[2024] UGHC 619

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

## **MISCELLANEOUS CAUSE NO.28 OF 2021**

# 1. LEATHER INDUSTRIES OF UGANDA LIMITED

3. BRIAN KWAME EMURWON :::::::::::::::::::::::::::::::::::: 2. FRANCIS IKOTOT

### **VERSUS**

### 1. MESSRS NASSIWA & CO. ADVOCATES

- 2. NAKIVUMBI SHINA SAUDA - 3. OOLA IRENE OROMA - 4. OCHAN PAUL - 5. OKIROR ROBERT - 6. NSANDHA FRANCIS - 7. ATALA HARRIET - 8. NAMUTIDE LYDIA

### 9. MUKEMBO MUZAFARU:::::::::::::::::::::::::::::::::::

### BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

#### **RULING**

This Application was brought under Articles 20(2), 27(2), 40(2), 45, and 50 of the Constitution of the Republic of Uganda 1995 and Rules 3(a), 5(1)(a), 6(1)(a) and (b), 7(1) and 9 of the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019). The Applicants are seeking order of this court for the following reliefs;

- a) A declaration that the Respondents' capture, disclosure, publication, and/or use of the Applicants' email correspondence without authorization infringed upon the right to privacy as guaranteed under Article 27(2) of the Constitution of the Republic of Uganda. - b) A declaration that the Respondents' capture, disclosure, publication, and/or use of the second and third Applicants' email Correspondence without authorization infringed and or threatened to infringe upon the second and third Applicants' right and freedom to practice their profession and carry out their lawful occupation as guaranteed under article 40(2) of the Constitution of the Republic of Uganda

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- c) An order prohibiting the unlawful capture, disclosure, publication, and/or unauthorized use by the respondents of the Applicants' private communication. - d) Compensation of UGX 25,000,000 payable by the Respondents, jointly and severally, to each of the Applicants as victims of the Respondents' unlawful acts; - e) Interest and costs.

The grounds for the Application were laid out in the Affidavit in Support of the Application deponed by Francis Ikotot but are briefly laid out below as follows;

- a) On the 30^th April 2021, the 2^nd and 9^th Respondents jointly filed a case against the first Applicant before the Industrial Court holden at Jinja vide LDR No. 008 of 2021. The 1^st Respondent, an advocate, drafted and filed all the pleadings presenting the claim at court. - b) In paragraph 12 of the memorandum of claim, the Respondents state that the 1^st and 3^rd Applicants, an advocate, "conspired to fail the ends of justice" when "with ill intentions" they altered minutes of a consultative meeting. - c) Subsequently, in paragraph 21 of the Reply to the Respondent's Memorandum in Reply by way of an attachment marked "D" the Respondents disclosed and published private and privileged communication between the Applicants without due authorization.

#### **Representation**

The Applicants was represented by Newmark Advocates while the Respondents were represented by Kian Associated Advocates.

#### **Determination of the Application**

The court shall adopt the issues raised by the Applicants to guide it in the determination of this Application.

- 1. Whether there was a violation of the fundamental rights and freedoms of the Applicants. - 2. Whether each one of the Respondents is liable for the violations - 3. What remedies are available to the parties?

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### **Preliminaries**

Counsel for the Respondents raised two preliminary objections; the first preliminary objection concerned the want of service of the application. Counsel for Respondents submitted that whereas this application was endorsed by this court on 5/11/2021, it was not served until after the expiry of the 21 days. The said Notice of Motion was also never renewed within the prescribed period of 15 days. Instead, the Applicants prayed for substituted service and they claim that the Notice of Motion was endorsed on 3/12/2021.

Counsel further argued that although the Applicants made an application for substituted service on 8/12/2021, the same had to be coupled with an application for an extension of the Notice of Motion which was not done. Since the Notice of Motion (summons) had expired and was not extended, then the application of substituted service was of no legal effect. Counsel relied on the authorities of Sam Akankwatwa v United Bank of Africa Misc. App. No. 1233 of 2017, Rwabuganda Godfrey V Bitamissinamudu Civil Appeal No.87 of 2009.

Counsel for the Applicants submitted that the Respondents are mistaken in their assertion that the Registrar's endorsement refers to the date the Notice of Motion was issued by the Court. He argued that whereas the Notice of Motion vide Misc. cause 028 of 2021 was received by the High Court on 5^th November 2021 and purportedly endorsed on the same day by the Registrar, this was not the case. Rather, the Notice of Motion was issued on the 3^rd December 2021 as stated in the affidavit sworn by Tumwebaze John. Counsel argued that if the Respondents did not believe the contents of the affidavit sworn by Tumwebaze John, it was incumbent upon them to inquire at the court registry and confirm whether the Notice of Motion was issued on 3^rd December 2021.

Counsel for the Applicant submitted that under Order 9 rule 3(1) of the Civil Procedure Rules (CPR) a defendant who claims summons were not duly served upon him is required to give notice of intention to defend the proceedings and then apply to the court by summons in chambers for a declaratory order. Counsel argued that whereas the 1^st Respondent was served on 3^rd December 2021 and the 2^nd to 9^th Respondents were served on 21 March 2022, the Respondents only filed their intention to respond on 11^th April 2023. This was way out of time to file their intention to file a reply. Counsel prayed that the Application is not dismissed.

