THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION 430 OF 2015
(ARISING FROM CIVIL SUIT NO. 120 OF 2013)
GIUSEPPE GIAMONA …………………… APPLICANT / DEFENDANT
ANUPAMA RAO SINGH .............…………………… RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
By this application made under S.98 C.P.A, 0.9 rr 12 and 27, 0.22 rr 23 and 0.52 rr 1 and 3 C.P.R, the Applicant sought orders of this court:-
- Setting aside exparte judgment entered in favor of the Respondent /Plaintiff in Civil Suit 120/2013.
- The Applicant be allowed to file his defence.
- Costs of the application be provided for
The grounds of the application are that:-
- The Applicant then Defendant was never served with summons to file a defence.
- Interlocutory judgment was entered against him on 07.05.13 and judgment was passed against him on 12.01.15.
- The Applicant only got to know about the suit when he was arrested on 19.05.15 and taken before the Execution Division of Court.
- The Applicant is not indebted to the Respondent as alleged.
- It is unfair to be condemned to pay that huge amount of money without being given opportunity to be heard.
- The Applicant has a plausible defence to the claim.
- It is in the interests of justice that this application be granted.
The application is supported by the affidavit of the Appellant elaborating on the above grounds.
There is an affidavit in reply deponed by Patrick G. Barugahare Advocate, where it is contended that the application does not meet the conditions for grant of such applications, the supporting affidavit contains falsehoods and there is another application before the Execution Division where Applicant is seeking same orders.
Further that, Applicant was properly served as indicated in paragraphs 8-12 and notice of intention to sue was given to his advocates.
The Applicant raises language issues for the first time, whereas throughout the transaction he directly took part in negotiations and there was no interpreter.
The Applicant was represented by his lawyers throughout the transaction and they witnessed all the agreements.
And since the Applicant admits breaching the sale and that he requested for extension of the period within which to pay the purchase price this confirms the terms of the memorandum of understanding and the pleadings of the Plaintiff.
Alleged falsehoods in the memorandum were denied and it was emphasized that the Applicant communicated to the Respondent both directly on phone, email and through his lawyers.
The payments of salaries or for repairs claimed to have been made by the Applicant were made by the Deponent on behalf of the Respondent.
That the Applicant was given full possession of the property as indicated in the memorandum of understanding and he signed as tenant.
Also that he received the notice of intention to sue and the summons but chose not to appear and later entered into a consent settlement.
Asserting that the Applicant has no defence to the case and that the application is an abuse of court process, it was applied that it be dismissed.
Here was also a supplementary affidavit in reply.
It should be noted that the application was dismissed on 01.07.15 for lack of prosecution but it is apparent the same was reinstated on agreement of both Counsel and was accordingly heard on 16.09.15.
Counsel for the Applicant adopted the grounds in the application and the averments in the supporting affidavit.
He then submitted that, in applications of this nature, court will invoke its unfeltered discretionary powers to either set aside or retain the default judgment. The case of Mbogo and Another vs. Shah  EA 93 was relied upon.
It was also pointed out that the reason for such discretionary powers was set out in the case of Henry Kawalya vs. J.K. Kinyankwanzi cited with approval in the case of Erimu Angos vs. JAS Projects Ltd Miscellaneous Application 429/05 P.58 – Sekandi Ag. J. as he then was.
It was held in that case that “good service is personal service except in cases where court has granted substituted service. By serving in a substituted manner on a person allegedly thought to be an agent of the applicant cannot have been good service”.
Counsel then argued that it is not stated in what capacity Carol Miriam was served. The place where she was found was for personal matters and not company matters and the Applicant had not appointed her to receive service on his behalf. And neither was he an adult member of the Applicant family.
Further that, the Applicant denies being owner of the email address “Annexture C” to process server’s affidavit – which is a communication between one Sheila and Counsel for the Respondent. There is no indication that Applicant was a party thereto or that it was copied to him. And there is no evidence that the Applicant ever instructed the Respondent to serve the said Sheila and there is no response from Sheila acknowledging receipt of the mail and therefore service could not have been effective. - The case of Fredrick Mugawe & Another vs. Agro Finance Trust Ltd and Another Miscellaneous Application 869/13 was cited for the interpretation of what amounts to sufficient cause upon which court can exercise its discretionary power to set aside exparte judgment.
