Mugambe v Ssensalire & Another (Miscellaneous Application 2832 of 2023) [2024] UGHCLD 190 (18 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO 2832 OF 2023 (Arising from HCCS No.914 of 2018) MUGAMBE STEPHEN ::::::::::::::::::::::::::::::::::: APPLICANT VERSUS 1. ERNEST SSENSALIRE SEMAKADDE 2. MRS. NADDAMBA LOYCE GALABUZI ::: RESPONDENTS**

**(Administrators of the Estate of the late G. GALABUZI)**

# **BEFORE; HON LADY JUSTICE NALUZZE AISHA BATALA RULING**

## *Introduction;*

This is an application by Notice of Motion brought under Order 9 rules 12 and 27 and Order 46 rules 1, 2, & 8 Civil Procedure Rules 1, 2 and 8 CPR, Section 82 and 98 of the Civil Procedure Act Cap 71 for orders that;

- i) The Ex-parte judgement and decree in Civil Suit No. 914 of 2018 entered against the Applicant be reviewed and set aside; - ii) The status quo existing before the ex-parte judgement dated 2nd March 2021 be restored with the Applicant as the registered proprietor of the suit land comprised in Busiro Block 405-406 Plot 106 at Bukasa, Wakiso District. - iii) That the costs of this Application be provided.

Applicant's evidence;

The grounds of the Application are contained in the Application and supporting Affidavit of the Applicant which briefly states as follows;

- i) That the Applicant is aggrieved by the judgement/decree entered by Hon. Justice David Batema on 2nd day of March, 2021 in Civil Suit No.914 of 2018. - ii) That there is a mistake or error apparent on the face of the record as court proceeded ex-parte without proof of service unto the Applicant of the summons to file a defence together with the plaint or hearing notice in Civil Suit No.914 of 2018 of the High Court of Uganda at Mukono or High Court Land Division. - iii) That owing to the non-service of summons to file a defence and/ or the hearing notices, the Applicant was deprived of the right to a fair hearing before being condemned to pay the Respondents general damages of Ug shs 45,000,000/= and cancellation of his registration on land comprised in Busiro Block 405-406 Plot 106 at Bukasa which occasioned travesty of justice. - iv) That there's sufficient cause for reviewing and setting aside the judgement/ decree. - v) That he received summons to file a Defence dated 21st August 2019 and a Plaint in respect of Civil Suit No.914 of 2018 of the High Court of Uganda at Mpigi which he acknowledged.

- vi) That because he did not have a lawyer by then, he personally prepared his defence and filed it in High Court Mpigi. - vii) That he realized that his special certificate of title was cancelled and replaced with another special certificate of Title issued by Commissioner Land Registration on orders arising from the Judgement of Mukono High Court in Civil Suit No.914 of 2018. - viii) That upon inquiry at the Mukono High Court registry, the Applicant was told that a case relating to land in Wakiso could not be handled by High Court Mukono so he was advised to check with High Court Kampala Land Division and indeed he discovered the suit was in Kampala at the Land Division. - ix) He later came to realize that Civil Suit No.914 of 2018 had been decided on the 2nd day of March 2021 by Justice David Batema when the Applicant had not filed a defence.

## *Respondent's evidence;*

The respondent opposed the application through an affidavit in reply sworn by Mrs. Naddamba Loyce Galabuzi the 2nd Respondent herein.

i) She stated that the Respondents filed Civil Suit No.11 of 2018 in the High Court of Mpigi. The matter was then transferred to High Court Kampala (Land Division) were it became Civil Suit No.914 of 2018. that court ordered the Respondents to serve

the Applicant afresh with summons to file a defence which they did and the Applicant acknowledged receipt of the same but the Applicant never filed a written statement of defence and the suit was set for hearing.

- ii) That a visiting judge from Mukono in a session was given the case and he made his final judgement hence the heading "In the High Court of Mukono". - iii) That the applicant was duly served and acknowledged receipt of the Summons to file a defence.

