[2025] UGHC 556

# THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) **MISCELLANEOUS APPLICATION NO. 565 OF 2024** (ARISING FROM MISCELLANEOUS APPLICATION NO. 486 OF 2017) $\mathsf{S}$ (ARISING FROM CS No. 282 OF 2017)

SSEBAGGALA MOHAMMED...................................

#### **VERSUS**

STANBIC BANK (U) LTD.................................... 10

#### BEFORE: HON. MR. JUSTICE RICHARD WEJULI WABWIRE

### **RULING**

#### **INTRODUCTION** 15

This Application was brought under Order 36 rule 11 and Order 52 rules 1 and 3 of the Civil Procedure Rules, S. I 71-1 and Section 98 of the Civil Procedure Act Cap. 71 for orders that;

(i) The Order of this Honorable Court dismissing Miscellaneous Application No. $486/2017$ be set aside; 20

(ii) The Judgment/Decree of this Honorable Court in CS No. 282/2017 be set aside;

(iii) Miscellaneous Application No. 486/2017 be reinstated and fixed for hearing inter partes;

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(iv) 'l'hc costs of this lpplication bc provided for.

30 'Itre Application was supported by an ;\ffidavit dcponed by the Applicant whcrein he states that through his former latvyers I(asana, Ivlpungu & Co. Advocates, he frlcd Miscellancous ,'\pplication No. 486 /2017 for lcave to aPPear and defcnd CS No. 282/2017 . 'I'hat this court dismissed thc r\pplication for want of ptosecution and cntercd judgment in CS No. 282/2017.'['hat neither his lawyets nor he were served with any hcaring notice prior to thc dismissal and judgmcnt.

,\n .,\ ffid a'r"it in rcply rvas deponcd by Norris N{utahunga a Senior Legai Officet of thc Plaintiff who deponed that he was adviscd by his lauyers that thc Application is an uttet abusc ()f court process, full of falschoods; intcnded to frustratc the Itcspondent's efforts of recovcring thc Decretal sums and should bc dismisscd with costs to thc ltcspondent. In rcjoindcr, the i\pplicant avcrrcd that his r\ffidavit in support is dcvoid of falschoods contrary to the ltespondcnt's avcffneflts.

# REPRIlSEN. I,ATION

'ltre .,\pplicant was rcprcsentcd by Pinnacle r\dvocates rvhile the Respondent was teprescntcd by Oristal .r\dvocatcs. 'fhe Parties filcd writtcn submissions which Court duly adoptcd.

SUBMISSIONS

'I'he ,'\pplicant's Counsel submittcd that thc Application dcmonstrates sufficient cause for sctting asidc the dccrcc and rcinstatcmcnt of thc Applicant's ,'\Pplcation for leavc to appear and dcfend the main suit. (lounscl submittcd that the ;\pplication was dismisscd prcmarurely without affording the Applicant's formet lawyers opportunity to appcar, bc hcard and shorv cause rvhy thc ,'\pplication ought to not have bccn dismissed' 'l'hat ncithcr thc Applicant's lawl'ers nor himsclf rvcre served with thc impugncd Narra lo show caue,which prcvcnted thcm from appcaring at the hcaring priof to thc dismissal.

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'fhat paragraph 5 of annexturc D of thc r\pplicant's Affidavit in support of thc Application shows that thc impugned Nolice to shoa cattse was incffcctively scn'cd upon the r\pplicant's former lawycrs because; while the Court Proccss Scrver statcd that hc called the Applicant's former lawyers and that the lawyer did not pick, Court Process Server did not indicate thc tclcphonc numbcr which shc callcd to prove that thc samc belongcd to thc ,,\pplicant or his larwcrs.

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- 55 Counscl furthcr submitted that the dismissed Application indicatcd thc physical addtess of the Applicant's lawyer but the Process Sen'et did not labot to scri'e physically. That thc r\ffidavit of scrvicc docs not indicatc that thc Noticc rvas reccivcd and cndorsed by the Applicant or his formcr lawyers.'fhat as such thc Applicant and his formcr lawycrs wcrc unavare of the Noticc since the samc was ncvcr sen'ed uPon thcm. - 60 'l'hat if there wcre any lapscs or default on the Part of thc r\pplicant's former lawyers, the samc should not be visited on thc .,\pplicant.

