Busonga v Victory Christian Centre (Miscellaneous Application 466 of 2024) [2024] UGHCLD 206 (22 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION MISCELLANEOUS APPLICATION NO. 466 OF 2024** (ARISING FROM CIVIL SUIT NO. 309 OF 2023) JAMES BUSONGA:::::::::::::::::::::::::::::::::::: **VERSUS** VICTORY CHRISTIAN CENTER:::::::::::::::::::::::::::::::::::

# BEFORE HON, LADY JUSTICE ELIZABETH JANE ALIVIDZA

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### **RULING**

### **REPRESENTATIONS**

The Applicant was self-represented.

The Respondent was represented by $M/S$ Sseguya & Co. Advocates.

#### **INTRODUCTION** 15

The Applicant brought this Application under Section 96 and 98 of the Civil Procedure Act, Order 51 rule 6, Order 52 rules 1 and 3 of the Civil Procedure Act seeking orders that;

1. Leave be granted to the Applicant to file his written Statement of Defence out of time.

2. Costs of this Application.

The grounds of this Application are contained in the notice of motion and Affidavit in support briefly stating that; the Respondent never served him the summons among other issues.

<sup>25</sup> The Respondent filed an Affidavit in reply objecting to this Application

## BACKGROUND

The Respondent filed civil suit no. 309 of 2023 seeking declarations that the Applicant is a trespasser or that part of the Applicant's development encroaches on the Respondent's land situate at Kibuga lockT Plot967 Ndeeba, vacant possession, general damages, eviction

30 order and costs.

The Respondent served the 3'd defendant with summons to file a defence on the 15th August 2O23. The Respondent then effected substituted service through the New vision newspaper dated 23'd

35 October 2023. The Court then proceeded exparte, hearing the Respondent's case ard adjourning the matter for visit to the locus in quo.

The Applicant who did not file a defence brought this Application for leave to file a written statement of defence.

- 40 The Applicant in his Aflidavit in support of this Application contends that; - i. The Respondent filed civil suit No. 309 of 2023 and did not serve the Applicant with summons to file a defence and plaint. - 45 ii. That he learnt about the court proceedings late through the 2.a Defendant Henry Musoke Masembe on the 15th of February 2024.

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- 111. That by the time the Applicant got to know about Civil suit No. 309 of 2023, the time within which to file a written statement of defence had already lapsed. - That he has a plausible defence that raises several of both law and fact and triable issues that merit adjudication and hearing of the case interparty. lV. - That as an Applicant, he knows that this honorable court has inherent powers to make orders necessary to achieve the ends ofjustice and in that spirit to arnong others, extend time within which to file a written statement of defence. v - That failure to file a defence out of time was occasioned by the mistake of the Respondent who never served the Applicant with summons to file a defence. v1 - That he knows that in such circumstances, courts of law do not normally visit the omission, inadvertent and or negligence/dilatory conduct of the respondent on arl innocent litigant. vl1 - That the Applicants will suffer greatly if civil suit No. 309 of 2023 is heard and determined without according him a hearing on account of failure to file a defence. 65 Vlll - That the respondent will not be prejudiced in any way if the time for filing the defence us extended if at a-11 they are before court to seek ends of justice and that the applicant will be aided to defend himself lx

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- x. That the Applicant enjoys a non derogable right to be heard and should humbly be granted leave to file defence out of time. - 75 - xi. That it is in the interest of justice that the time within which to a file a defence be extended as the application has been hled without delay.

The respondent filed an affidavit in reply to this application deponed by Joel Mukisa Zziwa, contending that;

- 80 i. This application was not served on the respondent or its Advocate, that the respondent's advocate stumbled over the application late on ECCMIS plus the order/directive for filing the respective submissions dated 16 l4/2O24 and could not abide by the same, leave is sought to file and reply. - 85 ii. The application is a misconceived, a nonstarter in as much as it is personal, and has been overtaken by event as there is already a defence filed. - iii. The summons to file defence were served and endorsed by the 3.a defendant in the main suit who is a joint administrator with the applicant hereof, and since then has been moving to court with the applicant for the other cases, in which the respondent - is involved. - iv. That whereas the 3.d defendant received and endorsed the summons, there was no written statement of defence filed which he believe was deliberate.