The Applicant filed an Affidavit in Rejoinder and stated that the court documents he was served with by the Respondents were in respect of Civil Suit No.914 of the High Court of Mpigi and nothing from High Court Kampala. That in the absence of hearing notices, there's no way he would have known that the suit had been transferred from Mpigi to High Court Kampala.

## **Representation;**

The applicant was represented by Kizito Kasirye of M/S Tumwebaze, Kasirye & Co. Advocates whereas the respondents were represented by Kyakwa Ruth of M/s Luganda, Ojok & Co. Advocates. Both parties filed submissions which I have considered in the determination of this ruling.

#### **Issues for determination;**

i) Whether the Application discloses any grounds for setting aside the ex-parte judgement and decree?

#### ii) What are the remedies available?

#### **Analysis and Determination**

In the present application, the applicant states in Paragraph 5-8 that he was served with summons to file defence dated 21st August 2019 and the Plaint in respect of Civil Suit Suit No.914 of 2018 of "*The High Court of Uganda at Mpigi"* and he received the same and went ahead to personally prepare his written statement of Defence which he filed in High Court of Uganda at Mpigi. He was then informed by the clerk at the court registry that since he was the defendant, the Plaintiffs now respondents would serve him with hearing notices.

Counsel for the applicant further submitted that the applicant appears as the Defendant in Civil Suit No.914 of 2018 in the judgement of the High Court of Uganda at Mukono which was delivered by Hon Justice Batema David on March 2nd 2021.

That the extracted decree on the court file of the High Court of Uganda at Kampala (land Division) with the same suit No.914 of 2018 also named the applicant as the Defendant.

Counsel further submitted that the Trial Judge ordered for immediate cancellation of the applicant's Certificate of title for land comprised in Busiro Block 405-406 Plot 106 at Bukasa and replaced it with the Respondent's and ordered the applicant to pay 45,000,000/= as general damages.

Counsel submitted that the applicant was never served with summons to file a defenc for any suit in the High Court of Mukono or Kampala (Land Division).

That there's no evidence on court record confirming that Civil Suit No.914 of 2018 of the High Court Mpigi was ever transferred to Mukono High Court or High Court Kampala and/or that the Applicant was ever notified of the said transfer through service unto him of subsequent hearing notices.

Counsel for the Respondents replied to the Applicant's submissions and submitted that the Applicant's major ground for reviewing and setting aside the judgement is that he was never served with court process. Counsel submitted that as stated in the Respondent's Affidavit in Reply, the Applicant was served and received the same and that the Applicant was effectively served and was aware of the suit at all material times. Counsel further submitted that there was no written statement of defence on court record.

Order 9 rule 27 of the CPR provides; "Setting aside decree ex-parte against defendant. In any case in which a decree is passed ex-parte against a defendant, he or she may apply to the court by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also."

**Order 9 rule 27 of the Civil Procedure Rules** (supra) lays down the procedure for setting aside an ex-parte judgment. This nature of Application requires that the court be satisfied that: - i) The Applicant was not duly served with summons. ii) The Applicant has furnished sufficient cause to set aside the judgement of the court.

In the instant Application, the Applicant states that he was not served with summons to file a defence in Civil Suit No.914 of 2018 in the High Court of Mukono/ In the High Court of Uganda at Kampala (Land Division)

Effective service of summons means service of summons that produces the desired or intended result which 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 judgement. (See; **Geoffrey Gatete & Anor v William Kyobe, SCCA No. 7 of 2005**).

The court in this case has the duty to investigate and also make a finding as to whether the Applicant was duly served with hearing notices for those particular dates as was held in the case of **Gahire David Vs Uwayezu Immaculate Civil Appeal No. 34/2008.** The defendant

who does not file a defence cannot be heard and can only challenge an ex-parte judgment entered against him or her by an application to set aside the ex-parte judgement**. (See**

# **Kateeba v Kanyehemye [1988-90] HCB 125).**

In the instant case, the confusion of service arises from the Heading on the Summons to File a Defence and the Plaint served on the Applicant.

