Akibawe v Mango Fund Inc (Miscellaneous Application 1093 of 2024) [2024] UGCommC 370 (26 November 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 1093 OF 2024 (ARISING FROM CIVIL SUIT NO. 425 OF 2024)** 10 **AKIBAWE BUCHARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS MANGO FUND INC ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA** 15 **RULING**

### Introduction

This application was brought by way of Notice of Motion under **Section 33 of the Judicature Act, Cap. 13 (now Section 37 of Cap. 16), Order 9 rules 12 and 27** and **Order 52 rules 1 and 3 of the Civil Procedure** 20 **Rules SI 71-1**, seeking orders that:

- 1. The default judgment entered by Court on 22nd May, 2024 in High Court Civil Suit No. 425 of 2024 be set aside. - 2. The Applicant be granted leave to file his Written Statement of Defence out of time. - 25 3. The Applicant's Written Statement of Defence already on Court record be validated. - 4. Costs of this application be in the cause.

### Background

The background of the application is detailed in the Applicant's affidavit 30 in support of the application, and is summarized below:

- 5 1. That the Applicant was jointly sued with Mary Goreth Kabahweza Junggren t/a Hatch Agro Tourism Farm vide HCCS No. 425 of 2024 in a claim for payment of UGX 54,491,225/= as the total outstanding loan sum, penalties and costs of the suit. - 2. That the Applicant received a WhatsApp message from an unknown 10 phone number with documents attached to which he did not take time to open immediately. - 3. That at that time, the Applicant was in Mbarara City nursing his pregnant wife. - 4. That upon opening the documents, the Applicant found a message 15 requesting for his whereabouts for purposes of being served with Court summons. - 5. That the process server went on to ask the Applicant to meet with him physically however, since he was in Mbarara, he gave the process server his lawyer's address but the process server did not 20 serve them. - 6. That due to the mixed reaction of his wife's sickness and conflicting information from the process server, the Applicant was unable to instruct his lawyers on time but when he came back from Mbarara, he instructed them to file a Written Statement of Defence on the 25 assumption that they were still within time and indeed the defence was filed on 9th May, 2024 but it was discovered that the Respondent had applied for a default judgment that was granted on 22nd May, 2024. - 7. That the Applicant has a formidable defence and that there is 30 sufficient cause to warrant Court to set aside the default judgment. - 8. That it is in the interest of justice that the default judgment be set aside, leave be granted to file the defence out of time or that the

5 defence already on Court record be validated and the matter be heard on its merits.

In reply, the Respondent through its General Manager Ms. Robinah Biribonwa, opposed the application contending that:

- 1. On 11th April, 2024, the Respondent's lawyers received copies of the 10 summons to file a defence and the plaint from this Court, which they served onto the Applicant and Mary Goretti Kabahwezi Junggren. - 2. On 16th April, 2024 after several failed attempts to contact the Applicant via phone calls on his number 039294094, Munderi Richard, a process server proceeded to send copies of the plaint and 15 summons on the Applicant's number which were delivered and read as confirmed by the blue ticks indicating that the Applicant had received and read the documents. - 3. While it is true that the Applicant contacted the process server on 2nd May, 2024 instructing him to serve his lawyers, by that date, the - 20 process server had already filed the affidavit of service on 30th April, 2024 as the Applicant had been served earlier through WhatsApp and there was no reason to deliver documents to his lawyers. - 4. The Applicant was effectively served with Court process through WhatsApp as acknowledged by him. - 25 In rejoinder, the Applicant reiterated his previous averment and further contended that: - 1. The Applicant has never been contacted by a process server called Munderi Richard but rather was contacted by a process server called Allan on 0758019590 from the High Court Commercial Division.

- 5 2. When the process server demanded to serve him physically, the Applicant requested him to serve the documents to his lawyers' M/s Kasumba, Kugonza & Co. Advocates. - 3. The Applicant contacted his lawyers and he was informed that they had not received the Court documents to which he immediately 10 contacted the process server who did not make any response. - 4. The Applicant was reluctant to open the documents because upon checking the registration status of the number that had served him, it was in the names of Niwagaba Nicholas yet the process server had introduced himself as Allan and to that the Applicant suspected that 15 it was cyber fraud. - 5. Some messages between the Applicant and the process server were intentionally deleted especially where the process server introduces himself as Allan working with Commercial Court. - 6. The affidavit of service is therefore filled with falsehoods rendering 20 such an affidavit incurably defective which also renders the entire service defective.