- This court directed substituted service of summons to file $\mathbf{V}$ . defence which was done in the New Vision Newspaper of 23<sup>rd</sup> October 2023, evidence of which is already filed on record. - When there was a default to file the written statement of vi. defence, the respondent was forced to apply to proceed exparte, and has since then proceeded and closed its case. - That the contents of paragraph 3 of the applicant's affidavit in vii. support that he learnt about the court process late through the 2<sup>nd</sup> defendant Henry Musoke Masembe on the 15<sup>th</sup> of February 2024" cannot be true because the 3<sup>rd</sup> defendant, his biological son and living with him had long since received his summons on $10/05/2023$ . - viii. The contents of paragraph 4 of the affidavit are false. - The defendants in C. S No. 309 of 2024 are trading lies because ix. he came across a letter filed in this court by the defendants dated $21/2/2024$ claiming that he was never served with summons yet he was served with summons and acknowledged - The applicant is well aware that the $3<sup>rd</sup>$ defendant was served $X$ . with summons to file defence. - Whereas the respondent would not intend to oppose this xi. application, the applicant's disposition under paragraph 10 of his affidavit in support that the respondent will not be prejudiced in any way is not correct because it has already - proceeded and closed. They will be required to reopen and 120

service.

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redraw the preliminary documents which have otherwise already been filed.

xl1 In the event that this court is inclined to grant this Application, then it should be with costs to the respondent to remedy the <sup>125</sup> prejudice that sha-ll be caused to the respondent.

The Applicant in rejoinder contends that;

- <sup>1</sup> The purpose of service of summons is to procure attendance of court and the same has been served. - The Written Statement of Defence that the respondent writes about and a letter to the Honorable Judge, which the respondent was silent about, was an informal application intended as prayers to this honorable court to be allowed as party to the civil suit No.309 of 2023, that he was later advised to make a formal application instead of a mere letter. That is the reason he later filed this application. 11 130 - The purported written statement of Defence in respect of civil Suit No. 3O9 of 2023 was never admitted, it is not signed by any court officer, it remained as a draft and no court fees in respect of the same were ever paid 111 - The Applicant was never served with summons in respect of civil suit no. 3O9 of 2023 and yet he is a joint owner of the developments on Kibuga Block 7 Plot 968 which are purported to be encroaching on Kibuga block 7 Plot 967 . L40 lV. - That if there had been proper service of summons, the Respondent would not have moved court to use substituted V

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service. That the law requires that a Plaintiff must first seek service of summons in the ordinary way before resorting to substituted service

- That the paragraph 8 of the affidavit in reply is contradictory with paragraph 4 as one cannot claim that a written Statement of Defence was filed (under paragraph 4 of the Respondent's a-ffidavit in reply), and then claim that there was default in filing a written statement of defence 150 - The Applicant was entitled to personal service of summons as a joint owner of Kibuga Block 7 Plot 968 which was not done. That if service upon the 3.d Defendant in civil suit no, 3O9 of 2023 had been considered sufficient then there would not have been any need for substituted service as was done by the Respondent. v11. 155 - That the estate of the late Namatovu Christine was dissolved after the inventory was endorsed by court and the same is nonexistent, Kibuga Block 7 Plot 958 is owned by the lnd 61d Jrd Defendants to Civil Suit No. 309 of 2023 and is not part of the estate of late Namatovu Christine. 160 V111

# 16s ISSUES

The Applicant raised the following issue;

1. Whether the Applicant should be granted leaue to file a witten stqtement of defence out of time?

## 17O SUBMISSIONS

The Applicant relied on Order 51 rule 6 of the civil procedure Rules that provides for the power to grant or not to grant an extension of time is discretionary. He submitted that the primary consideration should be seeing to it that substantive justice is done without undue regard to lapses, mistakes or faults

He further submitted that the primary consideration by court in an application such as this is whether sufficient cause for the delay or failure to file a Written Statement of Defence is shown. He relied on the case of Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of 2OO3, it was held that:

"it is tite law that time can onlg be extended if sulficient cause is shoun. The suJficient cause must relate to the inabilitg or failure to take necessary step within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended".