Counsel insisted that the Applicant did not participate in the hearing because he was not served and he would like to exercise his constitutional right to be heard. A right that is “one of the elements of justice” – According to the case of Swaziland Water Services vs. Barnabas Khumalo C.S. 180/13.
However, it was emphasized in that case that “good cause has to be shown in order for court to exercise its discretion. An explanation must be given by the Applicant for its default”.
In the present case, Counsel argued that non- service of court process is a good excuse for setting aside default judgment, because such a party is denied the opportunity to know the case so as to defend it.
Asserting that the Respondent exhibited undue diligence by failing to effect personal service, while at execution of default judgment, they exhibited due diligence, Counsel prayed that application be allowed.
In reply, the three affidavits in reply were adopted and it was then submitted that the Respondent insists that there was effective service on the Applicant on three occasions. - Paragraph 7 – 13 affidavit in reply and paragraph 2, 3, 4 and 5 of Carlo Miriam’s affidavit.
- The summons and plaint were served on Applicant’s lawyers WEB Advocates – via email and in hard form at their chambers.
It is not denied that WEB Advocates were Applicants lawyers throughout the transactions giving rise to the suit and almost all Applicants correspondence was channeled through them.
That the Applicant does not state that his lawyers did not get the documents only that the Respondent has no proof of the Applicants’ instructions to the lawyers to receive process.
However, that the same lawyers appeared for the Applicant when execution commenced. - Affidavit of Muhangi paragraphs 4 and 5. It was therefore contended that the Applicant changed his lawyers to deny knowledge of the summons.
Further that the Applicant was also served through his personal email.The mail through which the plaint and summons were served on his lawyers was copied to the Applicant and the other Defendant. - Paragraph 11 – affidavit in reply.And in affidavit in rejoinder, Applicant indicates the email was operated by First Defendant therefore he is stopped form denying information deliveredthrough the same address and he led Respondent to believe that he received information through that address.
The information was delivered to the Applicants last known physical address – paragraph 8, 9 and 16 supporting affidavit where the process server was guided by the Second Defendant, Applicant’s close friend and guarantor of the transaction.
The Applicant was also called by telephone and he does not deny it.
Carlo Miriam swore an affidavit confirming receipt of the documents and passing them on to the Applicant.Therefore court should find for all those reasons that the summons were effectively served but chose to ignore the summons.
- According to the case of Geoffrey Gatete and Another vs. William Kyobe SCCA 07/2005 Justice Mulenga “effective service is one which results in the defendant becoming aware of the suit so that he has opportunity to respond to it”.
Referring to the alleged good defence of the Applicant, Counsel for the Respondent stated that decided cases are to the effect that “in addition to a good cause, court has to be satisfied that there is merit in the defence to the cause.” - Kabagenyi Teddy Onyango vs. PHINA Bank (U) Ltd HCCS 710/12 P.18.
It was argued that the Applicant in the present case has neither good cause nor has he shown that he has a good defence to the suit as the memo he disputes is very clear as it talks of rent. As it is in writing, oral evidence cannot be admitted and there is no document in his affidavit to suggest otherwise.
And that the Applicant’s allegations that he does not understand English is unacceptable as the transaction was conducted in English and the Applicant has been communicating in English all along. The sale agreement he admits entering into is in English and there is no Jurat on the agreement to indicate otherwise.
He also admits signing the memorandum of understanding and that he benefited from it and it is incredible that he could have understood the documents selectively.
There was no lack of due diligence on the part of the Respondent. The Applicant was represented by lawyers who were his agents and their knowledge is imputed on the Applicant.
It was then prayed that the application be dismissed with costs to the Respondent.
In Rejoinder, it was submitted that Advocates are retained for specific purposes after which the Advocate/Client relationship ceases.
That under 0.5 C.P.R, service of summons does not include service on lawyers who acted earlier. If that were served, they did not have instructions and service upon them was therefore not sufficient.
And while Carlo Miriam concedes having received the summons. There is no evidence that she passed them over to the Applicant.
The Applicant was not barred from engaging and dropping lawyers.
