Bank of Africa-Uganda Ltd v Buturumba & Others (Miscellaneous Application 230 of 2022) [2022] UGHC 121 (13 December 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA **MISCELLANEOUS APPLICATION NO. 230 OF 2022**

(Arising out of HCCS No. 76 of 2022)

## BANK OF AFRICA-UGANDA LTD ::::::::::::::::: APPLICANT

### **VERSUS**

#### 1. BUTURUMBA MUSA

# **2. THE COMMISSIONER LAND REGISTRATION**

3. ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# **BEFORE:** HON LADY JUSTICE JOYCE KAVUMA

# **RULING**

#### Introduction.

[1] This was an ex-parte application brought by chamber summons dated 12th August 2022. The Application seeks orders that time within which to serve summonses onto the 1st Respondent be extended, summons be served onto the 1st Respondent by substituted service by way of affixing the summons at the court premises and in a local newspaper or in such other manner as the court may order. It is brought under Order 5 rules 1 (2), 18 and 32 of the Civil Procedure Rules. $\mathcal{W}$

The grounds on which this Application is premised are set out in the motion and supporting Affidavit of the $1$ st applicant and briefly are:

- 1. Having exercised all due and reasonable diligence, the Applicant's advocates have been unable to effect service upon the 1st Respondent personally. - 2. In the interest of justice, service of court process upon the $1^st$ Defendant should be effected by substituted service.

#### Representation.

[2] The Applicant was represented by M/s OSH Advocates, solicitors and legal consultants. Counsel filed written submissions which I have considered in the making of this ruling.

#### Analysis and decision.

[3] The law governing extension of time within which to serve summons is Order 5 rule 1(2). Order 5 rule 1(2) provides that:

> "(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 twenty-one days, showing sufficient reasons for the extension".

From the foregoing, for one to obtain an order for extension of time. the following must be in place;

- (a) The application for extension ought to have been made within 15 days after the expiration of the initial 21 days. - **(b)**They must show sufficient reasons for the extension.

In the case of Rashida & Anor vs Adrisi (Miscellaneous Civil Application 9 of 2017) [2017] UGHCLD 29 my learned brother Judge Stephen Mubiru took time to interpret this order wherein he held that:

"The use of the word "shall" prima facie makes that requirement mandatory. This provision automatically invalidates summonses to file a defence which may have been issued and are not served within twenty-one days of issuance. It is meant to eliminate suits which are filed for the sake of achieving collateral objectives other than the genuine determination of justiciable disputes and as a means of expeditiously disposing of frivolous or speculative suits. It is thus settled law that the provisions of Order 5 of The Civil Procedure Rules are mandatory and should be complied with (see Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93)."

I will be guided by the above considerations in arriving at my decision.

[4] The instant suit was filed 5th July 2022 and summons to file a defence were issued by this court on the same date. The Applicant had 21 days within which to serve the summons upon all the Defendants in this suit. These days should have expired on 25th July 2022. The Applicant had 15 days until 8th August 2022 to have filed the instant application. This $\mathcal{W}$ application as earlier noted was filed on 12th August 2022.

It therefore follows that the instant application was filed late.

The power of the Court to extend time is restricted, on a plain reading of the rule, to applications made within fifteen days reckoned from the date of expiry of the twenty-one days within which service of the summons should have been effected.

The words used by the Rules Committee for conveying its intention are unambiguous and the only plain, literal and logical interpretation that can be given to the provision read as a whole is that the Court cannot extend time in respect of applications made beyond the fifteen days. (See **Rashida & Anor**(supra)).

[5]Order 5 rule 1(3) of the Civil Procedure Rules provides that:

"(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."[Emphasis mine]

In the instant case, since the 21 days had expired, the next step was to seek extension of time within which to serve the summons within the time stipulated under Order 5 rule 1(2). It is only after grant of such extension, that a platform upon which leave to serve by way of substituted service would be created.

As already noted above, the instant application was filed four days late. It is not possible to revive the summons after this lapse, the suit lapsed the moment the summons became stale for non-compliance with the requirements of Order 5 r 1 (2) of The Civil Procedure Rules.

Consequently, this application is dismissed and Civil Suit No. 76 of 2022 is subsequently struck out with no order as to costs.

I so order.

Dated, delivered and signed at Mbarara this....................................

Joyce Kavuma Judge