The Applicant contends that he has sufficient cause as the same has been shown in the Affidavit in support of the Application. That the Applicant only found out about Civil Suit No. 309 of 2023 through the 2"d Defendant the Respondent did not serve the Applicant yet the Applicant lives on ring road street, Kibuga Plot 968 Block 7 and the respondent is located on Kibuga Plot967 Block 7 which is just below his residence meaning that the Respondent knows where the Applicant lives and could have served him but he dubiously chose not to do so. That instead the Respondent liled for substituted servi

n - 195 and the summons were put in the New Vision Newspapers of 23rd October 2023. This service was improper as there was a way of serving the summons on the Applicant in the ordinary way contemplated by the law. - 200 205 The Applicant further submitted that the Respondent in this case breached order 5 rule 8 of the civil procedure rules on service of summons as it was practicable to effect personal service upon the Applicant but the Respondent chose not to, that the respondent chose substituted service for no apparent reason. That order 5 rule 18 of the civil procedure rules substituted service can only be effected where for any reason the summons cannot be served in the ordinary way, in this case, the summons could be served in the ordinary way.

In response, the Counsel for the Respondent submitted that this application is incompetent as the Applicant has no locus to defend this suit individually or singly. That there is already a written statement of defence filed and signed by all the defendants, this application seems to have been overtaken by events therefore it is incompetent.

2to

215 Counsel for the Respondent also submitted that the main suit has long proceeded exparte and the plaintiff had closed its case, there is no order to set aside the exparte proceedings. Counsel further submitted that the application is premised on false hoods that the Appticant was never served with summons to file defence, that the 3.d defendant was served and he duly endorsed on the process on IOIOS12O23, that he was served in his capacity as administrator

which binds the estate, an affidavit of service was filed, subsequently court ordered service through substituted service that was done through New vision Newspaper of 23 llOl2O23. That the applicant took a misguided position by ignoring to file written statement of defence, hence they must bare the costs. 220

## z2s Court's decision

summons.

Time for filing a Written Statement of Defence is provided for under Order 8 Rule 1(2) of the Ciuil Procedure Rules that a defence should be filed within 15 days following service of the summons. It provides that where a Defendant has been served with summons in the form provided for by rule 1 (1) (a) of Order 5 of the Civil Procedure Rules, he or she shall, unless some other or further order is made by the court, file his or her defence within 15 days a-fter service of the

235 Order 51 Rule 6 of the Civil Procedure Rules gives the court power to enlarge time upon such terms, if any as the justice of the case may require for doing any act or taking any proceedings under the rules. It states that;

"Where a limited time has been fixed for doing ang act or taking ang proceedings under these Rules or by order of the court, the court shall haue pouter to enlarge the time upon such terms, if ang, as the justice of the case mag require, and the enlargement mag be ordered although the application for it is not made until afier the expiration of the time appointed or allowed; except that the costs of ang application to ertend the time and of ang order made on the application shall be borne bg 245 the parties making the application, unless the court shall otheruise ordertt

The power to grant or not to grant extension of time is discretionary. Court to extend time within which to file a defence, the Applicant must prove that there is a sufficient cause for the failure to do so.

250 Black's Law Dictionary Sth Edition at Page 231 defines "sufficient cause" to be analogous to "good cause" or'Just cause", which simply means "legally sufficient reason."

In the case of Rosette Kizito Vs. Administrator General and Others SCCA No. 9 of 1986, The Court stated that" sufficient reason (cause)

255 must relate to the inability or failure (of the applicant) to take a particular step in time"

In this Application, the Applicant contends that he was not served with summons, he therefore failed to file his written statement of defence in the required time period.

