Bagamba v Nakibuuka & 3 Others (Civil Appeal 8 of 2025) [2025] UGHCLD 51 (31 March 2025)

Full Case Text

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **[LAND DIVISION]**

**MISCELLANEOUS CIVIL APPEAL NO. 008 OF 2025**

**(ARSISING FROM MISCELLANEOUS APPLICATION NO. 120 OF**

### **2024)**

*(ALL ARISING FROM CIVIL SUIT NO. 058 OF 2024)*

**BAGAMBA FREDRICK :::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

- **1. NAKIBUUKA FARIDAH** - **2. COMMISSIONER LAND REGISTRATION** - **3. KIVUMBI KENNETH ::::::::::::::::::::::::::::::::::::::::: RESPONDENTS** - **4. BUKENYA PATRICK**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

### *Introduction:*

1. This is an appeal by Notice of motion against the ruling of His Worship Kagoda Ntende Samuel M, brought under Sections 98, 79 (1)(b) of the Civil Procedure Act Cap 282, Section 37 of the Judicature Act and Order 44 rules 1(1) (u), Order 50 rule 8, Order

51 rule 6 and Order 52 rule 1,2 & 3 of the Civil Procedure Rules (CPR) for orders that: -

- i) That the ruling of the Assistant Registrar His Worship Kagoda Ntende Samuel M in the High Court [Land Division] Misc. Application No. 120 of 2024 arising from High Court Civil Suit No. 058 of 2024; Bagamba Fredrick vs Nakibuuka Faridah & 3 others dismissing High Court [Land Division] Misc. Application No. 120 of 2024 be set aside and or vacated. - ii) That the orders in High Court [Land Division] Misc. Application No. 120 of 2024 arising from High Court Civil Suit No. 058 of 2024; Bagamba Fredrick v Nakibuuka Fridah & 3 others be granted. - iii) The costs of this Application be provided for.

### *Background;*

2. The Applicant filed HCCS No. 058 of 2024 for fraud and trespass to land, compensation, permanent injunction, general damages and costs and two applications for an interim order vide MA No. 121 of

2024 which was granted and MA No. 120 of 2024 for a temporary injunction from which this appeal arises.

- 3. The Application for a temporary injunction was dismissed on preliminary objections raised by the Respondents that the application was not signed, sealed and endorsed by Court as required by law and that the affidavit filed on Court record was not dated rendering the application fatally defective thus the dismissal. - 4. The applicant is dissatisfied by the said ruling hence this appeal.

## *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavit in support of the application deposed by **BAGAMBA FREDRICK** and are briefly that: - i) The Applicant filed HCCS No. 058 of 2024 and subsequently MA No. 121 of 2024 for an interim order which was granted and MA No. 120 for a temporary injunction. During the pendency of the application for temporary injunction Court visited locus and it was established that the 1st Respondent had since disposed of part of the suit land to the 3rd and 4th Respondents who were not party to HCCS No. 058 of 2024 at the time.

- ii) The Applicant accordingly filed an amended plaint and an amended application for a temporary injunction. On 3rd October 2024, MA No. 120 of 2024 was fixed for mention on 8th October 2024. The Amended Chamber summon was served on 4th October, 2024. - iii) The matter was fixed for mention on the 8th day of October 2024 and hearing on 25th October 2024 and an amended chamber summons was admitted/ signed by the Learned Registrar on ECCMIS on 13th October 2024. - iv) The Learned Registrar gave timelines to the parties to file their respective pleadings following which he delivered a ruling on 29th January 2025 dismissing HCMA No. 120 of 2024. The Applicant being dissatisfied with the said ruling appeals the same on the following grounds; - 1) **The Learned Assistant Registrar erred in law and fact when he held that the Appellant's Application vide HCMA No. 120 of 2024 was incompetent, defective and incurable since the amended chamber Summons was not signed, sealed and endorsed by Court before being served upon the Respondent.**

- 2) **The Learned Assistant Registrar erred in law and fact when he held that the Appellant's affidavit in support of the amended chamber summons vide HCMA No. 120 of 2024 was defective, incompetent and incurable since it was not dated by the deponent.** - 3) **The Learned Assistant Registrar erred in law and fact when he failed to properly apply the law to the facts in accordance with the parties' pleadings in relation to the preliminary objections hence arriving at an erroneous decision to dismiss HCMA No. 120 of 2024 for a temporary injunction with costs.** - V. That it is just and equitable that the appeal is allowed, the order of the Deputy Registrar is set aside and/ or vacated and orders in MA No. 120 of 2024 are granted.

