[2025] UGHCLD 109

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

#### CIVIL APPEAL NO. 0042 OF 2023

#### (ARISING FROM MENGO LAND CIVIL SUIT NO.037 OF 2019)

RICH DAD JUNIOR SCHOOL::::::::::::::::::::::::::::::::::: 10

## **VERSUS**

NATHAN DUMBA MAYANJA:::::::::::::::::::::::::::::::::: **PHILIP NYENJE ::::::::::::::::::::::::::::::::::::** CHRISTOPHER NTWATWA MAYANJA:::::::::::::::::::::::3^RD RESPONDENT SOPHIA NABBONA::::::::::::::::::::::::::::::::: JOANITA NAMPIIJJA:::::::::::::::::::::::::::::::::: (ALL SUING THROUGH THEIR LAWFUL ATTORNEY MARY KYOWA **NAKALEMBE)**

BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA

#### **JUDGMENT**

## **INTRODUCTION**

This Appeal arises from the judgment of His Worship Matovu Hood Magistrate Grade 1 delivered on the 27^th January 2021. The Respondents filed civil suit No. 37 of 2019 in the Chief Magistrates court in Mengo against the Appellant for declaration that the Respondents have an access road to the premises, general damages, permanent injunction and costs of the suit.

The trial Court held in favor of the Respondents hence this Appeal.

# **GROUNDS OF APPEAL**

The Appellant raised the following grounds of appeal;

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- 30 1. That the learned trial Magistrate erred in law and fact when he passed an exparte judgment against the Appellant who was not served. - 2. Tlne learned trial Magistrate erred in law and fact when he agreed to adopt a defence belonging to Twaha Lubega as that ofthe Appellant yet they are two different persons. - 35 3. That the learned trial Magistrate erred in law and fact when he held that the Appellant should pay general damages and costs yet it was not party to the suit.

## BACKGROUND

40 The Respondents in an amended Plaint filed civil suit No.037 of 2019 contending that they are the owners of land comprised in Kibuga block 14 plot 704 at Najjanankumbi and the Appellant the owner of the adjacent plots no.7o5 and 706 in the same location. That they had no alternative access road and the road to their plot had been in use since 1991.

45 That the Appellant was threatening to biock and or construct structures blocking their access road for which they sought permanent injunction. That the Appellant's acts constituted trespass to land and to interfered with the Respondent's easements.

50 I note that before the amendment of the Plaint, the Respondents had originally sued TWaha Lubega T/A Rich Dad Junior school and the Appellant, who filed a written statement of defence contending that he is the director of the Appellant the registered proprietor of land comprised in Block 14 plots 705 and 706. That he never threatened to block the access road to the Respondent's land and that the structures under construction were developed on land comprised in plots 7OS ard 706.

That following the periodic inspection of the school by Kampala City Council Authorities the Appellant was required to expand the kitchen for the safety of the school going children as weli as workers, thus the need to maximally utilize the entire space on plots 7O5 and 706. That the existing access road was 55

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encroached upon by the owners and proprietors of land comprised in plots 460 and 310.

The following issues were raised in the lower court;

- ¹. Whether the Defendant(Appellant) trespassed on the access road to the Plaintiffs' (Respondents) premises comprised in plot 704 block 14 Kibuga? - 2. Whether the Defendants (Appellant) can be held to be in contempt of Court? - 3. What remedies are available to the parties?

The matter having proceeded exparte, the Respondents adduced the evidence of two witnesses. Mary Kyowa Nakalembe and Okivor Job. Court visited iocus in quo.

- Judgment was delivered in favor of the Respondents. The Appellant filed Misc. App no. 29 of 2O2l seeking inter alia the judgment and decree in civil suit No. 37 of 2OL9 be set aside, execution ofthe decree be set aside, the second Applicant be granted leave to appear and defend Civil suit No.37 of 2019. T}re Application was dismissed. 70 - 75 Interestingly, the Appellant hled an earlier Appeal OO47 of 2021. This Appeal was dismissed by Hon Lady Justice Olive Kazaarwe Mukwaya on 7e March 2023. Later on in a letter to the Court dated 131412023, Counsel for the Appellants denied ever iiling an Appeal.

80 Meanwhile a new Appeal. This one no 42 of 2023 was accordingly filed. It was allocated to me. On llo8l2o23 timelines for filing written submissions were issued by this Court. The parties liled submissions accordingly.