#### Representation

The Applicant was represented by **M/s Kasumba, Kugonza & Co. Advocates** while the Respondent was represented by **M/s Celer** 25 **Advocates.**

### Issues for Determination

- 1. Whether there was effective service of summons in Civil Suit No. 425 of 2024 on the Applicant? - 2. Whether there is just cause to set aside the default judgment in 30 HCCS No. 425 of 2024?

5 3. What remedies are available to the parties?

# Issue No. 1: Whether there was effective service of summons in Civil Suit No. 425 of 2024 on the Applicant?

### Applicant's submissions

Counsel for the Applicant submitted that from the affidavit in support, the 10 Applicant has demonstrated a willingness to defend the suit and that from the onset, when the process server inquired about his whereabouts, he disclosed that he away and furnished the address of his lawyers, M/s Kasumba, Kugonza & Co. Advocates and that unfortunately his lawyers were not served.

15 Counsel submitted that he was prevented from filing the Written Statement of Defence on time due to his inability to instruct Counsel coupled with the sickness of his wife. Counsel further submitted that the confusion by the process server who demanded to serve the Applicant personally warrants the Court to set aside the default judgment.

## 20 That in the case of *Smsone Ltd Vs Zeenode ltd HCMA 449 of 2023*, **Hon. Lady Justice Patricia Kahigi Asiimwe** held that:

*"In applications pf this nature, the primary consideration is whether there is merit to which Court should pay heed; if merits are shown, the Court will not prima facie desire to let judgment pass on which* 25 *there has been no proper adjudication."*

Counsel submitted that the process server was asked to serve the lawyers and that a few days later, the Applicant sent a follow up message to the process server informing him that his lawyer had informed him that he

5 was not served. Counsel then submitted that this confusion was clearly brought about by the process server and that from then on, the process server never responded.

#### Respondent's submissions

electronically via WhatsApp.

Counsel for the Respondent submitted that the issue of effective service is 10 governed by **Order 5 rule 1(2) of the Civil Procedure Rules** which requires that service of summons be effected within 21 days from the date of issuance of the summons. That **Order 5 rule 10 of the Civil Procedure Rules** also provides that service is to be effected personally upon the party or an agent authorized to receive service on their behalf.

15 Relating the above to the instant case, Counsel submitted that the summons to file a defence were issued on 11th April, 2024 and the process server served the Applicant with the summons on 16th April, 2024 via WhatsApp using the Applicant's known phone number 039294094. That according to the affidavit of service, the process server informed the 20 Applicant of the need for service and the Applicant indicated that he was in Mbarara for the next few days and to that, service was effected

Counsel further contended that under paragraph 3 his affidavit in support, the Applicant admits having received the WhatsApp message containing 25 the summons and the plaint but that he did not open them immediately thus unequivocally acknowledging receipt which confirms that he was duly served with the summons within 21 days thereby discharging the Respondent's duty of service under the law.

That in the case of *Peace Barigye Vs Rosemary Kizza Omamteker* 30 *HCMA No. 2075 of 2022*¸ it was held that electronic service including via

5 WhatsApp is valid when the recipient confirms receipts, such as through the presence of "double blue ticks" indicating that the message has been read.

In conclusion, Counsel for the Respondent submitted that the process server confirmed that the WhatsApp message was received due to the 10 presence of the double blue ticks thus establishing the requirement of effective service.

Applicant's submissions in rejoinder

Counsel for the Applicant first submitted that the Applicant was not effectively served on grounds that there was a mix up and confusion 15 brought about by the alleged process server. That the person who served him the documents on WhatsApp introduced himself as Allan of Commercial Court which messages have been intentionally deleted by the Respondent yet the affidavit of service was deponed by a one Munderi Richard, who is a stranger to the matter. That this renders the affidavit of 20 service which was relied upon by Court to enter a default judgment, as

false and incurably defective.

That **Order 19 rule 3(1) of the Civil Procedure Rules** provides that affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove and that in the instant case, the affidavit of 25 service was deponed by Munderi Richard yet it was Allan a process server of Commercial Court that served the Applicant on WhatsApp. That in the case of *Sirasi Bitaitana & 4 Others Vs Emmanuel Kananura HCCA No. 47 of 1976* and in the case of *Joseph Mulenga Vs Photo Focus (U) Ltd (1996) KALR 19*, Court held that where there are falsehoods in the

5 affidavit, the entire affidavit has to be disregarded and the application rejected and therefore, the default judgment should be set aside.