#### *1st Respondent's evidence;*

6. The application is opposed to by an affidavit in reply deposed by **SSENDAULA GODFREY,** the 1st Respondent's lawful attorney and briefly states as below;

- *i)* That the appeal is frivolous and vexatious, grossly misconceived, superfluous and quite incompetent, improperly before court, it is intended to prejudice, embarrass and frustrate the 1st Respondent, the appellant is on a fishing expedition altogether and does not raise any ground warranting the grant of the appeal thus it should be struck out with costs, that the application vide Ma No. 120 of 2024 was incompetent and defective since it did not comply with the law. - *ii)* That the amended Application vide MA No. 120 of 2024 was admitted and signed by the Learned Registrar on ECCMIS on 13th October 2024 but the same had already been served upon my Lawyers of M/s Sam Kiwanuka & Co. Advocates on 4th October 2024. - *iii)* That the application was admitted and signed after it had been served upon my lawyers and ECCMIS did not repeal and or amend the law in respect of mandatory signing, endorsement and sealing of Applications such as Chamber summons before being served upon the adverse party.

- *iv)* That the Learned Registrar did not err in law and fact when he held that the Appellant's Application was incompetent, defective and incurable as the same did not comply with the law and the Registrar properly applied the facts before him in relation to the preliminary objections which were sustained and this Court does not have powers to grant the prayers sought by the appellant as this Court cannot re evaluate evidence which was not evaluated by the Learned Assistant Registrar. - 7. The application is opposed to by an affidavit in reply deposed by **BUKENYA PATRICK,** the 4th Respondent who is as well represented by M/s Sam Kiwanuka & Co. Advocates and the contents therein are similar to those in the 1st Respondent's affidavit thus I find no need to repeat the same. - 8. The Appellant also filed an affidavit in rejoinder to the 1st and 4th Respondent's affidavits in reply stating briefly that; - i) That the physical signing and sealing of Chamber summons is no longer mandatory and that failure by the Court to physically sign and seal the chamber summons does not render them

incurably defective, the same was competent and curable as per the law.

ii) That the Learned Registrar failed to properly apply the law to the facts in accordance with the parties' pleadings in relation to the preliminary objections hence arriving at an erroneous decision to dismiss HCMA No. 120 of 2024. That this Court has power to hear this appeal, allow it and grant all orders sought by the appellant.

## *Representation;*

9. The applicant was represented by Counsel Yiga Steven Geofrey and Nsamba Lamech of M/S Kiiza & Co Advocates whereas the 1st and 4th respondents were represented by Counsel Kiwanuka Peter Samuel of M/s Sam Kiwanuka & Co. Advocates. Parties proceeded by way of written submissions which this court has relied on in the determination of this application.

## *Grounds for determination;*

1) **The Learned Assistant Registrar erred in law and fact when he held that the Appellant's Application vide HCMA No. 120 of 2024 was incompetent, defective and incurable** **since the amended chamber Summons was not signed, sealed and endorsed by Court before being served upon the Respondent.**

#### *Resolution and determination of the grounds;*

*Ground one;* **The Learned Assistant Registrar erred in law and fact when he held that the Appellant's Application vide HCMA No. 120 of 2024 was incompetent, defective and incurable since the**

# **amended chamber Summons was not signed, sealed and endorsed by Court before being served upon the Respondent.**

- **11.** Counsel for the Appellant submitted that the 1st & 4th Respondents before the Assistant Registrar argued that the substantive Application offended the law because the Amended Chamber Summons that was served upon them was not signed, sealed and endorsed by the Court thus the application was incompetent, defective and incurable making reference to the authority of **Isingoma Michael v Law Development Centre HCMA No. 234 of 2019.** - 12. That the original chamber summons in the substantive application was filed on the 17th day of January, 2024, electronically admitted, signed and also physically signed, sealed and endorsed by Court. On 4th October 2024, the Amended Chamber Summons was filed and served on Counsel for the 1st and 4th Respondent. On 08th October 2024, the application came for mention and was fixed for hearing on 25th October 2025 upon which Court issued a hearing notice. That the failure by the Learned Assistant Registrar to physically sign and seal the Amended Chamber summons did not render them incurably defective. Thus, the argument that the Learned Registrar erred in law and fact when he held that the substantive application was incompetent, defective and incurable since the amended chamber summon was not signed, sealed and endorsed by Court.