# DUTY OF 1ST APPELLATE COURT

This being a first Appeal, this court is under an obligation to re-hear the case by subjecting the proceedings before the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. This duty is well

explained in Father Nanensio Begumisa and three Others u. Eic Tiberaga SCCA 17of2000; [2004] KALR 236 thus;

'It is a utell-settled pinciple that on a first appeal, the parties are entitled to obtain from the appeal court its oun decision on issues of fact as well as of lau' Although in a case of conflicting euidence the appeal court has to make due allotuance for tte fact that it has neither seen nor heard tle uitnesses, it must weigh the

conJlicting euidence and draw its oun inference and conclusions."

# RESOLUTION

1.10

# Preliminary objections

- 95 The Respondent raised four preliminary points of 1aw to wit; the appeal was filed out of time, the notice of appeal on record is totally defective, filed and served out of time on to the respondents, the memorandum of appeai is totally defective, filed and served out of time on to the respondents and that ground two and three of the appeal offends the rules of procedure on how they were framed. - 100 I shall go ahead to consider the objections.

Counsel for the Respondent averred that leave to appeal was granted on Sft day of July 2022 to appeal MA. No. 29 ol 2027 and certified copies were availed to the appellant on 30ft of August 2022, however the memorandum of appeal on record was Iiled on 13th day of Aprit 2023 and served on to the respondent on the 2nd of May 2023 out of time. That court makes a finding of fact that the appellants appeal was filed out of time well over 1 1 months and should be dismissed with costs as there is no appeal fiiled in time.

I am aware that under Section 79 (1) (a) of The Ciuil Procedure Acl except as otherwise specifically provided in any other law, every appeal should be entered within thirty days of the date of the decree or order of the Court. It is trite law that an Appeal filed out of time without the leave of Court is incompetent and will be struck out as incompetent.

I am also aware that an Appeal is commenced by a memorandum of Appeal lodged in the High Court. A perusal of the record shows that judgement in the lower Court in Civil Suit No. O.37 of 2019 was delivered on 27b J anuary 2027.

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The records indicate that the Appellant then filed Misc. App No.29 ol 2027 seeking to set aside the exparte judgment. The ruling dismissing the Application was delivered on 25ft November 2021. There is no error in this process so far.

The Appellant also filed Civil Appeal No. 0047 of 2O2l on the 6ft of October 2021 that was dismissed by this Court on t}:e 7 1312023. The Appellant then filed this appeal Civil Appeal No. 42 of 2023 on 27r Apr1l 2023 that is before this Court.

The Application to set aside the exparte judgment was first filed as would be the right procedure in the circumstances. Therefore, time to file the Appeal was suspended since the Application would have provided the remedy sought. Therefore there was justihable grounds to entertain this Appeal in the circumstances.

Counsel for the Respondents also submitted that grounds two and three of the memorandum of Appeal are argumentative and should be struck off for noncompliance willr Order 43 rule 2 of the Ciuil Procedure Rules.

- 135 However, I disagree. Order 43 r (1) and (2) of fhe Ciuil Procedure Rzles provide a memorandum of Appeal to set forth concisely the grounds of the objection to the decision appealed against. Every memorandum of Appeal is required to set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds should be numbered consecutively. 130 - Tlw Black's Lou.t Dictionary, 8th edition at page I l9l defines an argumentative pleading as; "a pleading that states allegations rather than facts and thus forces the court to infer or hunt for supporting facts."

L4Q I find that grounds 2 and 3 point out the errors the Appellant observed, hence they comply with Order 43 of the Ciuil Procedure Rules.

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Accordingly the preliminary objections are dismissed.

In resolving the Appeal, grounds I ar,d 2 will be handled concurrently, ground ³ separately.

Ground one; That tLe learned tial magistrate erred in law and fact tuhen he passed an exparte judgment against the Appellant tt-tho tuas not serued.

Ground 2 The learned tial magistrate erred in law and fact uhen he agreed to adopt a defence belonging to Twaha Lubega as that of the Appellant get theg are two different persons.

150 Counsel for the Appellant submitted that during the Court proceedings in the lower Court as per the minutes ofthe then Counsel in personal conduct, Counsel for the Respondent sought to amend the Plaint by substituting TWaha Lubega with Rich Dad Junior School then decided to adopt the defense of an individual as that of a company which was never notified thus the Appellant did not file a defence and the Court went ahead to issue an exparte Judgement as against the

155 Appellant Company. That the Appellant at the point of execution sought to set aside the exparte Judgement which was granted thus this Appeal

Counsel for the Appellant also submitted that it is trite law that once an amendment is done in which a party is substituted with another, fresh summons ought to be extracted and duly served on the party. Th,al Order 5 Rule 8 of the

160 Ciuil Procedure. Rules provides for the mode of service which shall be made by delivering or tendering a duplicate of the summons signed by the judicial officer for this purpose and sealed by Court.

