Busingye v Mwesigye (Miscellaneous Application 108 of 2023) [2023] UGCommC 247 (7 June 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION] **MISCELLENEOUS APPLICATION NO. 0108 OF 2023** (ARISING FROM EMA NO. 344 OF 2022) (ALSO ARISING FROM CIVIL SUIT NO. 707 OF 2019) BUSINGYE HARRISON:::::::::::::::::::::::::::::::::::: **VERSUS**

NATHAN MWESIGYE RUBANGURA::::::::::::::::::::::::::::::::::::

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

This application is brought under Sections 98 of the Civil Procedure Act, Order 9 Rule 12, and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules S. I 71-1 seeking that the exparte judgment, order and taxed costs in HCCS No. 707 of 2019 be set; that HCCS No. 707 of 2019 be re-instated and heard on merits, and for costs of the application to be provided.

The Application is supported by the affidavit of Harrison Busingye, the Applicant and it was opposed by the affidavit in reply of Nathan Mwesigye Rubangura, the Respondent.

### Grounds of the application.

The grounds are briefly that the Respondent filed Civil Suit No. 707 of 2019 against the Respondent and obtained judgement without serving the Applicant. That the Applicant only learnt of it from a Notice to show cause in the newspaper, then immediately instructed his lawyers so he could file his defence and be heard. He avers that he has a good defence as he is not indebted to the Respondent. He added that he was not a party to the loan facility between the Respondent and Equity Bank; and also that the Respondent is not a money lender; and prayed that the Application be allowed so he can be heard.

In reply, the Respondent avers that upon filing the suit, the Applicant was served on the 266 day of September 2019 but he evaded service of the summons. That they proceeded by way of substituted service in an advert of 23'd January 2020. That the Applicant did not show up despite all efforts to serve him including phone calls, and that his affidavit in support is marred by falsehoods. That Court delivered judgment on 156 August 2022 where it was noted that the Applicant had been served through substituted service. That he chose to enter appearance only after seeing substituted service for Notice to show cause why execution should not issue. That the Applicant ousted himself out of the Court's jurisdiction when he failed to appear upon being served, and he refused to take any step in four years. He prayed that the application be dismissed with costs.

In rejoinder, the Applicant avers that the Respondent attempted to serve the summons when they had already expired without seeking for leave of court for extension of time. He added that he was never served by substituted service and that the alleged affidavit of service is defective as it does not bear the deponent's signature or the Court that issued it. Also that the newspaper advert of the summons does not show the newspaper and date on which it was advertised. In addition, that the application for substituted service was defective and illegal because there was no application to extend time within which to serve the summons, which had already expired.

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He added that the Respondent is his brother, who has always known his address and communicated with him but never served him with court process. That they have another case where they had been attending court and another administration cause where they attended court as a family but that the Respondent did not serve him and opted for substituted service. He concluded that the process which led to the Notice to show cause was marred by illegality.

#### REPRESENTATION

The Applicant was represented by lws Tuhimbise & Co. Advocates whereas the Respondent was represented by IWs ABNO Advocates and N{/s Mujurizi, Alinaitwe & Byamukama.

#### RULING

The main Issues for determination by this Court are:

- 1. Whether there was proper service of summons on the Applicant in civil Suit No. 707 of2019 - 2. Whether the Applicant has a good defence

## Issue 1: Whether there was proper service of summons on the Applicant in Civil Suit No. 707 of 2019

It was submitted for the Applicant that there was non- service of summons because there is no proof of any call made to the Applicant by a one Naika Edward as claimed in his affidavit of service annexed to the affidavit in rejoinder as B. He added that the summons purportedly served were expired as they had been issued on 30ft August and served on 276 September after they had already expired on 2 1\$ September and that there was no application for extension of time in total violation of Order 5 rules l, 2 and3 of the Civil Procedure Rules.

Counsel added that the parties are biological brothers who have always met in court over other matters and the Respondent has always served the Applicant, but he wants to misguide Court in this instant case that he served the Applicant whereas not. That he proceeded by way of substituted service in a newspaper with intent for the Applicant not to know about the summons and suit. He cited the case of Rwabuganda Godfrey V Bitamissi Namudu COA Civil Appeal No. 87 of 2010 where Court encouraged the insistence on personal service before other steps are taken to avoid or limit the abuse of court process. He added that substituted service is right but not effective therefore the Applicant was not served.

In reply, Counsel for the Respondent submitted that the Application is misleading as it seeks to set aside an exparte judgment against two Defendants, because a one Kagoro Herbert is the 2nd Defendant in Civil Suit No. 707 of 2019. He added that the decree against the 2"d Defendant has never been challenged, and that it remains valid as the claim against him was separate from that against the Applicant. He then said the application ought to have been to set aside part of the decree not the entire decree. He added that the summons which the Applicant claim were expired were not against him, but the 2nd Defendant who filed a defence out of time and the leamed Judge disallowed it before entering judgement.