According to the applicant's Annexure B which is a summons to file a Defence dated 21st August,2019, they are titled "**In the High Court of Uganda at Mpigi"**. The Applicant filed his Written statement of Defence which he attached as annexure C at the High Court of Uganda at Mpigi and it was received a indicated by the stamp dated 14th day of September, 2019.

It seems to me that since the applicant received summons from the High Court of Uganda at Mpigi, he filed his written statement of Defence in the same court that had issued the same summons.

The Respondents stated in their submissions that the High Court of Mpigi was an error and it was cancelled *"in pen"* to include Kampala. However, this cannot be visited on the Applicant who was the defendant in Civil Suit No. 914 of 2018.

The respondents allege that the defendant was informed by the process server that the suit was at the High Court Land Division.

I have perused the affidavit of Kojjo Noah the process server attached on the affidavit in reply and marked

annexure "J" and I don't find any statement to the effect that the process server explained to the respondent that the suit was at the Land Division.

The Applicant diligently filed his written statement of defence in the High Court of Mpigi as the summons had required. Since the Applicant had not been informed by the Respondents that the suit had been transferred from High Court of Uganda holden at Mpigi to Kampala (Land Division) and having been served with summons and a plaint from High Court Mpigi, through no fault of his own he filed his written statement of Defence in the wrong court circuit.

All evidence points to the fact that the Applicant intended to defend this suit but was misled by the Respondents and partly by the court registry at Mpigi for having received his document when the suit had been transferred.

The respondents alleged inordinate delay on part of the applicant. That the judgment having been passed on the 2nd day of March 2021, the applicant is guilty of dilatory conduct for bringing this application after the commencement of execution proceedings.

An application to set aside an ex-parte judgment should be brought within reasonable time. A period of more than a year is deemed an inordinate delay. **(See; In Re Dhabulo [1977] HCB 75)**

It was submitted for the respondents, that the applicant by his paragraph 10 of his affidavit in support of the

application indicates he got to know of the judgment in 2022.

On my reading of the paragraphs 10, 11 and 12 of the affidavit in support of the application, the applicant stated that towards the end of 2022 he noticed he was no longer the registered proprietor of Land comprised in Busiro Block 405-406 Plot 106 at Bukasa as a result of orders arising from Civil Suit No. 914 of 2018. The applicant filed the instant application around 12th September, 2023.

In paragraph 20 of the affidavit in rejoinder, the applicant clarifies that he discovered about the cancellation in December 2022 and it also took him sometime to verify the orders which were based on to cancel his title. In my view I find the delay by the applicant excusable.

From the above therefore, I find that the Applicant has established sufficient cause to have the ex-parte Judgment set aside. Court is not satisfied with the way the Applicant was served. I cannot conclude on whether this was an innocent mistake on the side of the Respondents or whether it was intended to divert and keep the applicant away from filing his defence in the right court. However, I find that it is in the interests of justice that the ex-parte judgment be set aside and the suit proceeds on its merits. Based on all the above, in the interest of justice, the Application is allowed, the ex-parte Judgment is set aside and the suit be set down for hearing on its merits interpartes.

It is hereby ordered that;

i) The Ex-parte judgment in Civil Suit No. 914 Of 2018 and all orders made thereunder are hereby set aside.

ii) The status quo existing before the Ex-parte Judgment dated 2nd March 2021 is hereby restored with the Applicant as the Registered Proprietor of the suit land comprised in Busiro Block 405-406 Plot 106 at Bukasa, Wakiso District.

iii) The Applicant should be served with the plaint and summons to file a Defence within 15 days from the date of this Ruling and he should reply within 21 days.

iv) Thereafter, the suit shall follow due process and shall be fixed for hearing inter partes.

v) Costs be in the cause.

### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

## **18/07/2024**