That Section 45 of tLe Magistrates Court Act provides for service of summons which shall be done by an officer ofCourt or public servant and shall be served

165 personally on the person summoned by delivering or tendering to them ^a duplicate copy of the said summons which was not done in this case.

,/) ,Z ⁶ r Counsel also made reference to Section 49 of the Magistrates Court Act, and Order 29 rule 2 of the CPR service on a corporation is effected on a secretary, or on a director or a principal officer of the corporation which was not done in this case.

1,70 The Respondents in reply submitted that the original Plaint was amended by the Respondents as they were still within time to amend their Plaint and filed on the 28m August 2019.

That Twaha Lubega the Appellant's director was struck off as a party to the suit and the Appellant was made the only Defendant. That Order 5 rule 1O of the CPR

r75 and the case of Wadamba Dauid us. Godfreu Mutasa & 2 others CA O032-2O15 it was held that service shall be made on the Defendant or his/her agent.

Counsel for the Respondent submitted that having made the necessary amendments, the Appellant was made the only Defendant who was served through his agent learned Counsel Sewankabo of Sewankambo & Co. Advocates and this was done in the presence of TWaha Lubega the Appellant's director.

That when the matter came up for hearing/ mention, the agents were authorized to receive and respond to the said amendment and they chose to adopt the already filed defence on record for and on behalf of the Appellant.

- 185 Counsel for the Respondent also submitted that the Plaint was amended by striking out Twaha Lubega and the Appellant was made the only Defendant to suit and was duly served the amendment and hearing notices to it through its lawyers MS Sewankambo & Co. Advocates and M/s Oketcho Baranyanga& Co. Advocates and TWaha Lubega the director of the Appellant company who were representing and dully instructed as agents of the Appellant. - 190 That even when the matter came up for judgment, they were served and subsquently when it was delivered on 27h January 2021. That Counsel Saad from M/s Oketcha Baranyanga & Co. Advocates was on record receiving the same for the Appellant.

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As regards, Ground 2; Counsel for the Appellant also submitted that the 195 Respondents filed a Civil Suit against Twaha Lubega in his individual capacity and later amended the Plaint to substitute him with Rich Dad Junior School which are two different Persons.

Counsel made reference to the case of *Yoka Rubber Industries vs Diamond trust*

properties Civil Appeal No. 8 of 2013 and submitted that the Appellant is a duly 200 incorporated private company limited by Shares registered in the year 2016 of which the Respondents did not or ignored to do due diligence when instituting the said suit in the lower Court in Mengo.

That the Respondents thus decided to sue Twaha Lubega in his individual capacity and yet after amendment they included the Appellant which is a 205 company and ought to have been properly served and included in the said Court proceedings before attaching the company's bank account in execution

Court decision

*Law Applicable*

Service of sermons is provided for under *Order 5 rule 1 (1) (a) CPR* that provides 210 that "when a suit has been duly instituted a summons may be issued to the defendant ordering him or her to file a defence within a time to be specified in the summons."

Under sub rule 2 of the same Order provides that service of summons issued under sub rule (1) of this rule shall be effected within 21 days from the date of

215 issue except that the time may be extended on application to the court, made within 15 days after the expiration of 21 days, showing sufficient reasons for the *extension. (Emphasis mine).*

*Order 29 Rule 2 of the Civil Procedure Rules* provides that,

"Subject to any statutory provision regulating service of process, where the suit is 220 against a corporation, the summons may be served –

- (a) On tlrc secretary, or on anA director or other pincipal officer of tLe corporation; or - 225

(b) By leauing it or sending it bg post addressed to ttrc corporation ot the regi,stered office, or if there is no registered office, then at tLte place uLrcre tlw corporation carries on business."

The Supreme Court of Uganda emphasized in the case of GeolfreA Gatete and Anor u. William Kuobe, Supreme Court Ciuil Appeal No. 7 of 20O5, that the primary objective of service is to make a Defendant aware of Court summons against him or her; and that service which does not realize that objective is ineffective.

I note that the trial Magistrate in his judgment on page 2 stated that the Defendants filed a written statement of defence and were at one point represented by a lawyer Sewankambo Hamza. That on t}:e 6 I O2l2O20 the said lawyer withdrew from the case. That they engaged another lawyer however after 6l 2l2O2O despite several adjournments neither the Defendants or their lawyer appeared in court, court decided on 27 l8l2020 that the case proceeds exparte against the Defendant.

