Muhwezi v Tirwakunda and 34 Others (Miscellaneous Application 15 of 2023) [2024] UGHC 1236 (28 November 2024)

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

#### **MISCELLENEOUS APPLICATION NO. 0015 OF 2023**

### **(Arising from Civil Suit No. 0038 Of 2022)**

**MUHWEZI JAMES**::::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANT**

### **VERSUS**

| 1. | TIRWAKUNDA DEZI | |----|-------------------------| | 2. | BEINE HENRY BYAMBASA | | 3. | RUHANGASIIMWE JOHNBOSCO |

- **4. FR. JOHN BYAMUKAMA** - **5. MAGEZI EDWARD** - **6. TURYASHEMERERWA PAULINO** - **7. TWINOMUGABE VINCENT** - **8. NKWASIBWE JOSEPH** :::::::::::: **RESPONDENTS** - **9. TAHUNGWA DEUES** - **10. MBABAZI FRED** - **11. TUKESIGA ATHANASIAS** - **12. ATHHEIRE AGNES** - **13. KENEEMA EDGA** - **14. BYARUHANGA STEPHEN** - **15. NTAMBIRWEKI ISAAYA** T/A St. Mary's Bukinda - **16. TIBYABAKWE TELES** Parish, Catholic Traders - **17. BIRYOMUMEISHO GEREVA** Association (A community - **18. MUBANZI NDATA** Based Organization) - **19. TURYAMUREEBA ADRIAN** - **20. AINEBYOONA VENTRINO** - **21. TWINOMUGISHA TANA** - **22. BIRYOMUMEISHO CRASTABLE** - **23. KAMUGISHA TANA** - **24. BYAMBAASA ROGERS** - **25. NANKUNDA FRANCIS**

- **26. BUZABARYABO JOSEPH** - **27. FR. RUBANZA** - **28. RUSIMBIRA DENIS** - **29. TABAARO IZIDOL** - **30. TUMUKUNDE IGNITIUS** - **31. BUKINDA PARISH** - **32. SERINA ZIGABIRE** - **33. AGABA DENIS** - **34. KYOSHABIRE LYDIA** - **35. FR. EVARISTUS BAZIRAKE SUNDAY**

# **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Applicant brings the Instant Application by Notice of Motion under **Section 96** and **98** of the **Civil Procedure Act**, **Section 33** of the **Judicature Act** and **Order 9 Rule 12** and **27**, **Order 52 Rules 1** and **3** of the **Civil Procedure Rules** seeking orders that;

- i) The exparte Judgment/Decree in Civil Suit No. 0038 of 2022 delivered by this honourable Court be set aside and the main suit heard interparte and the dispute determined on the merits. - ii) The Applicant be granted leave to file his written statement of defence so that the matter is heard interparties. - iii) Execution of orders and decree in Civil Suit No. 0038 of 2022 be stayed/set aside. - iv) Provision be made for costs.

The grounds upon which this application is premised interalia is that the Applicant has never been served with the summons to file a defence in the main suit and that the Judgment and Decree in Civil Suit No. 0038/2022 is illegal, a nullity and ought to be set aside. That the Applicant has a good defence to the main suit as he is not indebted to the Respondents to the tune claimed.

That the Court entered the exparte Judgment in error having been misled by the Respondents that the Applicant had been served with the summons to file a defence whereas not because the Respondents know that the Applicant permanently stays in Kampala having separated with his wife in 2019 who is staying in Bukinda Parish in Rukiga District.

That it is in the interest of justice that this honourable Court sets aside the falsely obtained exparte Judgment and the resultant execution and allow the Applicant to file his written statement of defence.

The Application is supported by the affidavit of the Applicant who expounds on the grounds upon which this application is premised.

The 1st, 2nd 3 rd Respondents who hold powers of Attorney from the other 32 Respondents filed affadivits in reply to the application and interalia aver that the Applicant is not being truthful when he says he separated from his wife and that they live in the same Town Council with the Applicant and have been in the same Respondent group for over 8 years.

That the Applicant has always borrowed loans and used his wife to sign for him as a spouse and was duly served with Court process. That the Applicant's wife in signing the loan application became part of the loan process because the Applicant mortgaged their family property located in Muhanga Town Council. That the Applicant does not have a defence to the suit and it would be unjust and unfair if the application is granted.

