[2024] UGCommC 287

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA [COMMERCIAL DIVISION]

## **MISCELLANEOUS APPLICATION NO. 1333 OF 2023**

## [ARISING OUT OF CIVIL SUIT NO. 170 OF 2022]

MUJUNI MOSES:::::::::::::::::::::::::::::::::::

#### VERSUS

# KYAGALANYI COFFEE LIMITED::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

### **RULING**

This Application was brought by way of Notice of Motion under section 98 of the Civil Procedure Act (CPA), Order 36 rule 11 and Order 52 rule 1 of the Civil Procedure Rules(CPR) for orders that;

- 1) The decree passed by this court in civil suit No. 170 of 2022 on the 23^rd of January 2023 be set aside. - 2) The default judgment entered against the Applicant on the 23^rd of January 2023 be stayed. - 3) Leave be granted to appear and defend. - 4) Costs of this Application be provided for.

The Application was supported by the affidavit of Mr Mujuni Moses, the Applicant and opposed by the affidavit in reply of Mr Kolokolo Bonny, an Advocate working with Kampala Associated Advocates. A supplementary affidavit was sworn in by Kesiime Susan Purity, a legal clerk/receptionist working with M/s Masiko & Co Advocates and the Applicant also filed an affidavit in rejoinder.

The brief facts relating to this case are that the Respondent filed civil suit No. 170 of 2022 against the Applicant on the 28^th of February 2022 under summary procedure and summons were duly issued on the 1^st of March 2022 by this court to be served on the Applicant. The Applicant was required to file their application for leave to appear and defend within 10 days but they did not file it as required by the law. The Respondent subsequently filed an application for a default judgment to be entered in their favour. The court granted the Respondent's application and a default

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judgment was entered on the 17^th of January 2023 and a decree issued on the 23^rd of January 2023 in favour of the Respondent.

The Applicant now seeks to set aside the default judgment and decree on the grounds that he was never served with summons.

### REPRESENTATION

The Applicant was represented by M/s Silicon Advocates whereas the Respondent was represented by M/s Kampala Associated Advocates.

## **RULING**

I have considered the pleadings and submissions of the parties in this matter.

During the hearing of this case, the Respondent raised a preliminary objection that the affidavit relied upon by the Applicant is full of falsehoods and ought to be struck out.

Counsel for the Respondent submitted that the Applicant's ground for setting aside the default judgment in their Application was non-service of summons in the head suit, but they however changed this ground in their affidavit in rejoinder and blamed the mistake of counsel as the reason for not applying for leave to appear and defend within the time set out in the law.

Counsel for the Respondent further contended that paragraphs 5,6,7 and 8 of their affidavit in reply clearly show that the Applicant was served through his lawyers Mr Onesmas Masiko of M/s Masiko and Co Advocates and this instant application was filed by the same law firm of Masiko & Co Advocates. The Applicant chose not to file their application and came up a year later to claim non-service.

Counsel for the Respondent further contended that it is trite law that where an affidavit contains material falsehoods, it ought to be struck out and where an application has no affidavit, it becomes incompetent and should be dismissed. Counsel relied on the case of Joseph Mulenga vs Photo Focus Uganda Limited [1996] KALR where it was held that the objector's affidavit in support contained the obvious falsehoods and such falsehoods rendered the entire affidavit suspect and an application based on such affidavit must fail.

Counsel further relied on the Court of Appeal decision in the case of Rutuku Francis & 5 others vs Eliphas Ndamagye Civil Appeal No.11 of 2017 specifically page 10 where the court held that "unfortunately for the Applicant in this matter,

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the misleading and false averments contained in paragraphs 4 to 10 of their similar affidavits form the crux of their case for an extension of time. I have ignored them and come to the inevitable conclusion that these affidavits are incapable of surviving upon severance of these misleading and false averments."

Counsel submitted that the Applicant brought this application claiming that he was not served and it has been shown by his lawyer that they were served and even a draft application for leave to appear and defend was improperly filed, and they have applied a year later for setting aside of the default judgment on claims that they were not served.

In reply, counsel for the Applicant submitted that the affidavit does not have any material falsehood whatsoever as the Applicant has never been served and the affidavit of service on the court record shows that the Applicant did not sign on any summons. Counsel contended that service has a general rule that it must be effected personally and in the event such is not possible, the party must seek leave of court to serve through other modes of service and this was not done.