Further, that after the process server introduced himself as Allan of Commercial Court, the Applicant checked the registered names of the owner of the number that had sent the documents and it was registered 10 in the names of Niwagaba Nicholas and as a result the Applicant was hesitant to immediately open and download the documents due to cyber fraud awareness. That therefore, the process server introduced himself as Allan yet it was a lie. Also, that despite the mix up, the Applicant went on to give the process server his lawyers address so that he effects serve on 15 them but he did not.

Counsel also relied on the case of *Male H. Mabirizi Kiwanuka Vs Attorney General HCMA No. 918 of 2021*, where Court relied on **the Constitution (Integration of ICT into Adjudication Process for Courts of Judicature) (Practice) Directions**, **2019** and held that the Court 20 reserves the power to direct parties to use information technology in appropriate cases.

In conclusion, Counsel for the Applicant submitted that service was rendered ineffective by the Respondent's agents to wit; introducing himself as Allan of Commercial Court yet the affidavit of service was sworn by a 25 one Munderi Richard, who went on to delete some chats on their attachment in the affidavit in reply.

#### Analysis and Determination

**Order 5 of the Civil Procedure Rules** is instructive on the procedure and manner of effecting service of Court summons. **Order 5 rule 10** thereof 30 provides that:

5 *"Wherever it is practicable, service shall be made on the Defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient*."

In the instant case, the Applicant contends that a process server reached out to him inquiring about his whereabouts to which the Applicant 10 informed the process server that he was in Mbarara. The process server sent to him documents on WhatsApp. That the Applicant then sent the process server his lawyers address for purposes of service but the process server never served them. In evidence, the Applicant adduced annexures **"A"** and **"C"** attached to the affidavit in support and annexure **"A"** 15 attached to the affidavit in rejoinder.

According to the WhatsApp conservations between the Applicant and the process server marked as annexures **"A"** and **"C"** attached to the affidavit in support and annexure **"A"** attached to the affidavit in rejoinder, on 16th April, 2024, a process server who introduced himself as Allan working with

- 20 Commercial Court contacted the Applicant on his WhatsApp via +256758019590 and inquired about his whereabouts since he wanted to serve him. The Applicant responded that he was in Mbarara and to that the process server sent him a copy of the plaint and summons in Civil Suit No. 425 of 2024 and requested that they meet when he comes back so that he could serve him the physical documents. On 22nd April, 2024 and 29th 25 April, 2024, the process server reached out to the Applicant requesting to meet physically but there was no response until 2nd May, 2024 when the - Applicant responded saying that the documents should be served on M/s Kasumba, Kugonza & Co. Advocates at City Complex in Kampala on 30 Counsel Nkwasiibwe Robinson. - 5 In reply, the Respondent contended that by the time, the Applicant directed the process server to effect serve on his lawyers, he had already deponed an affidavit of service on 30th April, 2024. The Respondent further contended that since the Applicant acknowledged receipt of the plaint and summons on WhatsApp, then there was no need to serve the lawyers since - 10 he had been effectively served. In evidence, the Respondent adduced annexures **"A"** and **"B"**, screenshots of WhatsApp conversations between the Applicant and the process server and the affidavit of service respectively.

It is the law under **Order 5 rule 18 of the Civil Procedure Rules** that any 15 mode of service beyond the parameters of **Order 5 rule 10** thereof, has to be sought for in Court.

For electronic service of summons, **rule 5 (2)(a) of the Constitution (Integration of ICT into Adjudication Process for Courts of Judicature) (Practice) Directions** is to the effect that the parties may, as much as 20 possible, use technology to serve documents so as to expedite the proceedings and make them more efficient and effective.

However, **rule 5(5)** thereof provides that the Court reserves the power to direct the parties to use information technology in appropriate cases. This was re-echoed in the case of *Male H. Mabirizi Kiwanuka Vs Attorney*

25 *General (supra)*.

