Tusubira v Seroma Limited (Miscellaneous Application 3080 of 2023) [2024] UGCommC 331 (6 November 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **COMMERCIAL DIVISION**

#### MISC. APPLICATION NO. 3080 OF 2023

## ARISING OUT OF CIVIL SUIT NO. 0800 OF 2023

TUSUBIRA JOSEPH WAISSWA:::::::::::::::::::::::::::::::::

#### VERSUS

SEROMA LIMITED::::::::::::::::::::::::::::::::::::

## Before: Hon. Lady Justice Patricia Kahigi Asiimwe

#### **Ruling**

Introduction

- 1. This Application was brought under section 98 of the Civil Procedure Act and Order 36 Rule 11, Order 52 Rule 1 of the Civil Procedure Rules seeking that: - a) That court sets aside the default judgment and decree issued against the Applicant on the 12<sup>th</sup> day of September 2023. - b) That Court grants the Applicant unconditional leave to defend the suit. - c) Costs of this Application be provided for. - The grounds of the Application are that: $2.$ - a) The Applicant was never served with court process in Civil Suit No. 0800 of 2023 and the Affidavit of Service purportedly sworn by a court process server is full of falsehoods.

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- b) The Applicant has a plausible defence to the Respondent's claim. - c) The Respondent sued the wrong party and the Applicant intends to raise a preliminary objection seeking to strike out the suit against him. - 3. The Application was supported by an affidavit sworn by the Applicant Tusubira Joseph Waisswa who stated that: - a) He was not served with the summary suit and summons to file a defence in the suit, and therefore did not file an application for leave to appear and defend against the said claim. - b) He has never met a one Balyesiga Charles who states that he served him with the court process. - c) He has been advised by his lawyers that the suit does not disclose a cause of action against him since the Respondent has sued the wrong party. - d) The Respondent supplied maize to Watujo Agro Produce Limited, a limited liability company which is a separate legal entity. - e) That the Applicant is a director of Watujo Agro Produce Limited a company duly registered in Uganda which had business dealings for the supply of maize with the Respondents in the year 2022. - f) That he disputes the amount claimed and that Watujo Agro Produce has paid UGX. 65,000,000 and there is a balance of UGX. 88,000,000.

- $\overline{4}$ The Affidavit in reply was sworn by Mr. Mark Arnold Senabulya, a director of the Respondent, who stated that: - a) The Application is frivolous, incompetent, dilatory and an abuse of court because the Applicant was duly served with summons in the summary suit and was aware of all the court proceedings. - b) The Applicant was served with summons of the summary suit in person and through his WhatsApp number. - c) The Respondent transacted with the Applicant in person and at all times and he is personally liable to pay for the supplies made to him. - d) The Applicant seeks to evade paying the debt for supplies he took yet he undertook to pay for them. - 5. The Applicant filed an affidavit in rejoinder where he stated that: - a) He was never served with summons on WhatsApp, contrary to the claims made by Balyegisa Charles in his affidavit regarding service. - b) On 20<sup>th</sup> August 2023, when the process server claims to have served him via WhatsApp, his phone screen was broken due to a *boda boda* accident. He had since acquired a new phone and therefore did not have access to the earlier messages.

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#### Representation

The Applicant was represented by M/S Nyambane & Co. 6. Advocates, and the Respondent was represented by M/S Jamani Advocates.

#### Issues:

- 7. The issues for resolution are as follows: - I. Whether the application meets the grounds for setting aside the default judgement - II. Whether the Application meets the requirements for the grant of unconditional leave to appear and defend in the civil suit

#### Resolution

Issue 1: Whether the application meets the grounds for setting aside the default judgement in the civil suit

8. Under Order 36 Rule 11 of the Civil Procedure Rules it is provided as follows:

> After the decree the court may, if satisfied that the service of the summons was not effective, or for any other good cause, which shall be recorded, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit.

- Therefore, under the above provision court may set aside a $9.$ default judgment where the court is satisfied that the service of the summons was not effective or that the Applicant has sufficient reason. (See: Post Bank (U) Limited versus Abdu Ssozi, SCCA No. 08 of 2015). - 10. In the case of Geoffrey Gatete and Anor Vs. William Kyobe, Supreme Court Civil Appeal No. 7 of 2005, the Supreme Court


held that "... the desired and intended result of serving summons on 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."

