Nsubuga v Kawuulu Maize Millers SMC Ltd (Civil Appeal 101 of 2023) [2024] UGCommC 371 (12 December 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL APPEAL NO. 101 OF 2023 (ARISING FROM NABWERU MISC. APPLICATION NO. 29 OF 2023)** 10 **(ALL ARISING FROM CIVIL SUIT NO. 32 OF 2022) NSUBUGA SULAIT :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS KAWUULU MAIZE MILLERS SMC LTD ::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### 15 **JUDGMENT**

#### Introduction

The Appellant, Nsubuga Sulait, aggrieved by the decision and orders of **Her Worship Ahurira Praise**, Magistrate Grade 1 in **Miscellaneous Application No. 29 of 2023**, arising out of **Civil Suit No. 32 of 2022** at the Chief Magistrate's Court of Nabweru at Matugga delivered on 2nd 20 October, 2023, filed this appeal on grounds that:

1. The Learned trial Magistrate erred in law and fact when she held that service via WhatsApp without leave of Court was proper service.

25 2. The Learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thus reaching a biased and wrong decision that occasioned a miscarriage of justice.

3. The Learned trial Magistrate erred in law and fact when she held that the execution could not be stayed since it was partially done.

30 4. The Learned trial Magistrate erred in law and fact when she held that the Appellant was never duressed.

5 The Appellant seeks orders of this Court that the appeal be allowed, the orders of the lower Court be set aside, the Appellant be allowed to appear and defend *Civil Suit No. 032 of 2022* and costs of the appeal be provided for.

#### Background

- 10 The brief background of this appeal is that the Respondent sued the Appellant summarily under **Order 36 of the Civil Procedure Rules** vide *Civil Suit No. 32 of 2022* seeking recovery of the contract debt of UGX 11,980,000/= (Uganda Shillings Eleven Million Nine Hundred Eighty Thousand Only) as money due and owing from the Plaintiff to 15 the Defendant, interest and costs of the suit. On 27th October, 2022, His Worship Nakibinge Latif Abubakar, Magistrate Grade 1, entered a default judgment against the Appellant herein on grounds that he had been duly served with the summons but he did not apply for leave to file his defence. - 20 The Appellant then filed *Misc. Application No. 29 of 2023* for orders that the Judgment and Decree in *Civil Suit No. 32 of 2022* be set aside, execution be set aside, leave be granted to him to appear and defend the suit, and costs of the application be provided for on grounds that he was not served with the hearing notices and had a strong 25 defence to the suit. On 2nd October, 2023, Her Worship Ahurira Praise dismissed the application with costs to the Respondent. Aggrieved by the said decision, the Appellant filed this appeal.

#### Representation

The Appellant was represented by **Counsel Musiimenta Sam** of **M/s**

30 **Obed Mwebesa & Associated Advocates** while the Respondent was represented by **Counsel Hanifa Nagayi** of **M/s Sanywa, Wabwire & Co.**

**Advocates**.

5 Both parties were directed to file their written submissions which they did and the same have been considered by the Court.

Duty of this Court

It is trite that as a first appellate Court, I am duty bound to re-appraise the evidence on record and come up with my own decision, not 10 disregarding the judgment appealed from and the fact that the trial Court had the opportunity to look at the demeanour of the witnesses which this Court does not have. (See: *Fr. Narsensio Begumisa & 3 Others Vs Eric Tibebaga SCCA No. 17 of 2002* and *Pandya Vs R [1957] EA 336).*

15 As stated in the case of *Fr. Narsensio Begumisa & 3 Others Vs Eric Tibebaga (supra):*

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal Court its own decision on issues of fact as well as of law. Although in a case of conflicting* 20 *evidence, the appeal Court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions."*

For the record, this Court has corrected the citation of the application 25 whose decision is being appealed against. According to the ruling, the application is cited as *Misc. Application No. 20 of 2022* yet the Notice of Motion and proceedings thereunder are cited as *Misc. Application No. 29 of 2023*. Considering that the ruling is in respect of the aforementioned application, this Court therefore corrects the record and 30 the application being appealed against is *Misc. Application No. 29 of 2023*.

5 Therefore, I shall proceed to re-evaluate the evidence on record.

Ground One: The Learned trial Magistrate erred in law and fact when she held that service via WhatsApp without leave of Court was proper service.

### Appellant's submissions

- 10 Counsel for the Appellant submitted that the Learned trial Magistrate relied on speculations about the service of summons through telephone contact. That the Respondent resorted to serving the Appellant via WhatsApp because he could not locate the Appellant yet when it came to executing the decree by arrest, the Appellant was conveniently found, 15 arrested, and threatened to be taken to civil prison if he had not signed - a consent acknowledgement.