Counsel prayed that coutt allows thc instant Application to afford the ,\pplicant an opportunity to bc heard.

65 In rcply, the Respondent's counsel submitted that the ;\pplicant ftled an .,\pplicarion seeking leave to appear and defcnd thc main suit on 2"d Junc 2077 but nevcr took any recognizable, mcaningful or proactive stcps for four ycats to have the mattcr fixed and heard. That thc Applicant's allegation that the rcason for his failure to have thc Applicatioo fixcd and heard was due to loss of t-he main coutt filc is a falsehood bccausc at the time of lodging thc .,\pplication, thc file had bccn fully rcconstirutcd, summons

lo extracted and scrvcd on thc ,\pplicant. 'lhat if r\pplicant harborcd legitimatc interest in prosecuting thcir matter, hc would not have waitcd for the Respondcnt to scrvc a fotmal demand to wakc up ftom its scven-year slumber sincc insriudng the Application for setting aside.

Counsel further submitted that much as the Applicant might allege non-service, the court's initiative to have the matter fixed and disposed of did not waive the Applicant's 75 primary duty to follow up on his matter and have it fixed and determined on its merits. That the Applicant's dilatory conduct manifested in the failure to fix and prosecute Miscellaneous Application No. 486/2017 demonstrates their intention to deprive the Respondent of monies lent to the Applicant. That it is the Respondent who continues to suffer substantial loss as its decretal sum continues to be unjustly withheld by the Applicant because of the endless litigation brought by the Applicant's frivolous Applications, which defeats the purpose of summary procedure.

Counsel prayed that the Application be dismissed with costs to the Respondent.

In rejoinder, the Applicant's Counsel submitted that all the Applicant is requesting for is to be heard. That the Respondent will not be prejudiced if the Application is granted.

## COURT'S DETERMINATION

According to the Applicant's submissions, the Application demonstrates sufficient cause for setting aside the decree and reinstatement of the Applicant's Application for leave to appear and defend the main suit.

- In the case of Kabarole District Local Government Council vs Gunn Paper 90 Industries Ltd, HCMA No. 103/2022, court held that the law leaves the meaning and application of the phrase sufficient cause to judicial discretion and determination basing on the facts, surrounding circumstances and merits of each particular case for the purpose of ensuring that the ends of justice are met. - The sufficient cause raised by the Applicant's Counsel in the instant case is the 95 ineffective service of the *Notice to show cause* upon neither the Applicant nor their lawyers. In respect to this, the Applicant's Counsel relied on annexture D to the Affidavit in support which is an Affidavit of service deponed by Alice Adebo the court process

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server. In that Affidavit she statcd that shc called thc Applicant's former lawyers for scrvice but thcy did not pick.

O.5 of the CPR provides for service of sumrnons. According to anncxture D to thc ,\ffidavit in support, contrary to R.10 rvhich ptovides that servicc shall bc made on the dcfendant in pcrson, unless hc or shc has an agcnt cmpowcrcd to acccPt scrvicc, in rvhich casc scrvice on the agent shall be sufficient. I iffcctive scrvice of summons mcans service that produces the desired or intendcd result. Converscly, non-cffcctive scrvicc of summons means scrvice that does not produce such result. 'l'here can bc no doubt that the dcsircd and intended result of scrving surrrlnons on the defendant in a civil suit is to makc thc defendant awarc of thc suit brought against him so that he has thc oppomrniry to respond to it by cither defcnding thc suit or admitting liability and submitting to judgmcnt. 'l'hc surcst modc of achicving that rcsult is scrving thc dcfendant in petson. Su Gwfry C)atete and another us lhilliam liobe SC()4 No. 7/ 2005. Alice Adcbo the court process scrver did not scrvc the Notice lo shoa cause upon thc r\pplicant or his lawycrs.