A perusal of the lower Court record proves the following facts;

- 1. There is an Affidavit of service dated 22"d July 2019 which indicated that the Appellant had been served with a summons to file a defence, plaintiffs mediation summary chamber summons that she served the Appellant's Headmistress - 2. On the t9 July 2019, the Appellant's head teacher received a copy of the summons to a defence for Civil suit No.37 of 2019, this is well evidenced by the stamp affixed on the summons by the Appellant and the head teachers signature is affixed thereto. The Appellant also received a copy of the Plaintifi's case summary on the same date. - 3. There is also a copy of written statement of defence Iiled on the 29s July 2Ol9 by Sewankambo & Co. Advocates on record. The written statement of defence does not categorically state that it was Iiled on behalf of the 1"t

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Defendant (that is Twaha Lubega) neither does it state that it was jointly filed by the Appellant and TWaha Lubega. However, a perusal of the written statement of defence under paragraph 4 states; "The defendants further deny the contents of paragraph 3(a-c) of the ploint. In anslaer tlLereof, tlrc defendant shall auer and contend that he is the Director of Rich Dad Junior School limited the owner and registered proprietor of land compised in Kibuga Block 14 Plots 705 and 706 tuhich i.s deueloped uith the school known as Rich Dad Junior School"

- 4. The Appellant's Counsel then Sewankambo & Co. advocates filed a letter accepting the particulars of the proposed joint scheduling memorandum on the 27b of November 2019. The joint scheduling memorandum was filed with only the Appellant as the Defendant, the joint scheduling memorandum adopted the contents of the written statement of defence, to which Counsel for the Appellant (Sewankambo & Co. Advocates) acknowledged and signed. - 5. The Defendant/Appellant was represented by Counsel Sewankambo Hamza who appeared in court on 3'd December 2019. - 6. On the 6th February 2020, Counsel for Defendant told Court that "l have difficulty in proceedings with this case, I am related to the Plaintiff and I might not be objective". Court adjourned the matter. - ⁷. On th.e 9 I 07 12020, Counsel for the Respondents informed Court that the Appellant's Counsel proposed a date of 27 l8l2O2O. - 8. Court proceedings in MA 05 of 2O2O, Contempt proceedings, indicate that the Appellant was represented and even fi1ed Affidavit in reply deponded by Lubega TWaha Yiga. On 26ft February 2020, Counsel Senide Saad appeared in Court and proposed joint survey to resolve the problem. - 9. There is also a notice of change of Advocates dated 28fr February 2020 indicating that Okecha Baranyanga & Co Advocates had been instructed to represent the Appellant.

¹⁰ On

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- 280 It is evident from the record of the trial Court that the decision to proceed exparte against the Appellant was delivered on tl:re 27 /8/2020. This decision by the lower Court as per the record was premised on the fact that the Appellant had evaded Court and not attended the last three hearings. - 285 290 It is my finding that the Appeliant was served with hearing notices and was aware of the proceedings in Civil Suit No. 37 of 2019. Therefore, the Appellant is estopped from claiming that they were not properly served when it is evident that after the amendment to reflect the Appellant as the only Defendant, Counsel for the Appellant made appearance in Court representing the Appellant. Counsel for the Appellant even adopted the joint scheduling memorandum that confirmed the contends in the written statement of defence.

It is my conclusion that the Appellant nor its director who was the l"t Defendant were well aware of the ongoing court case never made appearances in Court. Therefore, the Appellants were effectively served in the lower Court and trial magistrate rightly adopted the written statement of defence.

295 Grounds 1 and 2 fails.

Ground 3; That the learned tial Magistrate erred in law and fact when trc held that the Applicant should pay general damages and costs yet it tuas not partA to the suit.

300 The trial Magistrate ordered that the Appellant pays general damages of UGX 5,000,000 for trespass and contempt of Court. The Appellant contends that he vi/as not party to the suit to be ordered to pay costs, it would be an injustice for the Appellant to pay the costs since the Respondent decided to pray for a garnishee order against the Appellant's bank account.

305 I am aware that an Appellate Court will not ordinarily interfere with an award of damages unless the trial Court acted on a wrong principle of law or the award was too high or too low as to be wholly erroneous estimate of the damage suffered by a party See. Robert Coussen us. Attomeu General 120001 UGSC2.

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It is trite law that general damages are awarded at Court's discretion, the object of an award of damages is to give the Plaintiff compensation for the damage, loss

or injury he or she has suffered see. Fredrick Nsubuga vs. Attorney General

- 310 - S. C. C. A No. 08 of 1999

The trial Magistrate rightly exercised his discretion in granting general damages and costs of the suit.

This ground also fails.

Therefore this Appeal is dismissed with costs. 315

## Elizabeth Jane Alividza

Judge

Date 24 1/06/2025

## Date

## Judgment on ECCMIS

1(nc/20

## Elizabeth Jane Alividza

Judge

Date $24^{+4}$ 66 2025