[2024] UGHC 972

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

### CIVIL APPEAL NO. 0011 OF 2022

(Arising from Miscellaneous Application No. 015 of 2021)

(Arising from Miscellaneous Application No. 044 of 2021)

(Arising from Civil Suit No. 006 of 2020)

## 1. MUZAMIL BABA

2. VIGA KEREMO:::::::::::::::::::::::::::::::::::

#### **VERSUS**

AJIGA HAMID:::::::::::::::::::::::::::::::::::: 15

# **BEFORE: HON. JUSTICE COLLINS ACELLAM**

#### **JUDGEMENT**

#### Introduction

This is an Appeal arising from the Ruling of and Orders of His Worship Kiwanuka Hillary the 20 Grade 1Magistrate of Yumbe at Yumbe dated 27th October 2021 vide Miscellaneous Application No. 015 of 2021 wherein he entered a Ruling for the Respondent against the Appellants having found that the summons to file a defence were effectively served on the Applicants twice and applicants have failed to prove any sufficient cause that prevented them from filing their defence.

$25$ He dismissed the Application with costs to the Respondent. The Appellants being dissatisfied with the decision of the lower court lodged this Appeal for orders that;

1. This Honourable Court be pleased to set aside the Ruling and Orders of the trial Magistrate and allows the Appellants to defend Civil Suit No. 006 of 2020 on its merits.

2. Costs of this Appeal and the Trial be provided for and the interest thereon at the rate of 20% from the date of judgement until full payment.

### **Background**

The Background of this Appeal is that, the Appellants filed an Application in the lower court under Section 98 of the Civil Procedure Act, Order 52 Rule 1,2&3 of the Civil procedure Rules and Section 33 of the Judicature Act for orders that; The exparte hearing and or proceedings in Civil Suit No. 006 of 2020 be set aside, The Applicants be granted leave to file defence to the said suit out of time and costs of the Application be provided on grounds that;

- 1. There was no effective service of summons on the Applicants. - 2. That the Applicants did not understand the implications of summons served on them because they are illiterate.

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- 3. That the subject matter of the suit is land and the applicants live and derive their sustenance on their livelihood. - 4. That the Applicants have a good defence to the suit and it is in the interest of justice that this application be allowed.

The Respondent filed an affidavit in reply and averred that the Applicants were served and they failed to demonstrate to court that they were not served with court processes and are merely 10 making false averments in their affidavits.

The Magistrate ruled for the Respondents and went ahead to enter to hear the civil suit exparte. And its for this reason that the Appellants filed this Appeal on grounds that;

- 1. The trial Magistrate erred in law and fact when he held that there was no sufficient cause preventing the Appellants from filing their defence in Civil Suit No. 006 of 2020. - 2. The trial Magistrate erred in law and fact when he failed to judiciously and properly evaluate the evidence on record thereby arriving at a wrong decision.

# **Representation and Hearing**

The appellants were represented by Counsel Bundu Richard of M/s Bundu & Co. Advocates $20$ while the Respondent was represented by Counsel Daisy Bandaru of M/s Bandaru & Co. Advocates. The Appellants filed their submissions on 25th April 2023. The Respondent was instructed by this Court to file his written submissions by 20th September 2023 but have not yet filed to date.

I have read the pleadings and written submissions of Counsel for the Appellant. I have read and advised myself on the law and authorities as cited by Counsel and I have considered them in 25 making this Judgment.

## Determination of the Appeal

Counsel submitted that there was no effective service on the Appellants in the Civil Suit and that an affidavit of service must be on record before exparte proceedings are allowed in the nonexempted Ex - parte proceedings. Counsel relied on the cases of Okello vs Mudukanya (1993)

1 K. A. L. R 110 and the case of Kitumba vs Kiryabwire (1981) HCB 71.

Counsel further submitted that effective service of court process requires summons signed by a judge (under Order 5 Rule 8 of the Civil Procedure Rules ) and served on the defendant in person or on his agent. That where there is more than one defendant, the service of summons shall be made on each of the defendant (under Order 5 Rule 9).

Order 5 Rule 9 of the Civil Procedure Rules provides that except as otherwise prescribed, where there are more defendants than one, service of summons shall be made on each defendant.

I have perused the lower Court's file and indeed the 2nd Appellant was never served personally. In affidavit of service dated 15th September 2020 and deponed by a one Taban Gadafi, under paragraph 5 states that "the 2nd defendant was not around, and the 1st defendant received the

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## summons on his behalf."

There is no proof that the 1st Appellant is an agent of the 2nd Appellant.

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Therefore, I find this sufficient proof that there was no effective service on to the 2nd Defendant $\mathsf{S}$ in Civil Suit No. 006 of 2020 /2nd Appellant herein.

The lower Court had a duty to ensure that the Respondent effected service on the Appellants/ Defendants before carrying out an exparte proceeding.

Counsel also stated that the purported signatures acknowledging receipt of the summons by the 1st Defendant/1st Appellant were forged and that the 1st Appellant was never served with any 10 summons.

The Affidavit of service by Agundaru Lilian under paragraphs 4 to 8, she states that she met with the LC1 who took her to the defendants' home and she served the 1st defendant in the LC1's presence. The practice is, LC1 too should have signed and stamped the summons as a sign that

he witnessed the service. On the contrary in this matter there is no signature nor stamp or any 15 acknowledgement whatsoever that the same was done.

This clearly creates a doubt in regards to whether effective service was done onto the defendants.

Counsel further submitted that the issue in contention relates to declaration of ownership of land and that the Appellants' livelihood and that of their families entirely depends on the suit land as shown in their affidavits in support.

Counsel averred that the Appellants have a plausible defence and invited this court to find that the grounds are sufficient to set aside the exparte proceedings and allow the Appellants to defend Civil Suit No. 006 of 2020 on its merits.

I find that the Appellants have made a good case and from my observations as highlighted hereabove, there was no effective service of summons on to the Appellants/Defendants and as 25 such the exparte proceedings are a nullity.

Accordingly, given the above observations and issue in contention being land, I enter judgement for the Appellants and against the Respondent on terms that;

- 1. The Ruling and orders of the trial Magistrate in Miscellaneous Application No. 15 of 2021 are set aside. - 30

$20$

- 2. The Appellants defend Civil Suit No. 006 of 2020 on its merits. - 3. The Appellants file their defence in Civil Suit No. 006 of 2020 with 15 days after the date of delivery of this judgement. - 4. Costs shall abide the outcome of Civil Suit No. 006 of 2020

I so order 35 Dated at Arua this.

**Collins Acellam**

**JUDGE** 40