He added that the Applicant was extremely evasive and refused personal servlce. That the affidavit (Al) shows that he was called through his two telephone numbers but he refused personal service, and that he has not denied that the numbers belong to him. Also that he is literate since he saw the newspaper advertisement for the Notice to show cause why execution should not issue, He relied on Order 9 rule l8 to submit that substituted service is effective service where it is impossible to serve personally. Further, Counsel admits that the parties are brothers and had matters together even before this Honourable Court but added

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that one of them was Originating Summons No. l4 of 20 l9 where Court declined to proceed due to the current Applicant's absence as even Signum Advocates no longer had instructions in the matter. Counsel also added that the Applicant has not attached any proceedings to prove that they appeared together in Court, and that the Applicant only chose to appear upon seeing the advert on Notice to Show cause yet parties ought to participate in proceedings especially of a civil nature.

In rejoinder, it was reiterated that the substituted service was illegal, void and of no effect having arisen out of an illegality as the Registrar had no jurisdiction to issue or renew summons which had expired without an application for leave to renew the same.

I have listened to the submissions by both Counsel and perused the application and affidavits accordingly and the following are my findings. Setting aside a default judgment is provided for under Order 9 Rule 12 of the Civil Procedure Rules which provides as follows:

"Where judgment has been passed pursuant to any ofthe preceding rules ofthis 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 the iudgment upon such terms as may be just. "

ln Geoffrey Gotete & Another V ll/illiom Kyobe SCCA No. 07 of 2015, although this was an appeal from a judgement in a summary suit, the Supreme Court considered ineffective service of summons and the fact that the Appellant had shown that they had a triable defence to allow an appeal to set aside judgment from the lower Court, and to give leave to appear and defend.

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Subsequently, this Court must determine whether there is just cause for setting aside the exparte judgment entered against the Applicant in Civil Suit No' 707 of 2019.

Before I even consider whether or not there was proper service of the summons on the Applicant, it is important to determine whether or not the purported service was proper as the Applicant claims that the said summons were already expired.

It is not disputed that the summons were issued on 30h August 2019 according to Annexure A to the affidavit in rejoinder. It was also confirmed by Naika Edward Gabula in annexure A1 to the Affidavit in reply, that it was on 26s September 2019 when he received instructions to serve summons to file defence on the Applicant and a one Kagoro, and that he immediately called them but the Applicant suggested they meet the following day but that they did not. A3 which is a supposed copy of the summons advertised in the newspaper shows that the summons were issued on the 17fr day of January 2020.

It is therefore apparent that the Registrar issued fresh summons without an application for extension of time within which to serve the summons that were originally issued on 30s August 2019. Service of summons is provided for under Order 5 Rule I sub-rule 2 that:

"service of summons issued under sub rule (l) of this rule shall be fficted within twenty-one days from the date of issue; except that the time may be extended on application to the court, made withinfifieen days after the expiration of the twentyone days, showing sufficient reasons for the extension. "

Further, under sub-rule 3, where summons are issued and not served within 2l days and no application made for extension with 15 days, or when the application has been dismissed, the suit is dismissed without notice.

sN In this instance, the summons were not served within the 2l days and neither was an application made for extension of time but also the matter was not dismissed. In Rwabuganda Godfrey V Bitamissi Namudu COA Civil Appeal No. 23 of 2009 in a similar situation where the District Land Tribunal had issued summons for substituted service without an application for extension of time, the Court of Appeal held that:

"the Land Tribunal had no jurisdiction to issue fresh summons to a party who had not complied with the provisions of Order 5 Rule 2 of the Civil Procedure Rules...... The Land Tribunal acted illegally when they issued summons/hearing notices in March 2005 without complying with the law. "

Specifically, in relation to the substituted service, the Court had this to say:

"The Land Tribunal erued when they entertained an application for substituted service and went ahead to order the issuance offresh summors in contravention of the law, and without jurisdiction. The order of substituted service was thus made without jurisdiction and was a nullity abnitio and was absolutely of no e/fect. The Land Tribunal was required by law to have dismissed the suit under Order 5 Rule (2) of the Civil Procedure Rules. It failed to do so. The exparte decree and Judgment of the tribunal that followed the substituted service were therefore also a nullity. The consequential orders made by the High Court set out above resulting from the decree ofthe Land Tribunal were also a nullity."