While admitting that electronic service is allowed, the Appellant's Counsel contended that the Respondent should have attached screenshots of WhatsApp messages to the Appellant, which was not 20 done.

Counsel further submitted that the affidavit of service did not prove service even though service was alleged and that the service was not effective because the Appellant never saw the messages sent to him by the process server.

25 Respondent's submissions

Counsel for the Respondent submitted that **paragraph 7(1) of the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, 2019** allows the service of Court process through electronic means such as WhatsApp and that 30 the leave of the Court is unnecessary.

5 The Respondent also relied on the case of *Musumba Isaac Isanga Vs Quid Financials Ltd HCMA No. 139 of 2020* for the proposition that service through WhatsApp is acceptable service.

That the trial Magistrate in her ruling confirmed that through an affidavit of service sworn by Mpabuka Rogers on 7th October, 2022, the 10 deponent contacted the Appellant and served him via WhatsApp. That therefore, the service was proper and effective.

In conclusion, Counsel submitted that the Learned trial Magistrate rightly upheld that the service of Court process in *Civil Suit No. 32 of 2022* upon the Appellant herein via WhatsApp was proper service.

## 15 Appellant's submissions in rejoinder

In rejoinder, Counsel for the Appellant reiterated that according to the affidavit of service attached, it is impossible to establish if the double ticks on the WhatsApp messages were blue and that also the screen shot WhatsApp messages are not visible to establish what documents 20 were served by the process server.

Counsel submitted that if summons have not come to the Defendant's notice, then service is not effective since the primary objection of service of the summons is to make the Defendant aware of the suit against him/her. In conclusion, Counsel submitted that the alleged service was

25 not effective.

# Analysis and Determination

It is trite that in civil matters, the person who alleges must prove his or her contentions to the satisfaction of the Court on the balance of probabilities so as to obtain the remedies sought. (See: **Sections 101-**

30 **103 of the Evidence Act, Cap. 8**).

5 The use of electronic service of Court process is consistent with **Paragraph 7(1) of the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions** which provides that:

*"All parties shall, at all stages of the Court process and during trial,* 10 *use technology for purposes of information exchange."*

Furthermore, **Paragraph 7(2)(c)** thereof stipulates that:

"*In preparing a case for trial, the parties shall be specifically encouraged to serve documents electronically through email, instant messaging applications and any other widely used* 15 *electronic communications service."* [**Emphasis mine]**

Both parties are agreeable to electronic service of Court process however, the Appellant contends that since the screenshot of the WhatsApp message was not attached to the affidavit of service, it is impossible to establish if the double ticks on the WhatsApp messages 20 were blue; that the screen shot WhatsApp messages are not visible to establish what documents were served by the process server and that also the Respondent did not seek leave of Court to serve the Appellant through WhatsApp.

First of all, according to the Court record, the affidavit of service of 25 summons in *Civil Suit No. 32 of 2022* has a colored screen shot of WhatsApp messages attached to it and the attachments thereto are visible enough for one to establish that a summary plaint and its summons were sent to +256779357095. Therefore, the Appellant's contention that the Respondent did not attach a screen shot of the 30 WhatsApp messages or that the messages are not visible to establish what was served by the process server fails.

5 I am alive to the provisions of **paragraph 5(5) of the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions** which stipulates that the Court reserves the power to direct the parties to use information technology in appropriate cases. However, in the case of *Peace Barigye Vs* 10 *Rosemary Kizza Omamteker HCMA No. 2075 of 2022***,** it was stated that:

*"***The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions** *allow the service of Court documents through modern means of electronic* 15 *communication such as WhatsApp, electronic mail, telegram etc. Service of Court documents through electronic means shall be upheld by the Court where it is proved that service of these Court documents on the other party through the ordinary means under Order 5 rules 8 to 15 of the Civil Procedure Rules was not possible.* 20 *Service through a WhatsApp message or other related electronic means is not effective if there is no proof of delivery. Proof of delivery may be in the form of an actual acknowledgement of receipt by the addressee or an automated message confirming delivery of the court documents to the addressee. In the case of service through* 25 *WhatsApp, the display of double ticks on the sender's smartphone or other electronic gadgets is proof that the addressee has indeed received the Court documents."*

I have perused the affidavit of service deponed by Mpabuka Rogers dated 7th October, 2022, in which the process server narrated how he 30 tried serving the Appellant by going to his place of work with the help of a worker from the Respondent but was unable to find the Appellant there. That however, the worker gave the process server the contacts of the Appellant, which are 0779357095 and 0702716880, which the

5 process server used to call the Appellant, who told him to serve him via his WhatsApp number.

I have looked at the colored screenshot of the WhatsApp messages dated 1st September, 2022 which shows that the process server sent a copy of a summary plaint and summons to +256779357095 which is the 10 telephone contact that he was given. There were double ticks after the documents had been sent and a reply from the Appellant of *"Good morning ssebo"*. The proof that shows that indeed the Appellant read the messages is his reply of *"Good morning ssebo"* which he sent in response to the message from the process server.