260 Seruice of summons

> The importance of service of summons was clearly laid out in the case of Geoffreu Gatete and Another u William Kuobe t20071 UGSC 7 (21 September 2OOV, the supreme court noted that;

265 "There can be no doubt that the desired and intended result of seruing sltmmons on the defendant in a ciuil suil is to make the defendant aware of the suit brought against him so that he has the opportunity to respond to it bg either defending the suit or admitting liabilitg and submitting to judgment. The surest mode of achieuing that result is

6v 1,L

270 seruing the defendant in person. Rules ofprocedure, hou)euer, prouide for such diuerse modes of serving summons that the possibilitg of seruice failing to produce the intended result cannot be ruled out in euery case."

Summons are deemed to have been effectively served in person, this is a rule under Order 5 rule 10 of the Ciuil Procedure Rules tllat provides that wherever it is practicable, service shall be made on the Defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient.

Under paragraph 4 ofthe Affidavit in reply, the respondent deponed that summons to file a defence were served and endorsed by the 3.d defendant in the main suit who is a joint administrator with the applicant.

A perusal of the civil suit, the Respondent filed an aflidavit of service deponed by Mugambe Godfrey on the 15tr, August 2023, under paragraphs 3 and 4 of the affidavit he states that he was instructed by the firm Sseguya& Co. Advocates to serve summons on the defendants, that on the lO/05/2023 before he proceeded to serve the defendants, the 3.d Defendant appeared in person to the said firm of advocates to serve an affidavit in reply in another case in which he is a party as co-respondent. That he used that opportunity to serve the summons to file the defence in the case on the 3'd defendant as a joint administrator on behalf of the estate being sued.

Order 5 rule 9 of the civil procedure summons, where there are more defe rules provides for servlce ndants than one, it provid of CS

28s

27s

29s that service of the summons shall be made on each defendant. The Respondent in this application only served the 3'd defendant with summons on the lOlOS/2O23, he did not effect personal service on the Applicant before resorting to substituted service.

On record, this Court directed that the plaintiff serves the defendants through substituted service as a result, court summons were published in the New vision News Paper of 23 I lO 12023, at page 42. After satisfying itself that the Order for substituted service was fulfilled, the case proceeded exparte under order 9 rule 10 of the civil procedure rules.

305 Substituted service is recognized and effective mode of service of summons, however it is only resorted to where court is satisfied that;

"for ang reason the summons cannot be serued in the ordinary wa!/....."

In the case of UTC VS. Katonqole and Another (1975)HCB 33 court held that;

310 "Proper effort must be made to effect personal seruice but if not possible, seruice mag be made bg an agent'

In this case, the Respondent contends that he served the 3'd Defendant who is a joint administrator of the estate of the late Namatovu Christine with the Applicant hence service was effective.

315 Whereas the defendants are joint administrators of an estate, there is no evidence that the 3.d Defendant was authorized to receive summons on behalf of the other administrators of the estate. <sup>13</sup> t

It is my finding that since service effected on only one administrator of the estate was not sufficient, the Respondent ought to have served all the administrators of the estate individually. The Respondent did 320 not make any effort to personally serve the Defendants individually before seeking to proceed exparte, he grabbed onto an opportunity to serve the $3^{rd}$ defendant at the time neglecting the $1^{st}$ and $2^{nd}$ defendants.

Therefore it is my conclusion that there was no effective personal 325 service on the Applicant before the Respondent effected substituted The Applicant was not effectively served with summons service. before the Applicant resorted to substituted service, the Applicant in my view has shown sufficient reason as to why he failed to file his defence in time. 330

This application is granted and the Applicant allowed to file his defence, costs should be in the cause.

The case 309 of 2023 is fixed for hearing on 9<sup>th</sup> December 2024. Hearing notices to issue. Incase the Applicant is unable to proceed, Court will go ahead with the exparte proceedings

So ordered I indzei

Elizabeth Jane Alividza

## Judge

22<sup>nd</sup> August 2024 340

## Ruling delivered on ECCMIS