Similarly, in this case, the leamed Registrar did not have jurisdiction to issue the summons in Annexure A,3 to the affidavit in reply to the application without an application for extension, therefore, the resultant exparte judgment and order of execution which the Applicant now seeks to set aside are a nullity. I therefore find that this partly answers the question whether the substituted service was effective

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or not, although, the Court in the Rwabuganda Godfrey case (supra) held that substituted service is deemed effective if the party files a defence and that it is only deemed effective as long as it is not challenged; because when challenged, the presumption of service is rebutted. They cited the case of Geoffrey Gatete, Angella Maria Nakigonya versus ll/illiam Kyobe Supreme Court Civil Appeal No 7 of 2005 (unreported) where the Supreme Court held:

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"the court may order substituted service by way of publishing the summons in the press. Wile the publication will constitute lawful service, it will not Produce the desired result if it does not come to the defendant's notice. In my considered view, these are examples of service envisaged in 0.36 r.l I as "service (that) was not effective. " Although the service on the agent or the substituted semice would be "deemed good service" on the defendant entitling the plaintiff to a decree under O.i6 r.3, if it is shown that the service did not lead to the defendant becoming aware of the summons, the service is "not efective" within the meaning of 0.36 r. I I . (See Pirbhai Lalji vs. Hassanali. (1962.) EA 30O. "

In the instant case, in addition to the illegalities surrounding the issue of summons for the substituted service without an application for extension of time, the Applicant in paragraphs 4 and 5 ofhis affidavit in support ofthe application avers that he was not aware of the summons, and that he only became aware of the matter upon seeing the newspaper advert of the Notice to Show Cause why execution should not issue and I, therefore, find that the substituted service was not effective.

I have also considered the fact the parties are biological brothers and that the Respondent could have easily effected service on him or an any adult member of his family pursuant to Order 5 rule 13 as opposed to the substituted service which did not serve the purpose of service and was ineffective.

In conclusion, it is my considered opinion that there was no proper service of summons in Civil Suit No. 707 of 2019 on the Applicant, hence, it is just cause for setting aside the expartejudgement, order and taxed costs.

## Issue 2: Whether the Applicant has a good defence

Counsel for the Applicant submitted that paragraph 8 of the affidavit in support of the Application stating that the Applicant is not indebted to the Respondent and that neither was he party to the loan facility is a good defence. That the transaction was illegal. He also submitted that the Applicant has a constitutional right to be heard therefore he prayed that the application be allowed such that the Applicant is allowed to file his defence upon reinstatement of Civil Suit No. 707 of 2019.

In reply, Counsel submitted that despite denying indebtedness, the Applicant does not deny receiving the money in the exparte judgment attached to the affidavit in reply therefore that it would be unjust to keep the Respondent out of the whole amount of money. He concluded that the Application has no merit and should be dismissed but that if Court is pleased to grant it, the Applicant should be ordered to pay into Coun UGX 270 million plus USD 5000 so that he has interest in court matters.

In rejoinder, and in response to Counsel's request under Order 9 rule 27 on the deposit, Counsel submitted that it would amount to an injustice if the Applicant is directed to deposit such a huge sum of money for which he has no clue. He concluded by saying Court cannot sanction an illegality once brought to its attention. He also cited authorities to the effect that an exparte judgment is set aside where there was no proper service; and the case is heard on its merits. That since there is a pending suit in the High Court vide Miscellaneous Application No. 108 of 2023, the application should be allowed.

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I have listened to both Counsel and find that whereas the Respondent Counsel argues that the Applicant does not deny receiving the money in the exparte judgement, I find that this cannot stand because the Applicant did not file his defence and neither was he heard. This Court, therefore, cannot base on the said argument to determine whether or not the Applicant has a good defence because he clearly stated in paragraph 8 ofhis affidavit in support that he is not indebted to the Respondent and that neither was he a party to the loan facility agreement. These issues can only be settled when the Applicant is allowed to present his case and be heard. Therefore, I find that the Applicant may have a good defence ifit is proved.

Subsequently, I find this is a proper case where Seclion 33 ofthe Judicalure Acl Cop 13 can be invoked to resolve the dispute. It provides:

"The High Court shall, in the exercise of the iurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable clatm properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. "

Therefore, it is in the interest of justice that the Application be allowed and Civil Suit No. 707 of 2019 be reinstated so that the matter is determined on its merits.

In the premises, the application is allowed in the following terms:

1. The exparte judgement, Orders and taxed costs in Civil Suit No. 707 of 2019 are hereby set aside.

- 2. Civil Suit No. 707 of 2019 is hereby reinstated and the Applicant is directed to file his written statement of defence 15 days from the date of delivery of this Ruling. - 3. Costs of the Application to be in the main cause.

Mr. Batatan

HON. LADY JUSTICE ANNA B. MUGENYI DATED $\frac{1}{6}$ 23