Court name
Commercial Court of Uganda
Judgment date
27 February 2013

Kazibwe v Uganda Post Ltd (Miscellaneous Application-2012/542) [2013] UGCommC 38 (27 February 2013);

Cite this case
[2013] UGCommC 38

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA AT KAMPALA

 

(COMMERCIAL COURT  DIVISION)

 

MISCELLANEOUS APPLICATION NO. 542 OF 2012

 

(Arising From Civil Suit No. 356 of 2010)

 

KAZIBWE JOHN:::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

 

VERSUS

 

UGANDA POST LTD ::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE: LADY JUSTICE HELLEN OBURA

 

RULING

 

This application was brought under Order 36 rule 11, Order 52 rules 1 and 3 of the Civil Procedure Rules (CPR) and Section 98 of the Civil Procedure Act for orders that:

  1. The Judgment and Decree entered in default for the plaintiff against the defendant in Civil Suit No. 356 of 2010 be set aside.
  2. Execution in Civil Suit No. 356 of 2010 be stayed.
  3. The applicant be granted unconditional leave to appear and defend the main suit.
  4. Costs of this application be provided for.

 

The grounds of this application are contained in the notice of motion. The first ground is that the applicant was never served with summons in summary suit and plaint. Secondly, that the applicant has a defence to the entire suit and is not indebted to the respondent. Thirdly, that there is a pending criminal case over the same matter which was filed before Civil Suit No. 356 of 2010. Lastly that it is in the interest of justice that this court allows the application.

 

The application is supported by an affidavit deposed by the applicant. He deposed inter-alia that he was duped by the respondent’s Managing Director to write and accept responsibility for loss of Shs. 90,000,000/= on condition that his suspension would be cancelled and he would continue with his job.

 

The respondent opposed the application based on the grounds stated in the affidavit in reply deposed by Mr. James Arinaitwe, the respondent’s Managing Director. He averred that the applicant accepted responsibility of his own volition without any promise by him to cancel the suspension and allow him to continue with his job.

 

The applicant filed an affidavit in rejoinder in which he denied service of summons and reiterated that he was duped by the respondent’s Managing Director. He also denied embezzling money as alleged.

 

The facts giving rise to this application are that a summary suit was instituted against the applicant by the respondent. The respondent claims to have effected service on the applicant who did not apply for leave to appear and defend the suit. Consequently, a default judgment and decree were issued in the respondent’s favour. The respondent proceeded to execute the decree and it is at that point that the applicant sought to have that process stayed.

 

When this matter came up for hearing Mr. Ndegwe Michael represented the applicant while Ms. Basaza Wasswa represented the respondent. Both counsel were directed by this court to file written submissions in the matter and thereafter the matter was set down for ruling.

 

The issues for determination in this matter are namely;

  1. Whether there was effective service of summons on the applicant/defendant.
  2. Whether the applicant can be granted the prayers sought in this application.

 

On the first issue, counsel for the applicant submitted that Order 36 rule 3 of the CPR requires summons to be served upon the defendant to enable him apply for leave to appear and defend the suit. He argued that the rules of service as contained in Order 5 rules 10, 11, 12, 13, 17 and 18 of the CPR dictate that ordinary service of summons must be made on the defendant personally unless it is impracticable to do so in which case the court has power to order that summons be served in the defendant in any of the extra ordinary modes of service prescribed in the Civil Procedure Rules. 

 

Counsel for the applicant argued that the respondent company is in possession of the applicant’s phone contacts and could have contacted him to serve him with the summons but refused to do so. According to him the service of summons was wholly ineffective.

 

In response, counsel for the respondent submitted that the service upon the applicant was effective because the applicant was served with the plaint and affidavit in Civil Suit No. 356 of 2010 in accordance with Order 5 rule 15 of the CPR. The respondent’s counsel argued that the process server used due and reasonable diligence before opting to affix the summons and plaint on the applicant’s door as stated in the affidavit of service.

 

In rejoinder, the applicant’s counsel submitted that the respondent had to satisfy court that at all material times, it was impracticable to serve the applicant with summons personally as legally required. According to him, the service was ineffective as the respondent had not discharged that burden.

 

I have analyzed the pleadings and the supporting documents filed in this matter. I have also addressed my mind to the submissions made by both counsel. Order 5 rule 15 of the Civil Procedure Rules provides;

 

“Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued with a report endorsed on it or annexed to it stating that he or she has so affixed the copy, the circumstances in which he or she did so, and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed.” (Emphasis mine)

 

In Eliakanah Omuchilo v Ayub Machiwa [1966] EA 229 Harris J. in referenceto a similar rule held that before a process server can validly effect service by affixing a copy of the summons on the premises, he must first use all due and reasonable diligence to find the defendant or his agent empowered to accept service; or any agent of the defendant in charge of the suit premises or any adult member of the family residing with him. It is only when, after using such diligence, none of them can be found that he can affix a copy of the summons on the premises, particulars of which should be given.