Also that 0.5 C.P.R never envisaged service through emails. Though times have changed, the Electronic Act does not provide for electronic service. It is only a practice adopted by court.
Neither is it a rule of practice or a requirement of law to attach intended defence. The Kabagenyi case is distinguishable from the present case.
Court should not look at the jurat. It is not disputed that Applicant does not understand English. And once an illegality is brought to the notice of court. It should not be ignored as is ground for setting aside judgment.
Earlier submissions and prayers were maintained.
The issues for court to determine are: - whether this is a proper case for settling aside the exparte judgment and decree.
Whether Applicant should be allowed to file a defence.
It has been established by decided cases that “0.9 r 12 C.P.R gives court unfettered discretion to set aside or vary exparte judgment”. – Refer to Mbogo vs. Shah  EA 93, Nicholas Roussos vs. Grulam Hussein Habib Virani and Another SCCA 09/93, Attorney General & Another vs. James Mark Kamoga and Another SCCA 08/2003.
“In exercise of its discretion under this rule, court needs to consider whether in light of all the facts and circumstances both prior and subsequent of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment upon terms to be imposed” – See Kimani vs. McConnell  EA 547.
Courts have emphasized that “the main concern of the court is to do justice to the parties and the court will not impose conditions on itself to felter the wide discretion given to it by the rules” – Refer to Mbogo vs. Shah (Supra) and Patel vs. Cargo Handling Services  EA P.6.
Bearing the above decisions in mind, court takes into consideration the facts and circumstances of this case, more so the reason for seeking to set aside the judgment on the grounds that the Applicant was never served with summons to file a defence and only got to know of the suit when he was arrested and taken to Execution Division on 19.05.15.
This court has discretion under 0.9 r 27 C.P.R to set aside exparte against the Defendant upon the defendant satisfying court that the summons were not duly served or that the Defendant / Applicant was prevented by sufficient cause from appearing when the suit was called for hearing.
However, it should be noted that the Respondent insists that the Applicant was served through his lawyers, where notice of intention to sue was also served. The same lawyers that represented him throughout the transaction that he never disputes. Further that he is raising the language issues for the first time.
There was also communication to the Applicant by phone, email and through a third party who swore the supplementary affidavit confirming that the summons were passed on to the Applicant among other things.
I must state that I am more persuaded by the affidavits of the Respondent and the submissions of Counsel for the Respondent to find that there was effective service upon the Applicant through his lawyers, by email, telephone and the third party.
Since the lawyers had represented him throughout the transaction which resulted into the suit and it was the last known address for service of the Applicant. In addition to which other means of service were employed. This court finds that there was effective service on the Applicant. The application fails on this ground as court finds no merit in the contentions of the Applicant.
Secondly, though exparte judgment was entered against the Applicant, the case was heard in respect of the Second Defendant who was a guarantor of the Applicant.
The case was against the two parties jointly and severally in those circumstances it would not be just to set aside the judgment without any valid grounds advanced by the Applicant.
This court has found cases to the effect that “once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance …. beyond recall by that court.” – See Bailey vs. Marinoff (1971) 12 5 CLR 529 at 530 CLR 431, at 436, Grierson vs. Nominal Defendant (1977) 136 CLR 145, DJL vs. Central Authority (2000) 201 CLR 226 at 245 and Meechan vs. Glaszer Holdings PTY Ltd (2002) 54 NSWLR 146.
Court is mindful of the fact that the Applicant also resorted to S.98 C.P.R which gives court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.
But as already pointed out, court has found no justiable cause to set aside judgment. And decided cases have also established that “inherent powers have to be resorted to where there are no specific provisions of law and have to be exercised with great caution.”
In view of the public interest in the finality of legal proceedings, “the inherent power may not be exercised unless the Applicant can show that by accident without fault on his part he has not been heard.” – See Went Worth vs. Woollahra Municipal Council (1982) 149 CLR 672 at 684.
Court has already found in this case that the Applicant was effectively served with summons but chose to put himself out of court by failing to file a defence.
The judgment was formally recorded and can only be discharged on appeal.
The application therefore fails for all those reasons and is hereby dismissed with costs to the Respondent.
FLAVIA SENOGA ANGLIN