[2024] UGHC 625

# THE REPUBLIC OF UGANDA IN THE HIGHCOURT OF UGANDA AT JINJA **REVISION CAUSE NO. 04 OF 2021** (ARISING FROM JINJA CHIEF MAGISTRATES COURT CIVIL SUIT NO.78 OF 2018)

# KYAMPA BAKER ::::::::::::::::::::::::::::::::::::

### **VERSUS**

# KIGULI MUSOKE ::::::::::::::::::::::::::::::::::::

## BEFORE HON LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI **RULING**

### **Introduction**

This an application by Notice of Motion brought under Sections 83 and 98 of the Civil Procedure Act and order 0.52 r 1, 2 and 3 Civil Procedure Rules for orders that;

- a. The judgement of Her Worship Happy Anne Magistrate Grade 1 given at Jinja under Civil Suit No.78 of 2017 on the 25^th day of April 2019 be revised and set aside. - b. That the Applicant be formally and properly served with summons and the plaint in Civil Suit No.78 of 2018. - c. That in the alternative, the Applicant be granted leave to file his defence in the Main Suit No.78 of 2018 and the same be heard inter-parties. - d. Costs of this Application be provided for.

### **Background**

The Respondent filed civil suit No.78 of 2019 against the Plaintiff for recovery of 3,900,000/=. However, the Applicant did not file a defence and an exparte judgement was entered against him. He seeks this Honorable court to revise the orders of the lower court and hence this Application.

### **Applicant's Evidence**

This Application is supported by the Applicant's Affidavit in Support dated 27^th April, 2021 in which he affirmed that;

a) The Respondent sued the Applicant vide Civil Suit No.78 of 2019 for recovery of Ugx 3,900,000/ $=$ and specific performance but he was never served with

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summons, a Plaint or any court process prior to judgement and a decree being passed against him on the 25^th day of April, 2019.

- b) That the Trial judge relied on Mr. Wansumbi Moses' Affidavit of Service filed on 22/10/2018 alleging to have served the Applicant with court process through a one Asiku Adhan. That however he has never personally received any such court processes and the said Asiku Adhan is neither his lawyer, lawful or authorised agent nor a relative of his. - c) That he has a main suit since the Respondent has never fully paid the agreed purchase price and his said claim is accordingly premature and does not disclose any cause of action. - d) That by entering judgement and decree under the said Civil Suit No.78 of 2019, the Trial Magistrate condemned him without according him an opportunity to be heard on the merits of the case. - e) That the previous attempts to get the audience of the Trial Magistrate to seek to set aside the said exparte decree/judgement were dismissed by the said Trial Magistrate, and that the case was frustrated and mishandled by his previous lawyers who failed to effectively represent him in the said matters. - That the Trial Magistrate in exercise of her jurisdiction acted with material $\mathbf{f}$ irregularity and injustice by entering judgement against the Applicant without proper service of due process and without according him the right to be heard. - g) He further states that the said judgement and decree in the main suit No.78 of 2019 have not yet been executed and thus this Application is proper and tenable before this Honourable Court. - h) That this is a proper case for this Honorable court to exercise its revisionary powers to set aside the said lower court judgement and decree.

### **Respondent's Evidence**

The Respondent, Kyampa Baker replied to the Application and affidavit in support through his Affidavit in Reply dated 14^th in which he averred;

- a) That the Notice of Motion was endorsed by the court on the 19^th day of September 2012 but was served on him on the 12^th day of October 2022, which is one year and 25 days from the date of endorsement by the court instead of having been served to him within 21 days from the date of issuance. - b) That this Application is stale and ought to be struck out with costs.

$\mathscr{K}$

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- c) That this Application is misconceived in as far as it seeks to set aside the decree in Civil Suit No.78 of 2018. - d) That the Application is barred in law in as far as the same does not disclose the address of the affirmant. - e) That the Applicant was duly served with court process and the matter proceeded exparte because he did not file a defence to the suit. - f) That the Applicant then commenced Misc. Application No.103 of 2019 seeking to set aside the decree in the main suit to which the Respondent responded and that due to the Application being stale, it was struck out on $12/3/2020$ . - g) That the Applicant filed another application vide Misc. Application No.30 of 2020 to set aside the decree vide civil suit No.78 of 2018 but however, on his own volition the Applicant opted to withdraw the Application and even asked that he is not punished in costs since he is seeking to settle the entire matter with the Respondent. - h) That if the Applicant was aggrieved, he ought to have appealed the decisions of the Trial court and as such this Application is malafide.

## **Affidavit in Rejoinder**

The Applicant in his Affidavit in rejoinder affirmed that;

- a) The Respondent's Affidavit in Reply is bad in law and improper since it depones to purely matters of law instead of sticking to the material facts and evidence and thus the same ought to be struck out. - b) That in rejoinder to paragraph 3 and 4 of the Respondent's Affidavit, the Applicant and his lawyer's clerk made effort to retrieve the Notice of Motion for service on several occasions but were always told by the court registry staff that the file was misplaced and /or missing until 6^th October, 2020 when the process server was given the same. - c) That the apparent delay in retrieving and/or serving the Notice of Motion was not a deliberate fault or omission on the Applicant's part but caused by the apparent disappearance of the court file which was beyond his control. - d) That the Respondent has not shown that he will be prejudiced or suffer any irreparable damage or injustice if this matter is entertained on its merits. - e) That in specific rejoinder to paragraph 6 of the Respondent's Affidavit in Reply, it is apparent on the face of the Applicant's Affidavit in support of this

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Application that the same was prepared by his lawyers whose full address is clearly indicated at the bottom of the Affidavit and thus the assertion that his address is not indicated is false and a pure technicality that does not warrant striking out the said Affidavit.

f) That he affirms that he was never served with summons and it was a material error and irregularity for the Trial Magistrate to enter judgement against him without according him the opportunity to be heard.