The Applicant in the instant case contends in his affidavit in support that he was never served with the summons and that the affidavit of service sworn by the process server contains lies as his lawyers of M/s Masiko & Co Advocates were not served with the summons.

I will now reproduce paragraphs 5 to 12 of the Applicant's affidavit in support as below:

"5. That the process server of the Respondent swore an affidavit of service in which he only put blatant lies in respect of service.

6. That in his affidavit of service which he filed in court and court relied upon while entering a default judgment, the said process server mentions under paragraph 5 that he called me on my personal telephone number and found it off.

7. That he further mentions in paragraph 5 that after calling me and my phone was off, he called my lawyer which he does not mention his name and the lawyer told him that he did not have instructions.

8. That the said process server included toto lies in his affidavit of service that I discussed with my about the case and that I gave him instructions to handle the said case. I have never instructed him at all.

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9. That the law firm of M/s Masiko & Co Advocates has never received any document from the Respondent through Sam Wagoina as the affidavit of service gives a wrong address of its address.

10. That I have being informed by Mr. Masiko which information I believe to be true that their law firm has never employed any clerk/receptionist called Christine and that their law firm has never been located on plot 26 Bakwanye house in Ntungamo district and therefore he believes that service of the said court process was made to different persons not known to them and further that the writing of their law firm on the return copy of the summons was an act of forgery.

11. That I have again being informed by Mr. Masiko whose information I believe to be true that his law firm acknowledges receipt of every court document with a receiving stamp duly signed by the receiving officer at the law firm and he therefore believes that if the return copy of summons does not bear a receiving stamp then service of court summons was not made to them on my behalf."

From the above, it can be seen that the Applicant seeks to rely on non-service of summons as a ground for setting aside the default judgment, and the Respondent in their defense contends that service of the summons was effective.

The Respondent filed their affidavit in reply and I will reproduce paragraphs 5 to 11 of the same as seen below:

"5. That I know that after Sam Wagoina had served both the Applicant and his lawyers Mr. Masiko Onesmas with the summons he shared with me the phone contact of Mr. Masiko Onesmas for further correspondence.

6. That I know that the Applicant through his lawyer Masiko Onesmas of Messrs Masiko & Co Advocates filed a draft application for leave to appear and defend on ECCMIS on 23^rd March 2022 and the same can be ascertained from the system itself.

7. That I know that the Applicant's lawyer is the one that filed the draft application DRFT HCT-00-CC-MA-0291-2022 for leave to appear and defend but the same was badly filed without attaching pleadings or payment of the requisite court fees. (A copy of the ECCMIS printout is attached hereto and marked as Annexture "A")

8. That I know that on 9^th May 2022, the Court staff in charge of ECCMIS could not duly register or forward the Applicant's draft application and they advised the applicant's lawyer to attach pleadings.

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9. That I know that the Applicant and his lawyers despite the reminders to properly file their application for leave to appear and defend, failed to do so.

10. That as the lawyer in conduct of the case, on various dates from $22^{nd}$ April 2022 to 11^th October 2022, I contacted the Applicant's lawyer Mr. Masiko Onesmas directly through his registered mobile number Tel 0772895303 reminding him to file the pleadings in this number. (A copy of our WhatsApp correspondences are attached hereto and marked as Annexure ''B'')

11. That I know that the Applicant and his lawyers despite my reminders failed to apply for leave to appear and defend the suit."

It is notable that as much as the Applicant denied service of summons in their affidavit in support, the Applicant contradicts this averment in his affidavit in rejoinder stating in paragraphs 8 and 11 specifically as below:

"8. That in specific reply to paragraph 6 of the affidavit in reply, I was not able to apply for leave to appear and defend properly in the main suit owing to my former counsels of not informing me in time of his failure to properly file my application for leave to appear and defend and about the correspondence between him and the opposite counsel. Had he made me aware of the correspondence or stage of the matter, I would have followed up on the matter and ensured that the Application is *filed properly.*

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11. That in reply to paragraph 14 of the Affidavit in reply, I aver that it is true that I was aware of the pending suit but it is not true that I was served with the summons for the case. After a long inquiry made to my previous counsel about the suit with no reply, I got to know about the matter after receiving a notice to show cause through a friend and I was made to follow up the case file in which it originates and I established on file that there was an affidavit of service sworn by a one Sam Wagoina who claims therein that he served court summons in the head suit on M/s Masiko & co Advocates located on plot 26 Bankwanye house in Ntungamo district yet according to my understanding the said law firm is in Ankole Properties building."

