Paragon Real Estate Surveyors Limited & Another v Chemonges & 4 Others (Miscellaneous Application 363 of 2023) [2024] UGHC 289 (8 May 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## **MISCLLENIOUS APPLICATION NO.363 OF 2023**

### (ARISING FROM CIVIL SUIT NO.053 OF 2023)

1. PARAGON REAL ESTATE SURVEYORS LTD

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2. MASABA ISAAC :::::::::::::::::::::::::::::::::::

### **VERSUS**

- 1. AMU SIRAJI CHEMONGES - 2. SANANI EDWARD - 3. CHEPTEGEN MWANAISSA CHESARY - 4. SAKWA JOSEPH - 5. MUTELA WALLACE NGEYWO ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

## 1. Introduction

2. This application was brought by way of Notice of Motion under the provisions of section 33 of the Judicature Act Cap 13, section 98 of the Civil Procedure Act Cap 71, Order 9 Rules 12 & 27 and Order 52 Rules I & 3 of the Civil Procedure Rules SI 71-1 for orders that- the default judgment in Civil Suit No.053 of 2023 be set aside, the Applicants be granted leave to file a written statement of defence in Civil Suit No.053 of 2023 and costs for this application be provided for.

# 3. Background

4. The Respondents filed Civil Suit No.053 of 2023 against the Applicants seeking others that- the land comprised in Freehold Volume MBA 82 Folio 13 known as Plot 515 Block 2 at Chepnoibei/Kaibos measuring 64.2510 hectares belongs to the Respondents. They also sought for general damages, permanent injunction and costs of the suit.

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- 5. It is the Applicants' case that they were never served with any summons in Civil Suit No.053 of 2023 until the judgment was entered against them. However, the Applicants contend that summons were served to the Respondents but they chose not to comply. - 6. This application was supported by the affidavit of **KWEMOI EMMANUEL** the managing director of the $1st$ Applicant and briefly he states that - a. In August 2023, the Applicants received a call from somebody unknown to them, who told them that he had been sent by Justice Cheborion Barashaki to serve the deponent with summons in respect of the Civil Suit No.053 of 2023 and later when he called back the same number, nobody answered; - b. The deponent further took a step to call Justice Cheborion Barashaki who only informed him to attend a meeting at his home in Kaibos-Chepnoibe on the 27th and 28th August 2023 and court summons have never been served upon him to date; - c. To the deponent's surprise, the Respondents dishonestly after engaging him into several meetings with a sham spirit of amicably settling the case out of court went ahead and applied for a default judgment without disclosing the fact to court that they had agreed to withdraw the suit against the Applicants; - d. The Applicants were not personally served with the summons to file a defence although the Respondents invited them for a meeting in which they agreed to withdraw the suit on condition that the Applicants pay the Respondents a sum of Ugx $2,000,000/$ =; - e. It was to their surprise that the Respondents had not withdrawn the case but instead went ahead to move this Court to enter default judgment against them; - f. The Applicants were prevented by sufficient cause to file their written statement of defence.

- 7. This application was opposed by the affidavit of the $1^{st}$ Respondent **AMU SIRAJI CHEMONGES** who with authority to swear the same on behalf of the rest of the Respondents briefly states that - a. The Respondents filed Civil suit No.053 of 2023 against the Applicants in this Court seeking for orders that- the land comprised in freehold Vol MBA, 82 Folio 13 plot 515, Block 2 at Cheprioibel measuring 64.25 10 hectares belongs to the Respondents; - b. The summons and pleadings were served unto the Applicants by Dunstan Ivan Mpyangu a process server at Nappa & Co. Advocates; - c. In particular the $1^{st}$ Applicant, he was served on the $18^{th}$ August 2023 upon his direction via WhatsApp on his Mobile No.0774563623 in the names of Kwemboi Emmanuel and he acknowledged the same; - d. The 2nd Applicant was served on 24th August 2023 upon directing the process sever to serve him via his WhatsApp No. 077225942 and he acknowledged receipt of the same; - e. The Applicants after service of the said summons approached the Respondents after the lapse of fifteen days of filling a defense for an out of court settlement and they engaged them in the series of meetings; - f. There is no sufficient cause showed by the Applicants as to why they did not file the defence after the lapse of fifteen days and therefore this court should not set aside default Judgment. - 8. In rejoinder, **KWEMOI EMMANUEL** generally re-echoed his grounds in the affidavit in support.

## 9. Legal representation

Counsel Nappa Geoffrey together with Counsel Cheptowek Nancy 10. appeared for the Respondents while Counsel Tony Okwenyi appeared for the Applicants.

#### **Submissions** $11.$

12. At the hearing of this application both counsel were given schedules to file their respective written submissions and both counsel complied. This court will consider them in determination of this application.