## **Representation**

Counsel Jacob Osillo appeared for the Applicant and Counsel Humphrey Hategeka represented the Respondent.

## **Respondent's Submissions**

Counsel for the Respondent raised a Preliminary objection that the Application was served out of time and as such, is incompetent. Counsel submitted that the Notice of Motion was endorsed by the court on the 19^th September 2021 and was served on the Respondent on the 12^th day of October, 2022 which is 1 year and 25 days from the date of endorsement.

Counsel further stated that the Application is incompetent as it offends the provisions of O.5 r $1(2)$ of the Civil Procedure Rules which provides that;

"summons once issued shall be served within 21 days from the date of issue and provides that summons once issued shall be served within 21 days from the date of issue and provides that time can be extended upon the Application being made to the court within 15 days from the date of expiration of the 21 days showing sufficient cause of the extension."

Counsel cited order 5 rule 1(3) of the CPA which provides that

"where no such application is made, then the Application should be deemed dismissed even without notice."

Counsel cited the case of Fredrick James Junju & Anor Vs Madhavani Group Ltd M. A No.688 of 2015 where court found that the same Application having been served out of time was incompetent and struck out with costs.

### **Applicant's Submissions**

In reply to the Preliminary Objection, counsel for the Applicant submitted that he would rely on the evidence in the Affidavit of service which was filed in this court on 18^th October, 2022 by Matege Sadat the affirmant and process server. Counsel

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submitted that while this Application was filed on 27^th April, 2021, the same was only endorsed by the Deputy Registrar 5 months later on 19^th September, 2021.

Counsel submitted that according to the Affidavit of Service, the Notice of Motion was obtained from court on 6^th October, 2022 and that this file had gone missing in the Registry and therefore the process server could not retrieve the Application to have it served before 6^th October, 2022.

He further stated that service was effected on 12^th October, 2022 and these were only 6 days after the Application was issued for service. He submitted that the apparent delay or omission to serve the Notice of Motion was not due to the failure of the Applicant but due to factors beyond the Applicant's control.

### **Submissions in Rejoinder**

Counsel for the Respondent rejoined and submitted that parties are bound by their pleadings and therefore an Affidavit of service is not a pleading and as such it ought to be brought into evidence by way of pleading. A pleading would either be an affidavit in support of the Application, a supplementary affidavit with leave of court or even a rejoinder. Counsel further submitted that Counsel for the Applicant had led evidence from the bar which is unlawful.

Furthermore, Counsel submitted that the Affidavit of service was submitted after the Respondent had filed his reply and therefore the said Affidavit had been filed to defeat the intended preliminary point of law.

### **Analysis of Court**

Issuance and service of summons is governed by Order 5 of the Civil Procedure Rules (CPR) This rule applies all court process including this instant Application.

#### Order $5 r.1$ (2) states that

"Service of summons issued under sub rule (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 court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension."

In the case before me, the Notice of Motion was endorsed and sealed by court on the 27^th day of April 2021. It was then served on the Respondent on the 12^th day of October, 2022 which was approximately one year and 25 days from the date of endorsement. The hearing date fixed in the Application was 29th September 2021.

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In the Affidavit of service, Matege Sadati, a process server affirmed that he received a copy of this Application and hearing notice issued by this Honorable Court on the 6^th day of October, 2022. The hearing notice was served on the 12^th day of October and was received by the Respondent who acknowledged receipt with the stamp of his law firm, Tuyiringire & Co. Advocates.

The Applicant in his Affidavit in Rejoinder states that the apparent delay in retrieving or serving the Notice of Motion was not a deliberate fault or omission on his part but one caused by the apparent disappearance of the court file which was beyond his control.

From the court record, I have observed that Revision Cause No.4 of 2021 was filed on 27^th April, 2021. The same Cause was endorsed by this Court on 19^th September, 2022 with a hearing date of 29^th September 2021. Therefore, the file was available on 19^th September, 2021 when the Application was endorsed by the Deputy Registrar. I am not convinced by the Applicant's submission that the file was only retrieved on 6^th October, 2022 having gone missing for a period of more than a year from 27^th April. 2021 to 6^th October. 2022 after which the Applicant served the Respondent on 12^th October, 2022.

A prudent lawyer would have formally written to the Court informing the Court about the missing file as early as possible. Further, the inaction on the part of the Applicant for a period of one year before he could serve the Applicant creates doubt as to whether the Applicant filed this case with a serious intention of pursuing it. No credible evidence has been adduced by the Applicant to convince this court that the file was indeed missing or that there was any effort on the part of the Applicant to prosecute this case. At the very least, a formal communication to this Court about the missing file should have been made.

In the premises, it is my finding that the Application was served out of time on the Respondent and as such, the preliminary objection is upheld.

This matter is dismissed with costs. The Applicant shall bear the costs of this Application.

I so order. . . . . . . . . . . . . . . .

#### JUDGE

LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI. Ruling delivered on $\dots \dots \dots$ day of July, 2024

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