In the matter at hand, the Applicant averred that the service of the summons was defective since the process server who sent him a copy of the plaint and summons on WhatsApp is different from the person who deponed the affidavit of service. The Applicant further averred that the 30 Respondent intentionally deleted the chats in their annexure **"A"** that

- 5 show that it was Allan who contacted the Applicant and not Munderi Richard, who deponed the affidavit of service. In evidence, the Applicant adduced annexure **"C"** attached to the affidavit in rejoinder. On the other hand, the Respondent did not make any response to the above allegations. - According to annexure **"B"**, the affidavit of service of summons in Civil 10 Suit No. 425 of 2024 dated 30th April, 2024, attached to the affidavit in reply; Munderi Richard, a registered process server, stated under **paragraphs 2, 7, 8, 9, 10 and 11** that on 11th April, 2024, he received a copy of the summons to file a defence from this Court. That on 16th April, 2024, he contacted the Applicant on WhatsApp asking him about his 15 whereabouts so as to serve him. That the Applicant responded that he was in Mbarara to which he sent a copy of the plaint and summons on the Applicant's WhatsApp number and that he swore the affidavit in proof of service of Court process on the Defendants that service was proper and effectual. However, according to annexure **"C"**, WhatsApp conversations 20 between the Court process and the Applicant, attached to the affidavit in rejoinder, the person who contacted the Applicant and even sent him a copy of the plaint and summons, identified himself as '*Allan and I work with High Court Commercial Division*' using telephone number +256758019590.

#### 25 **Order 5 rule 16 of the Civil Procedure Rules** provides that:

*"The serving officer shall, in all cases in which the summons has been served under rule 14 of this Order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served, and* 30 *the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons."*

5 The affidavit of service is also governed by the rules relating to affidavits as contained under **Order 19 of the Civil Procedure Rules. Order 19 rule 3(1) of the Civil Procedure Rules** stipulates that:

*"Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory* 10 *applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated."*

In the premises, given that the person who contacted and sent the copy of the summons and plaint is Allan yet the deponent of the affidavit of service dated 30th April, 2024 is Munderi Richard, a fact that was not contested 15 by the Respondent, it follows that the contents of the said affidavit are questionable and not credible. The process server was according to paragraph 6 of the affidavit in support given the lawyer's address but that he did not serve them. The Applicant later followed up with the process server informing him that he had not served the lawyer however there was 20 no response from the process server.

I have also observed that as stated by Counsel for the Applicant, the Respondent deleted a chat in their annexure **"A"** attached to the affidavit in rejoinder where the process server introduced himself as Allan working with the High Court Commercial Division and yet according to the affidavit 25 of service the process server was Munderi Richard of c/o M/s Celer Advocates.

In light of all the above, my considered view is that the Applicant was not effectively served with the summons in Civil Suit No. 425 of 2024.

Issue No.1 is answered in the negative.

# 5 Issue No. 2: Whether there is just cause to set aside the default judgment in HCCS No. 425 of 2024?

## Applicant's submissions

Counsel for the Applicant first relied on **Order 9 rule 12 of the Civil Procedure Rules** which provides that where judgment has been passed 10 pursuant to any preceding rules or where judgment has been entered by the Registrar in cases under **Order 50**, the Court may set aside or vary the judgment upon such terms as may be just.

That in the application at hand, the Applicant has demonstrated the willingness to defend the suit and that is why when the process server 15 inquired on his whereabouts he disclosed that he was in Mbarara and furnished the address of his lawyers' M/s Kasumba, Kugonza & Co. Advocates but the process server neglected to serve them after promising to do so.

- Further, Counsel submitted that the Applicant was for sufficient cause 20 prevented from filing his defence on time. That sufficient cause in this matter is the Applicant's inability to instruct Counsel on time coupled by the wife's sickness and that as soon as she stabilized, the Applicant was able to send the Court documents via WhatsApp to his lawyers. That as per **Hon. Justice Ocaya Thomas** in the case of *Patrick Katto Vs Dirk* - 25 *Ten Brink HCMA No. 791 of 2023*, sufficient cause means that a party had not acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been 'not acting diligently' or 'remaining inactive'.

Counsel also relied on the case of *Re Christine Namatovu Tebajjukira*

30 *(1992-93) HCB 85* where Court stated that the administration of justice

5 should normally require that the substance of disputes should be investigated and decided on their merits and that lapses should not necessarily bar a litigant from the pursuit of his/her rights.

Further, Counsel submitted that the Applicant has a strong defence which reveals triable issues such as the fact that he was merely a guarantor and 10 the Respondent and the principal debtor having proceeded to sell the pledged properties without his involvement, implied that he was discharged.

## Respondent's submissions

Counsel for the Respondent submitted that much as the Applicant 15 contends that there is sufficient cause to set aside the default judgment, citing illness of his wife as the reason for the delay in filing a defence, is not credible and therefore should not be accepted by the Court. That in the case of *Patrick Katto Vs Dirk Ten Brink (supra)* relied upon by the Applicant, this Honorable Court held that "sufficient cause" implies a 20 standard where the Applicant must demonstrate that the failure to comply with procedural rules was not attributed to them or that they were not in default.