15 More so, in the case of *Geoffrey Gatete and Another Vs William Kyobe SCCA No.7 of 2005*, the Supreme Court explained what amounts to effective service when it stated that:

*"The Oxford Advanced Learner's Dictionary defines the word "effective" to mean "having the desired effect; producing the* 20 *intended result". In that context, effective service of summons means service of summons that produces the desired or intended result. Conversely, non-effective service of summons means service of summons that does not produce such result. There can be no doubt that the desired and intended result of serving summons on* 25 *the Defendant in a civil suit 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 judgment."*

In the premises, since the Appellant sent a reply after the messages 30 were sent, it implies that he received and read the same thus making him aware of the suit that was against him, which as was held in the case of *Geoffrey Gatete and Another Vs William Kyobe (supra)*, 5 amounts to effective service. Therefore, the Appellant was duly and effectively served.

In the circumstances, I find that the Learned trial Magistrate did not error in law and fact when she held that service via WhatsApp was proper service. Therefore, ground one fails.

10 Ground Two: The Learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thus reaching a biased and wrong decision that occasioned a miscarriage of justice.

**Order 43 rule 1(2) of the Civil Procedure Rules SI 71-1** stipulates that:

15 *"The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds shall be numbered consecutively."*

To that end, ground two of the appeal, which reads that *the Learned*

- 20 *trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record, thus reaching a biased and wrong decision that occasioned a miscarriage of justice,"* is not concise. In my view, it is general and vague because it does not specify in what way and in which specific areas the trial Magistrate failed to properly evaluate the 25 evidence. It also does not set out the particular biased and wrong decision that was arrived at by the Learned trial Magistrate that occasioned a miscarriage of justice. It has been held in many cases that a ground of appeal must challenge a holding, a ratio decidendi, and specify points wrongly decided. (See the cases of *Celtel Uganda* - 30 *Limited T/A Zain Uganda Vs Karungi Susan Civil Appeal No. 73 of 2013 2021*, and *Ranchodbhai Shivabhai Patel Ltd and Another Vs Henry Wambuga and Another SCCA No. 06 of 2017).*

- 5 In the case of *Ranchodbhai Shivabhai Patel Ltd and Another Vs Henry Wambuga and Another (supra)*, the Supreme Court struck out a ground that did not specify in what way and in which specific areas the Learned Justice had failed to evaluate the evidence. In the premises, ground two is hereby struck out. - 10 Ground Three: The Learned trial Magistrate erred in law and fact when she held that the execution could not be stayed since it was partially done.

## Appellant's submissions

Counsel for the Appellant submitted that the trial Magistrate erred in 15 law and fact when she found that the execution could not be stayed since it was partially done. That the trial Magistrate did not consider the Appellant's concern of having been threatened to sign the consent or else he would be taken to civil prison.

Counsel contended that the trial Magistrate held that the same 20 allegation is not seen on the Court record, yet the Appellant was never allowed to defend the civil suit. That therefore, the trial Magistrate took it upon herself as if she was handling an appeal.

### Respondent's submissions

Counsel for the Respondent submitted that the Respondent, being the 25 successful party in *Civil Suit No. 32 of 2022*, obtained a warrant of arrest in execution and a warrant of committal of the Appellant to civil prison on 8th May, 2023, and on the same day, the judgment debtor (now Appellant) and the judgment creditor (now Respondent) entered into a consent agreement wherein the Appellant paid UGX 5,000,000/= 30 out of the decretal sum, which to the Respondent meant that execution in *Civil Suit No. 32 of 2022* had already commenced.

- 5 Counsel also submitted that given the fact that the Appellant and the Respondent entered a consent agreement wherein the Appellant made a partial payment of the decretal sum at execution, the Appellant's application for an order of stay or setting aside execution had been overtaken by events as the execution was partially done. - 10 On this issue, Counsel for the Appellant did not make any submission in rejoinder.

### Analysis and Determination

Execution by way of arrest and detention is provided for under **Section 40 of the Civil Procedure Act, Cap. 282**. **Section 40(3)** thereof 15 stipulates that:

*"(3) Where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform the judgement debtor that he or she may apply to be declared an insolvent, and that he or she will be discharged if he or* 20 *she has not committed any act of bad faith regarding the subject of the application and if he or she complies with the law of insolvency for the time being in forc*e."

I have looked at the proceedings of the lower Court and there was no application for bankruptcy by the Appellant.

25 It was also evident that the decree was partly performed, and an arrest as a mode of execution was made with the subsequent committal to civil prison, which did not take place because the parties entered into a consent agreement and the Appellant paid UGX 5,000,000/=, which was acknowledged by the Respondent. In my view, this meant that the 30 application for stay of execution had been overtaken by events.

