Byenkya and Another v Asumani Mugenyi (Civil Appeal 5 of 2002) [2003] UGCA 25 (10 October 2003)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## **AT KAMPALA**

### CORAM:

$\mathsf{S}$

$10$

HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA

### CIVIL APPEAL No.05 of 2002

#### **BETWEEN**

# 1. YOSAMU BYENKYA 2. MUGENYI RWESE::::::::::::::::::::::::::::::::::: 15

### AND

# ASUMANI MUGENYI::::::::::::::::::::::::::::::::::RESPONDENT $20$

(An appeal from the judgement and decree on appeal to the High Court of Uganda at Kampala (Maitum J) dated 11th December 2001 in Civil Appeal No.50/2001)

# **JUDGMENT OF BYAMUGISHA, JA**

This is a second appeal. The respondent filed a suit in the Chief Magistrate

Court at Hoima for recovery of land against the appellants. The plaint was 30 first filed on the 21st July 1997 against the first appellant. Summons was issued for service. No service was effected on the first defendant until the $7th$ October 1998. On 21st October, the first defendant filed a written statement

of defence in which he averred that the summons that was served on him by the plaintiff had already expired by the time they were served. On the 20tl' December the respondent made an application under Order I rule l0(2) and (4). ofthe Civil Procedure Rules to add the second defendant as a

- ) pafty to the suit. The application came up for hearing before Her Worship C. K. Mudhasi(hereinafter called the first Chief Magistrate). The first appellant opposed the application. ln the written submissions filed by his could be added. The reason for saying so was that the surnmons was not counsel he claimed that there was no valid suit to which the second appellant - l0 served on him within the time stipulated by the rules.rln reply counsel for the n4L respondent stated that the issue of summons couldrPlbe summarily determined in the application that was betbre court. In her ruling dated 261041200 the learned Chief Magistrate over ruled the objections raised by counsel as she considered thern irrelevant to the application that was before - t5 her. No appeal was preferred against this finding. The learned Chief Magistrate allowed tl.re application. The respondent was granted leave to add the second defendant and to arnend the plaint.

The plaint was accordingly arnended. Fresh surnmons was issued fbr service 20 on both defendants. Consequently they filed separate written statements of

defence on the 22''d May 2000. The first appellant in his written statement of defence avered in paragraphs one thereof as follows: -

on the 25/7/1997 for service on lhe l" Defentfuttt ruithitt the prescribetl time on the I't (lefendfi,rl h,os tlol served until on the 7/10/98 when the stid su,trrrrons hal alreody heconrc slule, null tnd void and of no effact." "At the triol the I't Defendont will raise o prelintinory objecliott that the suit is bud in ltw in lhut the sununons to the origintl suit whiclt tuos issued

t0 Onthe 910512001 the parties were in court before another Chief Magistrate. The case was coming for hearing. After agreeing on the issues Counsel for the appellants raised preliminary objections as contained in the written statement of defence of the first defendant. And for purposes of the matter now before court the issue of service of summons was one of them. On

l5 27 161200l the leamed Chief Magistratg His Worship Bashekana Sanyu, (hereinafter called the second Chief Magistrate) upheld the preliminary objections and disrnissed or struck out the suit with costs to the appellants.

Being dissatisfied with the ruling, the respondent lodged an appeal in the High Court against the order of dismissal. The memorandum of appeal filed on his behalf the respondent listed the following grounds namely: -

1. That the learned trial Chief Magistrate erred in law and facts when he

- entertained a preliminary objection that had been earlier over ruled by $\mathsf{S}$ his predecessor upon which no appeal was preferred. - 2. The learned trial Chief Magistrate erred in law and facts when he heard and ruled upon preliminary objection on a matter that was resjudicata - 3. That the learned trial Chief Magistrate erred in law and facts when he $10$ *exercised justice by giving undue regard to technicalities and* consequently reached an unfair and unjust decision thereby denying *the plaintiff substantial justice.*"

He asked court to make the following orders:

- 1. That the order of the Chief Magistrate dismissing the suit be set aside. 15 - 2. That the plaintiff's suit be reinstated and be heard on its merits. - 3. That the costs of this appeal and the lower court be granted to the appellant."