- 13. Counsel for the Respondents in reply stated that the Learned Assistant Registrar was extremely right to dismiss HCMA No. 120 of 2024 because it offended the law specifically Order 5 rule 1 (5) of the Civil Procedure Rules. - 14. The Learned Deputy Registrar dismissed HCMA No. 120 of 2024 on a point of law as raised by the Respondents that the Chamber summons served onto the Respondents was not signed and sealed by this Honourable Court. A cursory perusal of the Court record and the pleadings filed by both parties reveals the following; - i) The Appellant filed amended Chamber summons on 4th October 2024 and the same was served onto Counsel for the 1st and 4th Respondents as duly admitted in the Appellant's affidavit in support of the Application paragraph 13 (b) and paragraph 5 (o) of the Affidavit in rejoinder.

- ii) The amended chamber summons was only signed and admitted by the Learned Registrar on ECCMIS on 13th October 2024 as per the ECCMIS screenshot attached on the appellants affidavit in support and in rejoinder marked V. - 15. From the above dates reckoned, its quite evident that the Appellant indeed served the application before it was signed and endorsed by Court. - 16. A chamber summon is a formal application made to Court typically used for interlocutory matters and where the law dictates so. A chamber summon is not just a procedural document but a summons in itself. - 17. **Order 5 rule 1 (5) of the Civil Procedure Rules SI 71-1** provides that "Every such summons shall be signed by the judge or such officer as he/she appoints and shall be sealed with the seal of Court". Thus, for a chamber summon to be valid it must be signed by an authorised judicial officer to confer legitimacy, sealed with the Court's official seal and failure to meet these formalities renders the summons defective. - 18. The Appellant's Counsel ought to have had the Amended Chamber summon signed by the Learned Registrar prior to

serving the same onto the Respondents, otherwise the application as was served onto the Respondents was defective in that regard.

- 19. I am fortified by the decision of Hon Justice Florence Nakachwa in the decision of **Nyanzi Muhammad v Nassolo Harriet & 2 others MA No. 14 of 2021[2023] UGHCCD 128** where she held that serving an unsigned and unsealed application on the Respondent by the Applicant is fatal and uncouth since it's a mandatory requirement for any summons issued by Court to be signed and sealed by a judicial officer before it's served onto the opposite party. - 20. Counsel for the Appellant ought to have ensured that the Application was signed and sealed by Court as a mandatory requirement before serving the same onto the opposite party/ Respondents. Therefore, this ground is resolved in the negative.

**Ground two; The Learned Assistant Registrar erred in law and fact when he held that the Appellant's affidavit in support of the amended chamber summons vide HCMA No. 120 of 2024 was defective, incompetent and incurable since it was not dated by the deponent.**

- 21. Counsel for the Appellant argued that the deponent's failure to date an affidavit could not vitiate it for such defect would be curable under Article 126 (2) (e) of the Constitution. Counsel relied on the authority of **Kasala Growers Co- operative society v Kakooza Jonathan & another SCCA No. 19 of 2010**. He further argued that there in now a general trend that is towards taking a liberal approach in dealing with defective affidavits which is in line with Article 126 (2) (e) of the Constitution. - 22. The Respondents on the other had argued that the learned Assistant Registrar was right to uphold the preliminary objection since the affidavit was indeed not dated. Counsel for the Respondents relied on the provisions of Section 6 of the Oaths Act and Section 5 of the Commissioner for oaths (Advocates) Act to further argue that it is mandatory that every oath or affidavit must be dated, for it to be valid and relied on the authority of **Balikuddembe Jumba Peter & 2 other v Jaggwe Mbuga MA No. 976 of 2012** where Court found the affidavit to be defective as it did not state the date when it was taken. - 23. Counsel further cited the authority of **Kasirye Byaruhanga & Co. Advocates v UDNB SCCA No. 2 of 1997** where Court held

that Article 126(2)(e) is not a magic wand in the hands of defaulting litigants. Counsel further pointed out the discrepancies in the said affidavit which I find imprudent to delve in as it discusses the merits of the application and this appeal is premised on dismissal of the application based on preliminary points of law.