I have carefully read and considered submissions by both Counsel. I have also carefully perused the documents on the court record which have all been considered in my decision.

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I would like to clearly state that whereas the Applicants filed their Notice of Motion on 5^th November 2021as indicated on the court record, I have not had the opportunity to find either the affidavit in reply or the Notice of intention to reply filed by the Respondents. However, there are submissions for both parties on record.

It is trite law that a Defendant/Respondent who has been served with summons is required to file a defence within the time and manner as provided by Order 8 Rules 1 and 19 and Order 9 Rule 1 of the Civil Procedure rules which is 15 days after service of summons. In this case, it should be noted that the Respondents did not file an Affidavit in Reply. As such, they run out of time and did not file an application for leave to file out of time. Consequently, they lost their opportunity to raise a defence in respect of this suit. By virtue of that fact, their submissions are inconsequential to the proceedings before this court and shall not be considered in the determination of this suit.

Be that as it may, it is the duty of the court to ensure that justice is served at all levels. The court should be seen to do justice and not simply claim to be dispensing justice. The court took notice of the timelines concerning the issuance and service of summons by the court and the Applicant respectively.

The law governing the service of summons to a defendant is enshrined in Order 5 of the **Civil Procedure Rules which states;**

### "ORDER V—ISSUE AND SERVICE OF SUMMONS.

#### 1. Summons.

(1) 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; $\overline{or}$

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

(2) 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 twentyone days, showing sufficient reasons for the extension.

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(3) 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."

Order 5 Rule 1 of the Civil Procedure Rules is to the effect that every summons issued by the court must be served within 21 days from the date of issue. Rule 3 emphasizes that where summons have been issued and not served within 21 days or where there is no application for extension of the summons or the application for extension is dismissed, the suit stands dismissed without notice.

It has been previously held by the Supreme Court in Kanyabwera Vs. Tumwebaze (2005) EA 86 quoted with authority in Orient Bank Ltd Vs. AVI Enterprises HCCA 2/2013 that service of hearing notices should follow the provisions of Order 5 CPR. Similarly, in Stop and See (u) Ltd Vs. Tropical Africa Bank Ltd, Misc. Application No. 5 333 of 2010, **Madrama J (as he then was)** guided that Miscellaneous Applications are bound by the same timelines as provided for under order 5 of the Civil Procedure Rules.

A Notice of Motion is in by itself a summon of a party/parties to appear before the Court for a hearing. Unlike a Plaint that requires separate summons, a Notice of Motion serves the purpose of a pleading on the part of the Applicant and a summon on the part of the court which necessitates it being endorsed by a Registrar of the court.

By implication, this means that upon filing and sealing of the Application (Notice of Motion), the Applicant shall have to serve the Application on the Respondents within 21 days. Order 5 rules 2 and 3 seem to post a clear position that once summons expire before service and there is no application for extension within 15 days or the application 15 for extension is dismissed, the suit stands dismissed without notice. This would translate into a position that there would be no suit to talk about at law.

The point of contention in this suit revolves around the question of when the summons are considered to be issued. This court has addressed this question in *Century Hotel Limited* $V$ Ngobi Anthony Miscellaneous Application No.304 of 2022 where it held;

$\mathbb{R}^{\mathbb{C}}$

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The submission by Counsel for the Applicant that the summons were issued on the 3rd of December is not backed up by any other evidence except an affidavit of service of Tumwebaze Jordan. In the said affidavit, there is no evidence attached to corroborate the contents of Paragraph 2 of the affidavit where it was averred that the summons were issued on the 3rd of December 2021. On the contrary, there is evidence on record to prove that the Application was endorsed on 5th of November 2021. Consequently, I do find that the Application was served out of time on the Respondents and no leave was sought to file and serve it out of time.

On the issue of substituted service that was effected by the learned Registrar, it should be noted that the Order given by this court to allow substituted service and extend the time with which to carry out the substituted service was erroneous and is hereby quashed. This is because by the time the order was made on 15th March 2022, the time within which to apply for an extension of time to serve had since expired. It should be emphasize that the court shall not sanction an illegality brought to its attention as stated in the case of Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1982] UGSC 2 (8 April 1982).

Since this Application was served on the Respondents out of time and no application was made to extend the time to serve the Respondents, the court has no option but to dismiss this Application. Justice Madrama in Alex Mulyabintu Versus Case Western Reserve University (Ohio) and Makerere University Civil Appeal No.190 of 2013 held that a suit dismissed for want of summons under Order 5 rule 1 (3) of the CPR is not dismissed at the discretion of the Judicial officer and that the Judicial officer dismisses the suit as directed by the mandatory stipulation of the rules. Also See Michael Mulo Mulaggusi V Peter Katabalo supra, Kevina Nantume V Administrator General & Ors HC Mis. Appeal No. 1448 of 2018.

Since this Preliminary objection disposes of the suit, I shall not delve into the second preliminary point of law.

I therefore order as follows:

1. Miscellaneous Cause No. 028 of 2021 is dismissed due to the Applicants' failure to serve the Application on the Respondents within the timelines set out in Order 5 of the Civil Procedure Rules.

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2. The Applicants shall bear the cost of this Application.

I so order

.......................................

FARIDAH SHAMILAH BUKIRWA NTAMBI

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JUDGE<br>Delivered on this ....................................

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