The Respondent rejoined to the same averring interalia that the process server did not carry out any due diligence in effecting personal service upon him and yet the Respondents know his place of work and residence in Kampala.

# **Representation.**

The Applicant was represented by Messrs Elgon Advocates while the Respondents were represented by Messrs Muhangi Justus and Partners Advocates.

The parties in this matter proceeded by way of written submissions.

I do not find it necessary to reproduce verbatim the averments of the parties as contained in their affidavits nor the submissions of Counsel. It should suffice to note that I have studied the affidavits in great detail and perused the submissions.

## **Determination.**

**Order 9 Rule 27** of the **Civil Procedure Rules** under which this application is brought provides:

# **"***Setting aside decree exparte against Defendant.*

*In any case in which a decree is passed exparte against a Defendant, he or she may apply to the Court by which the decree was passed for an Order to set 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 suit…"*

The Supreme Court in **Departed Asians property custodian Board versus Issa Bukenya SCCA No. 0018 of 1991** held interalia that an application to set aside an exparte Judgment cannot succeed if no good or substantial reasons are given to justify setting it aside.

The thrust of the Applicant's argument for none appearance in the main suit is contained in paragraphs 3, 5, 6 and 7 of his affidavit in support of this application in which he avers that service of summons upon him was not effective because the same was served upon his wife who stays in Bukinda Parish in Rukiga District while the Applicant permanently lives in Kampala having separated with his wife in 2019. That the Applicant has now spent over 3 years without communicating to his wife ever since he relocated and went to settle in Kampala and all the Respondents are aware of this fact so it is not true that his wife called him informing him of the summons to file a defence to the suit.

The Applicant also avers that he has got a place of work and place of residence in Kampala well known to some of the Respondents but they didn't bother to go there and serve him personally as they never wanted him to know about the Court proceedings.

The first respondent in his affidavit in reply to the application avers that the Applicant was duly served with Court process and that he even talked to the Applicant and they later met at M/s Muhangi Justus and Partners Advocates where the Applicant pleaded with him not to proceed with the case. That the initial summons were served on the lawful wife of the Applicant with whom they have children and the family is well known to him and he is even a Godfather to their son. The first Respondent further avers that the Applicant fronted his wife when he was obtaining a loan from the Respondent and she even signed the application forms thus becoming part of the loan process because the Applicant loaned their family property located at Muhanga Town Council. He further avers that the Applicant is not being truthful when he alleges that he separated with his wife because as a close family friend he would have been privy to this occurrence. The 2nd and 3rd Respondents in their affidavits all maintain that the averments of the Applicant that he separated from his wife are all false.

**Order 5 Rule 10** of the **Civil Procedure Rules** provides that 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. While **Rule 13** of the said Order provides that where in any suit the Defendant cannot be found service may be made on an agent of the Defendant empowered to accept service or on any adult member of the family in charge of the property.

What amounts to effective service was determined in **David Ssesanga versus Greenland Bank Ltd (in liquidation) Miscellaneous Application No. 0406 of 2010** in which the Court held that effective service must produce the desired effect which is to make the Defendant aware of the suit.

As to which mode of service is effective in **Semuyaba Iga and Co. Advocates and another versus Attorney General** of the **Republic of Sudan and 2 others HC MA. No. 0004 of 2022** J. Mubiru observed that:

"*Therefore in determining whether or not service was effective Court looks at a plethora of factors interlia: the process server, the conduct of the adversary, the circumstances surrounding the service and the availability of the adversary to deduce whether service was effective or merely good"*

Applying the above test to the facts of this case, the Applicant by his own admission has relocated from the Jurisdiction of this Court and now lives in Kampala. It is therefore clear that the Applicant cannot be served in person without some sort of financial hardship which would require a process server travelling to Kampala. Furthermore, this Court notes that the Applicant has carefully concealed the details of his physical address in Kampala and has not made mention of the same if only to aid in future service(s).