 

In the affidavit of service of Lukambi Denis, annexture “K2” to the affidavit in reply, I note that the process server unsuccessfully attempted to serve the applicant on four occasions. During all these attempts no efforts were made to inquire into the whereabouts of the defendant, his agents or any adult member of his household as should have been done. This is the kind of due and reasonable diligence that the process server ought to have done prior to affixing the summons on the applicant’s premises, whose particulars he did not even give.

 

In addition, it is also not clear if the process server indeed affixed those summons on the applicant’s house because his affidavit of service does not state the name and address of the person by whom the house was identified and who witnessed the affixing of the summons. This is contrary to Order 5 rule 15 of the CPR. Such an affidavit has been held to be defective. See: Matiasi Kanimba v S. Patel [1973] HCB 185.

 

In the case of David Ssesange v Greenland Bank Ltd (In Liqudiation) Misc. Application No, 406 of 2010 Madrama J. relying on the Supreme Court decision in Geoffrey Gatete and Angela Nakigonya v William Kyobe SC. Civil Appeal No. 7 of 2005 held that effective service means service having the intended or desired effect, which is to make the defendant aware of the suit.

 

I disagree with the respondent’s contention that the applicant was by virtue of service of summons on him in the manner described made aware of the suit and responded by making payments towards the respondent’s claim. This is because the applicant had made prior undertaking to make good the loss of money and so the payment could have been in fulfillment of that undertaking. Secondly, had the applicant been made aware of the suit, the desired effect would have been to seek the necessary leave to appear and defend the suit unless he had paid the entire sum claimed. For those reasons, I am of the firm view that the service made on the applicant was ineffective. The first issue is answered in the negative.

 

As regards the 2nd issue, that is, whether the applicant should be granted the prayers sought, counsel for the applicant made no specific submission to address the issue. However, the applicant stated in his affidavit in support that he was duped by the respondent’s Managing Director to accept responsibility for loss of Ug. Shs 90,000,000/= under threat of losing his job. The applicant referred this court to annexture “BB1” which he allegedly signed unwillingly.

 

Counsel for the respondent submitted that the applicant had not shown in his affidavit in support and in rejoinder that he has a defence to the respondent’s suit. She referred to paragraphs 5 and 8 of the affidavit in support of this application and argued that the applicant had not only acknowledged liability for the loss of funds he embezzled but also stated that he paid back part of the money.

 

I am alive to the principle that in an application where the applicant seeks leave to appear and defend the suit, he must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. In the case of Maria Odido v Barclays Bank of Uganda Ltd HC Misc. Application No. 645 of 2008 Mukasa J. observed that at this stage the applicant is not bound to show that he has a good defence on the merits of the case but ought to satisfy court that there is prima facie a triable issue in dispute which the court ought to determine between the parties.

 

I have perused annexture “BB1” which indicates the applicant’s acceptance of responsibility in the matter of Ug. Shs. 90,566,533/= and he even went ahead to ask for forgiveness. At face value, I would be inclined to agree with the respondent that the applicant has no defence in view of annexture “BB1”. Nevertheless, as indicated earlier in this ruling,  the applicant avers in paragraph 3 of the affidavit in support of this application that he was duped by the Managing Director of the respondent bank to accept responsibility for the loss of Shs. 90,000,000/= and pay Shs. 20,000,000/= immediately so that he would cancel the suspension given by the bank.

 

To my mind that allegation raises prima facie a triable issue that merit determination by this court. This can only be done if this application is allowed and the applicant is given a chance to adduce evidence to prove his allegation. The triable issue coupled with my earlier finding that service on the applicant was not effective would warrant granting this application.

 

In the premises, this application is allowed. The judgment and decree entered in default for the respondent/plaintiff against the applicant/defendant in Civil Suit No. 356 of 2010 are set aside and execution of the decree stayed. The applicant is granted leave to appear and defend the main suit. He shall file his Written Statement of Defence within 14 days from the date hereof.

 

Costs of this application shall be in the main cause. 

 

I so order.

 

Dated this 27th day of February 2013.

 

 

Hellen Obura

JUDGE

 

Ruling read in chambers at 3.00 pm in the presence of Mr. Michael Ndegwe for the applicant and Mr. Sam Ogwang who was holding brief for Ms. Patricia Basaza Waswa for the respondent.

 

 

JUDGE

27/02/13