- 11. In the present Application, the Applicant stated in his affidavit that he was never served with summons and has never met the court process server who alleges to have served him with the plaint and summons. The Respondent asserts that the Applicant was served with summons. - 12. In the affidavit of service, the process server states that the Respondent's lawyer gave him the Applicant's number and he called him on 22<sup>nd</sup> August 2023. The Applicant told him he was upcountry and would be back in Kampala in a week. The process server stated that after the phone call, he sent the Applicant the summons and plaint on his WhatsApp number. - 13. Paragraph $7(2)(c)$ of The Constitution (Integration of ICT into the *Adjudication Processes for Courts of Judicature) (Practice)* Directions, 2019 provides for electronic service of documents. This court has recognised service by WhatsApp as one of the ways in which summons may be served electronically. (See: **Male H** Mabirizi K. Kiwanuka Versus Attorney General Misc. Application No. 843 of 2021). - 14. I have looked at the WhatsApp chat between the process server and the Applicant which was attached to the affidavit of service. It shows that the summons and plaint were sent however there is no evidence that they were read. The Applicant did not respond to any of the messages thereafter and there are no blue ticks to confirm that the Applicant read the message. Currently, the only feature on the WhatsApp application that can prove that a party

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received and read a document is if there are two blue ticks on that message. The WhatsApp screenshot does not show any blue ticks. There is therefore no proof that the Applicant read the messages sent to him and that therefore he was made aware of the suit.

15. The process server also stated in the affidavit of service that he met the Applicant at Fido Dido on Kampala Road and the Applicant refused to acknowledge service. The Applicant on the other hand states that he has never met the process server. Under Order 5 Rule 14 of the Civil Procedure Rules, a person who is served with summons is required to acknowledge service. In this case, it is alleged that the Defendant refused to acknowledge service. There is no evidence to prove that the process server met the Applicant. Photographs taken at the said meeting or a recording of the meeting would have been useful in this case. I therefore find that the service was not effective. This issue is answered in the affirmative.

Issue II: Whether the Application meets the requirements for the grant of unconditional leave to appear and defend the civil suit

# 16. In the case of Makula Interglobal Trade Agency Versus Bank of Uganda [1985] HCB 65, the court held that:

Before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a bonafide triable issue of fact or law. When there is a reasonable ground of defense to the claim, the defendant is not entitled to summary judgment. The defendant is not bound to show a good defense 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.

17. In the case of **Kotecha v Mohammed [2002]1 EA 112** court held that:

> Where a suit was brought under summary procedure on a specially endorsed plaint, the Defendant would only be granted leave to appear if he was able to show that he had a good defence on merit, that a difficult point of law was involved, that a dispute existed as to the facts which ought to be tried, that a dispute existed as to the amount claimed *which required a taking of accounts or that there were other* circumstances showing reasonable grounds of a bona fide defence.

- 18. One of the triable issues raised by the Applicant is that the maize supplies were made to Watujo Agro Produce Limited as a company and not to him in his capacity as a director. The Applicant attached a certificate of incorporation, delivery notes and invoices in respect to supply of maize in the names of Watujo Agro Produce Limited. I find that there is a triable issue as to whether the right party was sued. - 19. The second issue raised is that Watujo Agro Produce Limited partly paid the outstanding monies leaving a balance of UGX. 88,582,800. The Applicant attached bank slips to prove that there was a part payment. There is therefore a dispute as to how much money is actually owed hence the need for the parties to reconcile their accounts. - 20. In the case of Asea Georges Aswa V Housing Finance Bank Ltd MA No. 952 of 2020, Rwakakoko J held that a reconciliation process can only be undertaken through a trial process and not through issuing a summary judgment.

- I therefore find that there are triable issues that warrant the 21. grant of unconditional leave to appear and defend the civil suit. This issue is answered in the affirmative. - In conclusion, therefore, the Application is allowed and it is 22. ordered as follows: - a) The default judgment entered in Civil Suit No. 0800 of 2023 is hereby set aside. - b) The Applicant is granted leave to appear and defend Civil Suit No. 0800 of 2023 - c) The Applicant shall file his written statement of defence in Civil Suit No. 0800 of 2023 within 15 days from the date of this order. - d) Miscellaneous Application No. 1653 of 2024 and Misc. Application No. 1654 of 2024 are overtaken by events and, accordingly, dismissed with no order as to costs. - e) Costs for this application shall abide in the cause.

# Dated this 6<sup>th</sup> day of November 2024

Patricia Kahigi Asiimwe Judge **Delivered on ECCMIS**