Wakilii

Tusubira v Seroma Limited (Miscellaneous Application 3080 of 2023)

High Court · [2024] UGCOMMC 331 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment arising from Civil Suit No. 0800 of 2023
Decision
Default judgment set aside; applicant granted leave to defend the underlying civil suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court set aside a default judgment where service of summons via WhatsApp was ineffective because there was no proof the applicant read the messages (no blue ticks shown). Service requires making the defendant aware of proceedings. The court granted unconditional leave to defend where triable issues existed: whether the correct party was sued (company versus director personally) and whether partial payment had been made reducing the debt claimed.

Outcome

Default judgment set aside; applicant granted leave to defend the underlying civil suit

Facts

The respondent obtained default judgment in Civil Suit No. 0800 of 2023 against the applicant for unpaid maize supplies. The applicant applied to set aside the judgment, claiming he was never effectively served with summons. The process server stated he served the applicant via WhatsApp after a phone call where the applicant said he was upcountry. The applicant denied receiving the documents and stated his phone screen was broken due to an accident on the date service was allegedly effected. The process server also claimed he met the applicant at Fido Dido where the applicant refused to acknowledge service, which the applicant denied. The applicant argued the suit was brought against the wrong party as the supplies were made to Watujo Agro Produce Limited, a company of which he is a director, not to him personally. The applicant also contended that partial payment of UGX 65,000,000 had been made, leaving a balance of UGX 88,582,800, not the full amount claimed.

Issues

  1. Whether the application meets the grounds for setting aside the default judgment
  2. Whether the application meets the requirements for the grant of unconditional leave to appear and defend in the civil suit

Orders

  • The default judgment entered in Civil Suit No. 0800 of 2023 is set aside.
  • The Applicant is granted leave to appear and defend Civil Suit No. 0800 of 2023.
  • 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.
  • Miscellaneous Application No. 1653 of 2024 and Misc. Application No. 1654 of 2024 are dismissed as overtaken by events with no order as to costs.
  • Costs for this application shall abide in the cause.

Rules and key headnotes

Service of Process — Electronic Service via WhatsApp — Standard of Proof
Service of summons via WhatsApp is recognised as valid electronic service under the Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions 2019, but effectiveness requires proof that the recipient received and read the documents, evidenced by blue ticks on WhatsApp confirming the message was read.
Service of Process — Purpose and Effectiveness
The purpose of serving summons is to make the defendant aware of the suit so that he has the opportunity to respond by defending or admitting liability; service that fails to achieve actual notice is not effective and justifies setting aside a default judgment.
Setting Aside Default Judgment — Grounds
A court may set aside a default judgment where satisfied that service of summons was not effective or for any other good cause; the burden is on the applicant to show that service did not achieve its intended result of making the defendant aware of the proceedings.
Leave to Defend Summary Suits — Triable Issues
A defendant seeking leave to defend a summary suit must show by affidavit that there is a bona fide triable issue of fact or law; triable issues include disputes as to whether the correct party was sued and disputes as to the amount owed requiring reconciliation of accounts.

Legislation cited (5)

Cases cited (6)

  • Post Bank (U) Limited v Abdu Ssozi (Supreme Court Civil Appeal No. 08 of 2015)
  • Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Male H Mabirizi K. Kiwanuka v Attorney General (Miscellaneous Application No. 843 of 2021)
  • Makula Interglobal Trade Agency v Bank of Uganda [1985] HCB 65
  • Kotecha v Mohammed [2002] 1 EA 112
  • Asea Georges Aswa v Housing Finance Bank Ltd (Miscellaneous Application No. 952 of 2020)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

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