[2024] UGHC 817

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

## HOLDEN AT MBALE

# MISCELLANEOUS APPLICATION NO.0175 OF 2023

## (ARISING FROM CIVIL SUIT NO.10 OF 2019)

- 1. CHELANGAT FRED - 2. LABU BADRU ANDYEMA - 3. YARIWO ALICE - 4. CHEMONGES JOSEPH - 5. MASHANGATI JOSEPH - 6. SAPENYA MUTAMBO - 7. SEPCHOT LEONARD - 8. SIKOWA LEONARD - 9. CHERONG ALBERT - 10. MUSAU SADIK - $11$ **TOTO ROSE** - 12. CHELANGAT HAWA - 13. MAKU KASIM - 14. **MAKUK SHARIF** - 15. CHEBET RASIA - 16. YEKO RUKIA - MAKUK MUSAMURU 17. - **MWANGA ALEX** $18.$ - **MUREFU SHARIF** $19.$ - 20. **KISSA CLADES** - 21. KISSA FRED - **CHEPTEGEI ASADI** 22. - RAPNGANGA FRANCIS 23. - 24. **CHEKABET STEYA** - MUTAFAIRU TORROCH :::::::::::::::::::::::::::::::::::: 25.

### **VERSUS**

- 1. MBALE MUNICIPAL LOCAL GOVERNMENT COUNCIL - 2. NATIONAL FORESTRY AUTHORITY ::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE LUBEGA FAROUQ

### RULING ON PRELIMINARY OBJECTIONS

#### 1. Introduction

2. This is application was brought by way of notice of motion under section 98 of the Civil Procedure Act 282, Order 9 Rule 12 & 23 and Order 52 of the Civil Procedure Rules for prayers that; the orders dismissing Civil Suit No.10 of 2019 for want of prosecution be set aside and the suit be reinstated.

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#### 3. Legal representation

4. Counsel Magomu Muminu appeared for the Applicants whereas Counsel Serugendo Joshua appeared for the 1st Respondent and the 2nd Respondent was unrepresented.

#### 5. Determination of court

- 6. At the hearing of this application, counsel for the 1st Respondent raised preliminary objections to the effect that this application is incompetent because they had never been served with the same which contravenes Order 5 rule 1 (3) of the Civil Procedure Rules which requires service to be effected within 21 days. - 7. Counsel while relying on the decision of Justice Mubiru in Rashida Abdul Karim & Anor Vs Suleiman Adrisi Misc. Application No.009 of 2017, submitted that the use of the word "shall" prema-facie makes provision mandatory, this provision requires summons to file defence to be served within 21 days. This is meant to eliminate suits which are filed for archiving collateral objectives other the genuine reason of determination of the disputes as means of expeditiously disposing off speculative suites. It is thus settled law that the provisions of Oder 5 are mandatory and should be complied with. - 8. He prayed that this application be dismissed for failure by the Applicants to serve the same onto the Respondents the application within the prescribed 21 days and no extension of the same was applied for or even granted in the circumstances. - 9. In reply, counsel for the Applicants submitted that he had just received instructions in respect of this matter this early morning. He added that the Applicants are lay men who filed this application by themselves without assistance of a lawyer and where not aware of the impact of their failure to serve the Respondents the application within the prescribed time. - He prayed that court considers the guidance under Article 126 of the $10.$ Constitution which requires that substantive justice should be administered without undue regard to technicalities, to proceed and determine this matter irrespective of the fact that the Applicants did not serve the instant application.

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- He concluded by submitting that this matter cannot be dismissed with 11. costs to the 1st Respondent because it is a non-existent person in law. - In rejoinder, counsel for the 1^st Respondent submitted that, in the same 12. case cited above, that is to say, Rashida Abdul Karim & Anor Vs Suleiman Adrisi (supra), the respondent therein required court to disregard irregularities on the basis of administering substantive justice without regard to technicalities but court held that however, in the instant case court is mindful of the mischief intended to be cured by the requirement of strict compliance with the periods of time stipulated under order 5 of the CPR. The entire scheme of that Oder aims upon one thing to obtain the presence of the defendant and to provide full information to him or her about the nature of the claim in order to enable the determination of the matter without delay. - He concluded his submission by admitting that, the 1^st Respondent is 13. a non-existent person because what was gazetted is 'Mbale City' and not Mbale Municipal Local Government Council, which goes to the root of this application and the main suit and therefore prays that this application should collapse. - Analysis of court 14. - 1st preliminary objection: That this application 15. The is incompetent for non-service of the same. - Order 5 Rule 1 (1) of the Civil Procedure Rules SI 71-1 provides-16.