The learned appellate Judge in her judgement disallowed the first ground of appeal. She contended that the first Chief Magistrate did not actually 20

entertain the preliminary objection that the application was incompetent for lack of service within the requirement of **Order 9 rule 16(1)**. On the second ground of appeal, the learned appellate Judge dismissed it. She stated *res judicata* cannot stand because, the first Chief Magistrate never pronounced

- herself on the substance of the preliminary objection which was that the $\mathsf{S}$ purported service of summons after the lapse of twelve months was null and void. The learned appellate Judge set aside the order of the first Chief Magistrate allowing the amendment of the plaint but granted the respondent's prayer that the suit be reinstated and be heard on merit. She set - aside the order of the second Chief Magistrate with regard to costs and $10$ ordered each party to bear its own costs.

The appellants were dissatisfied with the decision and lodged the instant appeal. The memorandum of appeal contains the following grounds namely:

$15$

1. "That having held that the first summons served by the respondent on the $1^{st}$ Appellant after lapse of the prescribed time was a nullity and that fresh summons could not cure the first summons which had legally expired before being taken out for service on the $1^{st}$ Appellant, the

$\mathsf{S}$

learned appellate Judge erred in law in directing the Respondent's invalid suit to be reinstated for trial on the merits.

- 2. That having dismissed the Respondent's Appeal on all the grounds the learned appellate Judge erred in law in not awarding to the appellants - the costs of the said Respondent's dismissed appeal. $\mathsf{S}$ - 3. That the learned appellate judge in law in directing each of the parties to the said dismissed appeal of the respondent, to bear their own costs. - 4. The said errors complained of herein, caused and/or occasioned a *miscarriage of justice to the Appellants.*" - The appellants craved for the following orders namely $10$ - a) *Allowing the appeal*

- b) Setting aside the following orders by the learned appellate judge: - varying the ruling of the Chief Magistrate dismissing the i) respondent's suit with costs and substituting thereof an order dismissing the said suit with costs to the appellants. - ii) directing the respondent's dismissed suit to be reinstated for trial by the Chief Magistrate on the merits - directing each party to said dismissed appeal of the iii) respondent to bear their own costs and substituting thereof an

order directing the costs of the said dismissed appeal of the respondent to be paid by the respondent to the appellants.

- c) Directing the costs of this appeal to be paid by the respondent to the appellants. - The respondent filed a cross-appeal. It contains the following grounds $\mathsf{S}$ namely: - - 1. The learned appellate Judge erred in law and facts when she held that the appellants preliminary objection was kept in abeyance and therefore not considered by the first Chief Magistrate. - 2. The learned appellate Judge erred in law and facts when she held that $10$ the second summons issued by the first Chief Magistrate were a nullity and dismissed the respondent's appeal. - 3. The learned appellate Judge erred in law and facts when she held that the order of the first Chief Magistrate was a nullity. - He proposed for orders that; $15$ - 1. The Cross-appeal be allowed with costs. - 2. *The appellants' appeal be dismissed with costs.* - 3. That the judgement of the High Court be varied to the extent of the grounds raised in the cross-appeal.

When the lnatter came befbre us, Mr Emesu, learned counsel for the appellant, argued the first and fourth grounds ofappeal separately and the second and third together. I shall try to handle them in the same fashion.

5 In submitting on the first ground Mr Emesu stated that the learned appellate Judge was wrong in ordering the trial of the suit on merit because having found that the suit was a nullity the issuing of fresh surnl'nons to the amended plaint could not cure this. He cited the case of Makula

## lntcrn:rtional Vs Cardin:rl Enrmirnucl Nsu bugir&Arrothcr | 1982 |

t0 H. C. B.ll for the legal proposition that a court of law cannot sanction an illegality and that once an illegality has been brought to the attention ofthe thereon by the parties. Learned counsel contended that the learned appellate Judge should have made an order dismissing the suit since there is no legal t5 justification for the order. court, it overrides all questions of pleading, including any admissions made

the respondent, conceded that although the surnrnons was served after one year, the suit was never dismissed by court as required by Order 9 rule In responding to the above subrnissions, Mr Muhirnbura, learned counsel for

:0 l6(l) of the Civil Procedure Rules. He contended that when learned counsel for the appellants' raise objections before the first Chief Magistrate

s and the said objections were held to be irrelevant, the appellants' preferred no appeal, review or revision challenging the decision of the fir'st Chief Magistrate. He pointed out that when the first Chief Magistrate allowed the application to add the second appellant, fresh summons were issued on s 05/05/2000.

Learned counsel supported the decision of the High Court in ordering the reinstatement of the suit because the court has inherent powers under sections l0l and 103 of the Civil Procedure Act to make orders for the l0 ends ofjustice or prevent an abuse of court process.