The Applicant to mask his address makes a general statement that this address is known to some of the Respondents without again being specific as to which of the Respondents has this knowledge. Presumably this was calculated to avoid a rebuttal of the same by affidavit in reply by the Respondents. It would therefore appear that the physical address of the Applicant in Kampala was not known to the Respondents and this explains why the process server one Tumwesigye Obed attached to this Court guided by Local Council 1 chairperson for Muhanga Cell one Tumwebaze Elijah proceeded to Muhanga Cell, Muhanga Ward, Muhanga Town Council in Rukiga District to effect service upon the Defendant at his known residence on the 26/08/2022 as per his affidavit of service.

It is imperative to note that the Applicant has mortgaged this said security for a loan of UgX 64, 826,100/= with the Respondents.

I will return to this loan later in my ruling. The decision of the process server to effect service at the known residence of the Applicant cannot therefore be faulted. Furthermore, **Order 13 Rule 10** of the **Civil Procedure Rules** is explicit that where the Defendant cannot be found service can be made upon any adult members of the family in charge of the property. According to the affidavit of the process server he found the wife of the Applicant at the residence one Shallon Muhwezi and he introduced himself and explained to her the purpose of his visit and she called the Applicant her husband and got him informed and he served her with the Court documents which she accepted to receive but refused to acknowledge on his copy of the same, the wife of the Applicant is signatory to the loan application on which the house/residence is mortgaged.

She was therefore a person with vested interests in the suit and by law competent to receive the service of summons. I am not persuaded that the Applicant separated from his lawful wife and that this has been the case for the last three years. The 1st, 2nd and 3rd Respondents all aver that this is false with the 1st Respondent averring to be a close family friend to the Applicant and God father to his son. The Applicant has not presented a scintilla of evidence to this effect. I believe the separation is a work of fiction coined by the Applicant to mislead this Court. I accept the averments of the process server that when he effected service upon the Applicants wife she called him in his presence and informed him of the same.

I am therefore sufficiently satisfied that effective service of the summons was carried out by the process server.

In applications of this nature it is also imperative that the Applicant demonstrates that he has a defence to the suit as was laid down in **Tandijhera versus corporation Energo Project (1988 – 90) HCB 15** in which the Court held that:

*"In exercising discretion as to whether an exparte Judgment should be set aside or not, where there is a regular Judgment, the Court will usually satisfy itself that there is a defence in the merits before Judgment is set aside"*

Further consideration should be given to the decision of the **Supreme Court** in **Geoffrey Gatete** and **another versus William Kyobe SCCA No. 0007 of 2005** in which the Court held that;

"*The Defendant is not bound to show a good defence on the merits but should satisfy the Court that there was an issue or question in dispute which ought to be tried and the Court shall not enter upon the trial of issues disclosed at this stage"*

The claim of the Respondents against the Applicant is recovery of a loan issued to the Applicant amounting to UgX 64,826,100/= extended to the Applicant on the 14/04/2019. The suit proceeded exparte against the Applicant with Judgment being entered against the Applicant on the 02/05/2023 with the Court making a finding that the Applicant is indebted to the Respondents to the tune of UgX 64,826,100/=.

The Applicant has not in his application set forth a defence to the claim of the Respondents save for making general statements of denial. The Applicant has not in any mode demonstrated that he has a defence to the suit. It is now an established procedure that in cases of this nature where an Applicant seeks leave to file their written statement of defence a copy of the same is annexed to the application for consideration of the Court. The Applicant did not show any regard to this practice. It is therefore impossible for this Court to determine whether the Applicant indeed has any defence to the suit in order to exercise its discretion to set aside the exparte Judgment.

This Court cannot act upon speculations.

In regard to the order sought for stay of execution of this Courts orders the Court in **Andrew Kansiime Kananura versus Richard Kaijuka HC reference No. oo05** of **2016** held that:

*"A losing party who only springs in action when the successful party sets in motion the process of realizing the fruit of his or her Judgment cannot be allowed to use the Court to frustrate or delay the execution process.*

*There must be an end to litigation"*

I would not agree more.

It is my finding that the Applicant has not justified why this Court should issue orders for stay of execution.

In the final result I hold that he Applicant has failed to meet the legal test for grant of the orders sought.

The instant application is accordingly hereby dismissed with costs to the Respondents.

Before me,

………………………………….

**Samuel Emokor Judge 28/11/2024**