115 120 R.tS provides for instances wherc the sen ing officcr, altcr using all duc and rcasonablc diligence, cannot frnd thc person on whom service can bc madc. It ptovidcs that in such instanccs, thc serving officer shall affix a copy of thc summons on thc outcr door or some orhcr conspicuous part of the housc in which thc defcndant otdinarily residcs or carries on busincss or personally rvorks for gain, and shall thcn rcrurn thc original to the court from which it was issucd with a report endorscd on it or anncxcd to it staung that he or she has so affixed thc copy, thc circumstanccs in which he or shc did so, and the namc and addtess of the pcrson, if any, by rvhom the housc rvas idcntified and in whose prcscnce the copy was affixed. I agree with the Applicant's Counscl that the dismissed r\pplication rvhich is annexrurc l) to thc;\ffidavit in support had the physical

address of thc Applicant's lawyct.

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- ¹²⁵ llut from thc proccss server's Affidar."it, she did not labor to scrve physically yet R-16 provides that in thcir Affidar"it o[ sen'icc, thc scn'ing officer shall statc thc time whcn and the manncr in rvhich the summons rvas scrved, and the name and address of the person, if any, identifoing thc pcrson scn'cd and rvitnessing thc delivery or tendcr of thc summons.'fhc provisions of this rulc is mandatory...\ff/hat thc rulc stipulates about - scn icc of sLrmmons, in my opinion, applics to scn'icc of hcaring notice s. 'f ee [idison Kanlabwera t's Pastoi 'l'umwebaqe .f C(2 No. 6/ 2001.'l'hc proccss scrver statcd that shc conducted scrvice oI thc No/ice lo shou catse by calling both lawycrs. She went ahcad to indicatc thc tclcphonc number of the Rcspondent that shc callcd but did not indicate thc r\pplicant's teleph<;nc numbcr which shc callcd to prove that she indccd called the ;\pplicant's larvyets as alleged. 130 135

I take judicial noticc of, and agrce with the Rcspondent's submission that thc -\pplicant's allegation that the tcason for his failurc to have thc r\pplication fr-xed and hcard rvas duc to loss of thc main court filc is a falschood bccausc at the timc of lodging thc Applicarion, thc filc had bccn fully rcc<>nstitutcd, summons cxttacted and scrvcd on thc r\pplicant and thc r\pplicant had 6lcd an r\pplication for lcavc to appcar and dcfcnd.

In the case of Ketty Najanja V Yafesi Wamala and 2 others Misc. App No.001 of 2019, court hcld that lor the dismissal ordcr to bc sct aside, it must bc provcd that thc Applicant rvas pteventcd from prosecuting his casc by sufficient cause.

I;or an ;\pplication for scning aside undcr the ptovisions of 0.36 R.11 to succecd on thc ground of non-scrvice, it must bc dcmonstratcd that scrvice of sufi[nons was incffcctivc. r45

In the instarrt case, the proccss scrver failcd in hcr cardinal duty to cffcct effcctivc scn'ice r>n thc;\pplicant's formcr lau.r'cr. It l;elicvablc that that the Applicant and his former larvl,crs wcrc unawarc ttf thc Notice bccausc thc samc was ncvcr scn'ed upon them. Scrvicc of thc Notin lo shou catse was thcreforc ineffectivc, lvhich would amount

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to sufficient cause for the Applicant and thcir then lawyers not to have appcared in court on the datc of the dismissal.

In t}re event, this Application succeeds, and it is ordered as follows;

'Ihe Order of ttris Honorabic Coutt dismissing Miscellaneous Application No. 486/2017 is heteby set aside;

The Judgment/Decree of t-his Honorablc Court in CS No. 282/2017 is set asidc;

Miscellaneous Application No. 486/2017 bc teinstatcd and fixcd for hcaring intcr paftes;

'I'he costs of this Application shall be in the cause.

¹⁶⁰ It is so ordered


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