The gist of the complaint in this appeal as I understand it, is that summons that was issued for service on the first appellant ,i'.i. ,.\*.a after the expiry of the time allowed by the rules and therefore they were null and void.

The provisions that currently govern the issue and service of surnmons on the defendant are found under Order 5 rule l(a) ofthe Civil Procedure Rules, which states that: -

"l(a) Service of summons issued under subrule (t) shall be effected 20 within hventy one days from the date of issue; exce pt that the time may

be extended on application to Court, made within fifteen days after the expiration ofthe twenfy one days, showing sufficient reasons for the extension."

mandatory under this rule.

I The same rule provid6 that if no application is made for enlargement of time, or if the application is made and it is dismissed, then the suit would be dismissed without notice to the plaintiff. Order 9 rule l6(1) which the leamed appellate Judge relied on provide that where summons have been issued for service on the defendant and returned unserved, or a plaintiff fails for a period of one year to apply for fresh sumrrons, the court is empowered to dismiss the suit. The power to dismiss the suit is discretionary and not ) l0

In the matter now before us, there is no dispute that the summons that was first issued for service on the first appellant was not served within the period stipulated by the rules. The plaintiff s suit was never dismissed by court as the rules stipulate. The respondent did not apply for fresh summons as the a rule stipulate? Apparently it is the old summons that were served on the first appellant. He filed a written statement of defence and protested the service of the expired summons on him. The rules do not seem to provide a 20 procedure as to what steps a defendant who is served with surnmons that had

expired is supposed to take. Order 9 rule lA states that the filing of a defence by the defendant

"shull ttot be tre ed as o waiver by him of any irregularity in the suntnrons or service of the summons or in tny order giving leave to serve

: the sununons out ofiurisdiclion or e-rtending the vilirlity of the sumntons for the purpose of service."

The first appellant was quite right in my view to challenge the validity of the sumrnons that were served on him when he filed the first written statement of defence.

l()

Was the defect cured by subsequent orders of the tlrst Chief Magistrate? In order to answer this question, regard must be had to the fact that the first appellant did not challenge the ruling of the first Chief Magistrate granting the respondent leave to arnend his pleadings. In rny view he had a right to l5 appeal against that ruling in parlicular the learned Chief Magistrate's ruling that the objections he raised were irrelevant to the matter that was before her.

On the other hand, the second Chief Magistrate inherited a court record with arnended pleadings. They were properly before court since no appeal was t) preferred against the ruling granting leave to amend the pleadings. The

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learned appellate Judge and the second Chief Magistrate were under the erroneous impression that the issue of service of summons remained in abeyance. It was, in my view, overtaken by events. The case of **Makula International** that Mr Emesu relied upon is inapplicable to the facts and circumstances of this appeal. The illegality that was pointed out in that case was that an award of Shs. 1,900,000/= as instruction fee was manifestly excessive and contrary to the law. The appellate court could not allow it to stand. In the instant appeal, what the second Chief Magistrate purported to dismiss was the first plaint and not the amended one. Moreover section 103

$\mathsf{S}$

of the **Civil Procedure Act** gives power to court to amend defects. It states $10$ that: -

"The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceedings in a suit, and all necessary amendments shall be made for the purpose of $15$ determining the real question or issue raised by or depending on the proceedings."

It is my considered opinion that the provisions of this section take care of the appellants' complaint. The first Chief Magistrate in her wisdom allowed the 20

![](0__page_13_Picture_0.jpeg)

respondent to amend his plaint and issued fresh summons for service on the defendantE The appellants were served with the fresh summons in the tirne stipulated by the rules and they filed their written statements of defence. The defects that had taken place previously were buried as it were with the old

- : plaint. The appellants in my view cannot be heard cornplaining that service of summons was effected after a period of one year. I think I have said enough to show that the learned appellate Judge erred in law to find and hold as she did that the order of the first Chief Magistrate was a nullity when no appeal had been preferred against it. Order 9 rule l6(1) under which the - t0 leamed appellate Judge relied is clear in its wording. It states that if summons are not served within a period of one year, the suit may be dismissed. The respondent's suit was never dismissed as the rule provides. The defects in the service of summons were comected when the first Chief Magistrate issued fresh summons for service on the appellants. I therefore l5 agree with the submissions ofcounsel for the respondent that the learned appellate Judge erred to hold that the preliminary objections were kept in

abeyance and that the fresh summons were a nullity. However, I agree with Mr Emesu that the learned appellate Judge erred when she upheld the decision of the second Chief Magistrate and then went ahead to reinstate the 20 respondent's suit. