rd February 2019 indicating that the summons that was issued on 5th March 2019 had expired before it was served and requesting for fresh summons. Yet there is evidence sought to be relied on by the Respondent showing that the summons of 5th March 2019 had been served on 6th March 2019.

[14] In my view, all the above confusion goes to prove one thing; that there was no effective service of summons upon the Applicant. Such entitles the Applicant to an order setting aside the default judgment and decree and being granted leave to appear and defend the suit.

[15] The Applicant has also argued that he has good cause for having the default decree set aside; on the grounds that the suit does not disclose a cause of action against him and that there are triable issues in the suit that would require the Applicant to make his defence. The Applicant also disputed presence of a liquidated sum claimed in the plaint as against him. The position of the law is that unconditional leave to appear and defend a summary suit will be granted where the applicant shows that he or she has a good defence on the merits; or that a difficult point of law is involved; or that there is a dispute which ought to be tried, or a real dispute as to the amount claimed which requires taking an account to determine or any other circumstances showing reasonable grounds of a bona fide defence. The applicant should demonstrate to court that there are issues or questions of fact or law in dispute which ought to be tried. The procedure is meant to ensure that a defendant with a triable issue is not shut out. See: *M. M. K Engineering v Mantrust Uganda Ltd HC Misc. Application No. 128 of 2012;* and *Bhaker Kotecha v Adam Muhammed [2002]1 EA 112)*.

[16] It follows, therefore, that demonstration by an applicant that they have a bona fide triable issue of law or fact constitutes good cause warranting the setting aside of the default decree and granting leave to defend the suit. In this case, I am satisfied that the Applicant has established that he has triable issues of law and fact which constitutes such good cause.

[17] On the above premises, the application has succeeded on both grounds of ineffective service of summons and existence of good cause. The application is accordingly allowed with orders that;

(a) The default judgment and decree entered in the main suit is set aside as against the Applicant/10th defendant.

(b) The Applicant is granted unconditional leave to appear and defend the main suit vide Civil Suit No. 084 of 2019.

(c) The Applicant shall file his Written Statement of Defence within 15 days from the date of delivery of this Ruling.

(d) The costs of this application shall abide the outcome of the main suit.

It is so ordered.

# *Dated, signed and delivered by email this 14th day of June, 2024.*

**Boniface Wamala JUDGE**