"When a suit has been duly instituted a summons may be issued to the defendant-

(a) ordering him or her to file a defence within a time to be specified in the summons; or

(b) ordering him or her to appear and answer the claim on a day to be specified in the summons."

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Order 5 Rule 1 (2) of the Civil Procedure Rules provides- $17.$

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"Service of summons issued under subrule (1) of this rule shall be *effected within twenty-one days from the date of issue; except that* the time may be extended on application to the court, made within

fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension."

Order 5 Rule 1 (3) of the Civil Procedure Rules provides-18.

"Where summons have been issued under this rule, and-

(a) service has not been effected within twenty-one days from the date of issue; and

(b) there is no application for an extension of time under subrule (2) of this rule: or

(c) the application for extension of time has been dismissed, the suit shall be dismissed without notice."

In Bitamisi Vs Rwabuganda [2018] UGSC 53 Mewsigye JSC (as he 19. then was) held that-

> " $O5 r 1$ (3) clearly states that where the summons is issued and *service is not effected within 21 days from the date of issue and* no application for extension of time is made the suit stands dismissed without notice. The provision does not give court discretion to decide whether to dismiss or not to dismiss the suit. *The court's action is dictated by the law and it is mandatory..."*

- In view of the above, it is obvious that the Applicants did not serve the 20. instant application onto the Respondents within the required time and no application for extension of time was made. Article 126 (2) (e) of the Constitution of Uganda as referred to by counsel for the Applicants cannot assist them since the provision of the law in Order is mandatory in nature. - It is pertinent to note that application of Article 126 depends on the 21. facts of each case. In the present case, the application was instituted in court on 16^th of May, 2023. From the Notice of Motion, the application was drafted by the Applicants themselves. It is however noted by court that the Notice of Motion is a legal document and therefore whoever drafts it, is presumed to have knowledge about the court procedures. - The essence of the mandatory provision of the law, is to ensure fair 22. hearing and to avoid delays. This Application has however been in court for now 1 year and 5 months but the Respondents have never been served.

23. The above reasoning was also discussed by my brother judge Stephen Mubiru in Ejab Family Investment and Trade Company Limited V. Centenary Rural Development Bank Civil Suit No. 001 of 2014 while citing the case of Fitzpatrick v. Batger & Co. Ltd [1967] 2 All ER 657 said that-

> "Article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995, is not a panacea for all ills and in appropriate cases the court will still strike out pleadings such as this considering that one of the aims and overriding objective of the amendment of Order 5 of *The Civil Procedure Rules* was to enhance expeditious disposal of suits and curtail the abuse of court process for ulterior motives. If this proposition is correct, as I think it is, it would follow that a suit would be liable for striking out at any stage upon expiry of the stipulated periods...... The timelines in the rules are intended to make the process of judicial adjudication and determination swift. fair, just, certain and even-handed. Indeed, public policy demands that cases be heard and determined expeditiously since delay defeats equity, and denies the parties legitimate expectations."

- 24. In the circumstance, the 1^st preliminary objection is upheld. - 25. The 2^nd preliminary objection; that the 1^st Respondent is a nonexistent entity. - Counsel for the 1^st Respondent submitted that the 1^st Respondent is 26. non-existent entity and prayed court to consider dismissing this application in that regard. - 27. Order 1 rule 10 of Civil Procedure Rules gives this court power to strike out a party who was improperly joined. - 28. In this case, it is apparent that the Applicants sued Mbale Municipal Government Council which is a wrong and non-existent party. For that reason, the 1^st Respondent is accordingly struck out.

## (See: Abdulrahman Elamin V. Dhabi Group, Warid Telecom Uganda Ltd & Anor Civil Appeal No.215 of 2013)

- 29. The $2^{nd}$ preliminary objection is upheld. - 30. In the final result, this application is dismissed.

Each party shall bear its own costs. 31.

I so order.

LUBEGA FROOUQ JUDGE

Ruling Delivered via Emails of the parties on the $3^{\ensuremath{\text{rd}}}$ day of September 2024

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