Wakilii

Paragon Real Estate Surveyors Limited & Another v Chemonges & 4 Others (Miscellaneous Application 363 of 2023)

High Court · [2024] UGHC 289 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment in underlying civil suit concerning land ownership
Decision
Application to set aside default judgment dismissed; default judgment of 11 October 2023 upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application to set aside default judgment must fail where service of summons was duly effected. The Court found that service via WhatsApp, confirmed by delivery indicators and the recipient's acknowledgment, constitutes valid service under the Constitution (Integration of ICT) Practice Directions 2019. The Applicants were properly served but chose not to file their defence. The default judgment entered in Civil Suit No. 053 of 2023 was upheld and the application dismissed with costs.

Outcome

Application to set aside default judgment dismissed; default judgment of 11 October 2023 upheld

Facts

The Respondents filed Civil Suit No. 053 of 2023 against the Applicants seeking a declaration that land comprised in Freehold Volume MBA 82 Folio 13, Plot 515 Block 2 at Chepnoibei/Kaibos measuring 64.2510 hectares belongs to the Respondents. The Applicants alleged they were never served with summons and that default judgment was entered against them. The Respondents' process server deposed that he visited the Applicants' offices, obtained their telephone contacts from their secretaries, and served them via WhatsApp after the Applicants requested that method of service. The 2nd Applicant acknowledged receipt by replying 'NOTED'. The Applicants claimed they had engaged the Respondents in settlement discussions and that the Respondents had agreed to withdraw the suit. The Respondents denied any such agreement. Default judgment was entered on 11 October 2023. The Applicants then brought this application to set aside the default judgment and seek leave to file a defence.

Issues

  1. Whether the default judgment in Civil Suit No. 053 of 2023 can be set aside.
  2. Whether the Applicants can be granted leave to file a written statement of defence in Civil Suit No. 053 of 2023.
  3. What remedies are available to the parties.

Orders

  • Application dismissed.
  • Default judgment entered on 11 October 2023 in Civil Suit No. 053 of 2023 is upheld.
  • Costs awarded to the Respondents.

Rules and key headnotes

Civil Procedure — Service of Process — Electronic Service via WhatsApp
Service of summons via WhatsApp constitutes valid and effective service where the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, 2019 permits electronic service through instant messaging applications, and where delivery indicators on the application show that the message and attachment were delivered and opened, and the recipient acknowledges receipt.
Civil Procedure — Setting Aside Default Judgment — Proof of Service
Under Order 9 rule 27 of the Civil Procedure Rules, a court shall set aside an ex parte decree only if the defendant satisfies the court that summons was not duly served or that the defendant was prevented by sufficient cause from appearing. Proof of service is established by affidavit of service under Order 5 rule 16 of the Civil Procedure Rules.
Civil Procedure — Setting Aside Default Judgment — Failure to File Defence After Valid Service
Where a defendant has been properly served with summons but chose to ignore the same and did not file a defence, the court is not required to grant leave to file a written statement of defence and the application to set aside the default judgment will be dismissed.

Legislation cited (6)

Cases cited (4)

  • Christopher Nsereko and Another v Edward Ndawula Kaweesi (Court of Appeal Civil Appeal No. 71 of 2015)
  • 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
  • Musumba Isaac Isanga v Quid Financials Ltd (High Court Miscellaneous Application No. 139 of 2020)
  • Non-Performing Assets Recovery Trust v General Parts (U) Ltd (Supreme Court Civil Appeal No. 8 of 2000)

Full judgment

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Paragon Real Estate Surveyors Limited & Another v Chemonges & 4 Others (Miscellaneous Application 363 of 2023) [2024] UGHC 289 (8 May 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.