#### **Analysis of court** 13.

- Counsel for the Applicants in his submissions framed three issues for this 14. courts resolution and they are- - (a) Whether the Default judgment in Civil Suit No. 053 of 2023 can be set aside? - (b) Whether the Applicants can be granted leave to file a written statement of defence in Civil Suit No. 053 of 2023? - (c) What remedies are available to the parties? - Issue No. 1: Whether the Default Judgment in Civil Suit No. 053 of 15. 2023 can be set aside? - Order 9 rule 12 of the Civil Procedure Rules SI-71 provides that; 16.

"Where judgment has been passed pursuant to any of the 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 the judgment upon such terms as may be just."

#### Order 9 rule 27 of the Civil Procedure Rules provides that; 17.

"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."

#### 18. In Christopher Nsereko and Another Vs Edward Ndawula Kaweesi **Court of Appeal Civil Appeal No.71 of 2015** at page 9, it was held that-

"the courts have attempted to lay down some grounds or circumstances which may amount to sufficient cause that *warrants setting aside exparte or default judgments and these* include among others, mistake by advocate, negligent, ignorance of procedure by unrepresented defendant, illness of the party but failure to instruct an advocate is not considered a sufficient ground.

- 19. The Applicants in the instant case averred under paragraph 14 of the affidavit in support that they were personally not served with the summons to file their defence. However, on the other hand, the Respondents under paragraph 4 of the affidavit in reply stated that the summons and pleadings were served unto the defendants/Applicants by Dunstan Ivan Mpyanga a process server at Nappa & Co. Advocates. - I have clearly looked at the affidavit of service which is annexure "B" to the 20. affidavit in reply and from paragraphs 7 to 14 the process server properly demonstrated how he visited the Applicants' offices. He described how the offices looked like and their locations. He added that when he reached the respective offices, he found the Applicants' secretaries who declined to endorse on his papers but gave him the telephone contacts of the Applicants whom he contacted and they asked him to serve them via WhatsApp. - 21. To buttress his averment, the process server further attached annexure "C" as proof that he indeed served the Applicants especiary the 2nd Applicant who received service via WhatsApp and he acknowledged receipt by replying with the word "**NOTED**". That reply by implication means that the $2^{nd}$ Applicant acknowledged receipt.

22. Paragraph $7(2)$ (c) of The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, **2019.** provides 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 electronic *communications service.*"

- 23. In the case of SBI Cards & Payments Services Pvt Ltd v. Rohidas Jadhav, High Court of Judicature at Bombay, Notice No. 1148 of 2015 **in Execution Application No. 1196 of 2015,** court held that service through WhatsApp had been effective, because the icon indicators on the App clearly showed that, not only was the message and its attachment delivered to the Respondent's mobile number, but that both were opened. Also see: **Musumba** Isaac Isanga v. Quid Financials Ltd, High Court Misc. Application No. 139 of 2020, - 24. From the court record, it is apparent that the $1^{st}$ and $2^{nd}$ Applicants are surveyors who worked together on the Respondents' land. That fact by necessary implication made them to be in touch with each other. So, direct service to the one of them would be obvious service to other. - 25. Secondly, the process server's averments regarding service of summons on the Applicants was further buttressed by Kwemoi Emma the 1st Applicant's director who stated in the affidavit in support under paragraph 11 that; "In August, 2023 I received a call from somebody unknown to me and told me that he had been asked to serve me with summons in respect of the Civil Suit No. 053 of 2023..." This statement accompanied with the evidence of the process server that he went to the $1^{st}$ Applicant's offices where he was given the $1^{st}$ Applicant's phone number, is sufficient to prove service. - Thirdly, section 5 rule 16 of the Civil Procedure Rules SI-71 provides that 26. "proof of service of summons is by an affidavit of service" which the Respondents clearly attached on their affidavit in reply.

- 27. Following the above discussion, I am satisfied that the Applicants were properly served with the summons to file their defence but decided to ignore the same. - It should be noted that this court is under a duty to prevent abuse of the 28. process of court. (See SCCA No. 8 of 2000 Non-Performing Assets Recovery Trust V. General Parts (U) Ltd) - 29. Issue No.1 is answered in the negative. - Issue No.2: Whether the Applicants can be granted leave to file a 30. written statement of defence in Civil Suit No. 053 of 2023? - 31. Having found that the Applicants were served with the summons and did not respond, leave to file their written statement of defence is accordingly not granted. - Issue No.3: **What remedies are available to the parties?** 32. - 33. In the view of the above findings, this application is accordingly dismissed and court makes the following orders- - (a) A default judgment entered on 11th of October, 2023 in Civil Suit No. 053 of 2023 is upheld. - (b) Costs are awarded to the Respondents.

I so order

LUBEGA JUDGE

DATE: 8th May 2024

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