5 I have also observed that the Learned trial Magistrate declined to stay execution because it had already commenced and not because it was partially done as was contended by the Appellant.

In the premises and in view of the above, ground three fails.

Ground Four: The Learned trial Magistrate erred in law and fact when 10 she held that the Appellant was never duressed.

## Appellant's submissions

Counsel for the Appellant contended that the consent agreement between the parties clearly states that; "on 8th May, 2023, Nsubuga Sulait, having been in custody, has consented and agreed that he owes 15 the Plaintiff UGX 14,758,000/=" which to Counsel defined the state of mind the Appellant was in and that the alleged consent agreement bears no witness which justifies the circumstances it was entered into. That therefore, the Appellant executed the consent agreement under duress.

### Respondent's submissions

- Counsel for the Respondent referred to the **Black's Law Dictionary, 8th** 20 **Edition on page 542** for the definition of "duress" to include a threat of harm made to compel a person to do something against their will or judgment. Counsel further submitted that duress vitiates a contract; however, the Appellant must prove that unlawful force was applied to - 25 him or her. Counsel referred to the case of *Esther Nakulima Vs Ann Nandawula Kabali HCMA No. 235 of 2013,* for the proposition that it is necessary for the Applicant who relies on the ground of duress to prove that unlawful pressure was applied on him or her so as to lose his or her free will. That threat of the Court process cannot be unlawful 30 pressure and is always exerted by the litigants to threaten anybody they claim is in breach of the law to comply with their demands or else face

5 the due process of the law. That consequently, it is necessary to establish by evidence that the force of threat or pressure which was applied was unlawful pressure and that, as a consequence thereof, the Appellant lost her free will.

The Appellant did not submit on this issue in rejoinder.

#### 10 Analysis and Determination

According to the **Black's Law Dictionary, 9th Edition, page 579**, duress is broadly defined as a threat of harm made to compel a person to do something against his or her will or judgment, especially a wrongful threat made by one person to compel a manifestation of 15 seeming assent by another person to a transaction without real volition.

#### On **page 578**, the **Black's Law Dictionary** further states that:

"duress *consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, or child, and it must be inflicted or threatened by the other* 20 *party to the contract, or else by one acting with his knowledge and for his advantage." William R. Anson, Principles of the Law of Contract 261-62 (Arthur l. Corbin ed., 3d Am. ed. 1919).*

# In the case of *Rose Nanfuuma Muyiisa Vs Ruth Kijjambu HCCS No. 651 of 2013,* **Hon. Justice B. Kainamura** stated that:

25 *"Further, for it to amount to duress*, *the threat has to be illegitimate and the threat is always "illegitimate" if it is to do an unlawful act. Therefore threatening to do a lawful act does not amount to duress*."

Court went on to hold, in the above case, that the fact that the Plaintiff was arrested twice and promised Police bond if she signs a 30 memorandum of understanding cannot be said to be unlawful pressure

5 and the Plaintiff cannot be said to be coerced into signing the memorandum with the promise of being set free."

In the matter at hand, the Appellant contended that he was under duress when he was threatened to be taken to civil prison if he did not sign the consent agreement and that for fear of prison, he signed the 10 said consent acknowledging the decretal sum and also made a partial

- In light of the above authorities, in my view, this does not amount to duress since duress is associated with an unlawful action yet being committed to prison was the sole essence of execution by way of arrest 15 and detention. In the circumstances, threat of committal to prison with - a valid warrant of arrest while proceeding under arrest and detention as the mode of execution, does not amount to duress. - Also, the Appellant did not adduce factual proof of the unlawful force that had been applied to him. Moreover, as a general rule, a threat of 20 civil proceedings or bankruptcy proceedings does not amount to duress. The question whether imprisonment or threatened imprisonment does or does not constitute duress depends upon whether the imprisonment is lawful or unlawful. - It follows therefore, that a threat of civil proceedings which were in 25 motion and imprisonment, which was the next step after a warrant of arrest, which makes it lawful, does not impute duress in the circumstances.

In the premises, ground four fails.

payment of UGX 5,000,000/=.

# 5 Conclusion and orders

In the circumstances and in view of the above findings, I uphold the ruling of Her Worship Ahurira Praise in *Miscellaneous Application No. 29 of 2023 arising from Civil Suit No. 32 of 2022* which was delivered on 2nd October, 2023. This Appeal is therefore dismissed. The 10 costs of this appeal and in the trial Court are hereby awarded to the Respondent.

It is so ordered.

Dated, signed and delivered electronically via ECCMIS this **12th** day of **December, 2024**.

Patience T. E. Rubagumya

**JUDGE** 12/12/2024