Counsel further submitted that the Applicant has not demonstrated how his wife's illness prevented him from instructing his lawyers to file a 25 defence. That the Applicant never informed the process server that he was attending to his wife nor do the hospital documents establish that he was personally there or that it was his wife that was ill. That in the absence of such evidence, the argument of illness appears to be an afterthought.

Further, Counsel submitted that it is on record that the process server 30 sent the Applicant a WhatsApp message on 29th April, 2024 inquiring on

- 5 his whereabouts so that he could serve him physically. That this was received and it is confirmed by the double blue ticks but the Applicant only replied on 2nd May, 2024 instructing the process server to effect service on his lawyers yet by then the process server had already filed an affidavit of service on 30th April, 2023 as service via WhatsApp had been successfully 10 completed. Counsel further contended that the delay in the communication by the Applicant demonstrates a lack of diligence in - addressing Court process and therefore, the Applicant's argument regarding confusion due to the process server's request to meet physically was also an afterthought aimed at delaying the proceedings. - 15 In conclusion, Counsel for the Respondent submitted that service of summons was duly effected via WhatsApp within 21 days and this was duly acknowledged by the Applicant. Further, that the Applicant has not demonstrated any sufficient cause to justify setting aside the default judgment as the reasons advanced in support of the application are 20 unconvincing and speculative.

# Applicant's submissions in rejoinder

Counsel for the Applicant reiterated his previous submissions and went on to contend that the Applicant attached the medical evidence to prove that his wife was hospitalized and even gave birth and that it was 25 unnecessary for the Applicant to disclose every detail to a stranger who had introduced himself as Allan of Commercial Court yet his number belonged to a one Niwagaba Nicholas.

Further, that the process server who swore the affidavit of service did not actually serve and therefore, the affidavit of service and the affidavit in 30 reply are full of falsehoods. That besides, the real person who went ahead

- 5 and proposed that they meet physically so as to effect service was given the Applicant's lawyer's details for service of the Court documents but this was not complied with. In conclusion, Counsel for the Applicant reiterated that the Applicant has a good defence and therefore, the application should be allowed. - 10 Analysis and Determination

#### **Order 9 rule 12 of the Civil Procedure Rules** provides that:

*"Where judgment has been passed pursuant to any preceding rules of this Order, or where judgment has been entered by the Registrar in cases under Order L of these rules, the Court may set aside or vary* 15 *the judgment upon such terms as may be just."*

In the matter at hand, the Applicant avers that he is willing to defend the Civil Suit and that he was unable to instruct his lawyers in time since he was nursing his pregnant sick wife as evidenced by annexure **"B",** the discharge form of Atukunda Barthan who was admitted on 15th April, 2024 20 and discharged on 20th April, 2024. However, according to the postnatal discharge form also marked as annexure **"B"** Atukunda Barthan gave birth on 13th March, 2024 and was discharged on 15th March, 2024. Therefore, I agree with the submissions of Counsel for the Respondent that this is just an afterthought.

25 The Applicant also contended that he delayed to instruct his lawyers to file because, the process server had intimated to him that service was to be physical to which he gave him his lawyers address but the process server never effected the service. In reply, the Respondent averred that by the time the Applicant sent those instructions, the process server had already 30 filed the affidavit of service.

5 Further, having held above that the summons in Civil Suit No. 425 of 2024 were not effectively served onto the Applicant, in my opinion, there is just cause to set aside the default judgment that was entered in **Civil Suit No. 425 of 2024** in the interest of justice.

Issue No. 2 is answered in the affirmative.

10 Issue No. 3: What remedies are available to the parties?

Having held above that there is just cause to set aside the default judgment in **Civil Suit No. 425 of 2024**, this application is granted with the following orders:

- 1. The default judgment in **Civil Suit No. 425 of 2024** entered against 15 the Applicant is hereby set aside. - 2. The Applicant is ordered to file his Written Statement of Defence within fourteen (14) days from the date of this Ruling. - 3. The Respondent shall file a reply to the Written Statement of Defence 20 within fourteen (14) days from the date of receipt of the Written Statement of Defence. - 4. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered electronically via ECCMIS this **26th** day of

25 **November**, **2024.**

Patience T. E. Rubagumya **JUDGE** 26/11/2024 30 6:40am