- 24. Counsel for the Appellant relied on the provisions of Article 126 (2) (e) of the Constitution to argue his way out of the objection. Court in **Hon. Theodore Ssekikubo & 2 others v The Attorney General & 4 others Constitutional Application No. 6 of 2013** citing **Banco Arabe Espanol v Bank of Uganda Civil Application No. 8 of 1998**, held that a general trend is towards a liberal approach in dealing with defective affidavits, this is in line with the constitution. Rules of procedure should be used as handmaidens of justice but not defeat it. - 25. As rightly cited by Counsel for the Appellant **Section 6 of the Oaths Act** and Section 5 of the **Commissioner for Oaths (Advocates) Act** states that every Commissioner for Oaths or notary public before whom any oath or affidavit is taken or made

under shall truly state in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

26. The Appellant ought to have dated the affidavit in support of the Amended Chamber Summons. However, this was a defect that could be cured. Court in **Kasaala Growers Co-operative Society**

**v Kakooza Jonathan & Anor SCCA No. 19 of 2010**, drew a clear distinction between an affidavit which is defective and one which does not comply with the requirements of law. The one which is defective is curable and the one which does not comply with the law is incurable. An affidavit which is undated is defective but is one that can be cured.

27. The Appellant's affidavit in support of the Chamber summon in HCMA No. 120 of 2024 was defective by virtue of it being undated and the same could be cured unlike one that doesn't comply with the provisions of Order 19 of the Civil Procedure Rules and other laws relating to drafting, preparation and filing of affidavits.

*Ground three;* **The Learned Assistant Registrar erred in law and fact when he failed to properly apply the law to the facts in accordance with the parties' pleadings in relation to the**

# **preliminary objections hence arriving at an erroneous decision to dismiss HCMA No. 120 of 2024 for a temporary injunction with costs.**

- 28. Counsel stated in his submissions that the appellant had on the 17th day of January 2024 filed a chamber summon which was electronically admitted and signed and also physically signed, sealed and endorsed by Court. That on 4th October 2024, the Appellant filed and served an amended chamber summon which was dismissed because it was not signed, sealed and endorsed by Court. - 29. That even if the amended chamber summons was incurably defective, the application would have proceeded on the original chamber summons other than rendering the whole application incompetent. That the law allows parties to amend their pleadings but the argument and presupposition that once an amended pleading is struck out, the party then has no pleading left on record would ignore the fact that a suit is not instituted by an amended pleading but rather original pleading. - 30. Counsel for the Respondents in return argued that the Respondent filed HCMA No. 1587 of 2024 seeking to amend his

plaint and chamber summons so as to add the 3rd and 4th Respondents and the same was granted. Therefore, the appellant's argument that the Learned Registrar ought to have proceeded on the original application is untenable at law. He further relied on the authority of **Kakika Yekodiya & Sserunjongi William (Administrators of the Estate of the late Ereinest Katamba) vs Mulindwa Ronald Ssemakula & Finca Uganda Ltd Civil Suit No. 113 of 2013**, that once an amendment is ordered, the documents previously filed in Court become dead stock and this means that the defendant has been put to an unnecessary expense in defending allegations that were not clearly set out in the pleadings.

- 31. I can't agree more, the Appellant amended his pleadings by way of Court order and upon amendment, the old pleadings ceased to have any legal effect. The Appellant's argument that the Learned Registrar ought to have considered the original pleadings is legally untenable and the same would be contrary to the orders issued vide HCMA No.1587 of 2024. - 32. That notwithstanding, the 3rd and 4th Respondent were not party to the initial proceedings vide HCCS No. 058 of 2024 and

Misc. Application No. 120 of 2024, the Appellant filed an application to amend and add them onto the proceedings and the Appellant's argument that the Registrar should have relied on the original application would subject the 3rd and 4th Respondents to being condemned unheard.

- 33. Be that as it may, the Application was dismissed on the basis of preliminary points of law arising out the pleadings which was the amended chamber summons and the same were capable of disposing of the entire application without delving into its merits. - 34. For the reasons given in this ruling, I don't find any justification for interfering with the findings of the ruling by the Learned Assistant Registrar thus the ruling vide HCMA No. 120 of 2024 is upheld - 35. Costs shall abide the outcome of the main suit.

### **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

#### **31/03/2025**

## **Delivered electronically via ECCMIS on the 31st day of March**

**2025.**