The above averments in his affidavit in rejoinder clearly indicate that the Applicant was at all times aware of the suit being filed against him and was equally aware that his lawyers had been duly served with summons to the case.

The word effective service envisaged under Order 36 of the CPR was discussed in the case of Geoffrey Gatete & Anor vs William Kyobe SCCA No 7 of 2005 thus:

"The Oxford Advanced Learners' Dictionary defines the word "effective" to mean "having the desired effect; producing the intended result". In that context, effective service of summons means service of summons that produces the desired or intended result. Conversely, non-effective service of summons means service that does not produce such result. There can be no doubt that the desired and intended result of serving summons on the defendant in a civil suit is to make the defendant aware of the suit brought against him so that he has the opportunity to respond to it by either defending the suit or admitting liability and submitting to judgment. The surest mode of achieving that result is serving the defendant in person."

In the instant case, an affidavit of service is filed on record by Sam Wagoina stating the circumstances under which the Applicant was served and in paragraphs 8 to 11 he stated that on the 16^th day of March 2022, he proceeded to the Applicant's lawyers address which is on plot 26 Bakwanye house in Ntungamo and found a lady called Christine at the reception who he introduced himself to and she received the plaint and summons on behalf of M/s Masiko Advocates by signing on it after consulting with counsel through a phone call.

The Applicant as seen above contends that his lawyer's office is not situated at the address stated in the affidavit of service and a clerk of the Applicant's lawyer further stated that they do not have a receptionist named Christine.

On perusal of the record of civil suit No. 170 of 2022 on ECCMIS, it can be seen that the Applicant's lawyers of M/s Masiko & Co Advocates filed a draft application for leave to appear and defend on 25^th March 2022 and did not attach any pleadings to the draft. Further on the 29^th March 2022 and 9^th May 2022, the Applicant was advised on ECCMIS to attach their pleadings and this was not done. From this, it can be clearly inferred that the Applicant and his lawyers were effectively served with summons and this effective service yielded the desired result of making the Applicant aware of the suit. The Applicant's lawyers would never have filed a draft application for leave to appear and defend if they were not aware of the suit filed against their client.

Secondly on perusal of the WhatsApp correspondence between the Applicant's lawyer and the Respondent's lawyer attached as annexure B to the Respondent's affidavit in reply, it can be seen that counsel for the Applicant was communicating with that of the Respondent and he was informed that the Applicant's draft application for leave to appear and defend was not properly filed as no pleadings were attached.

I, therefore, find that the Applicant was effectively served with the summons to file a defense and his affidavit in support contains a lot of falsehoods which he now tries to remedy through filing the affidavit in rejoinder.

In the case of Rutuku Francis & 5 others vs Eliphas Ndamagye(supra) court while referring to the Supreme Court case of Col Besigye Kizza vs Museveni Yoweri & EC, Election Petition No.1 of 2001 stated that:

"The Supreme Court adopted a liberal approach in dealing with affidavits that contain falsehoods. Odoki CJ upheld the position that false parts of an affidavit that were irrelevant to the matter at hand could be ignored and the rest of the averments considered."

This decision enjoins the courts to sever the parts of an affidavit that contain falsehoods and continue with the rest of the case. This can only be possible where the parts containing the falsehoods do not form the crux or the basis of the case.

In the instant case, the falsehoods relate to the Applicant claiming non-service and in such Applications, non-service is one of the most vital grounds that must be proved to set aside a default judgment entered under Order 36 of the CPR. Severing the parts of the Applicant's Affidavit in support relating to him claiming non-service would render the rest of the Affidavit in support incapable of supporting the present Application. This entire application is then rendered without an Affidavit in support.

The Notice of Motion without a supporting affidavit is without evidence and cannot stand. This Application therefore collapses and is accordingly dismissed.

Costs of the Application are awarded to the Respondent.

And take

HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................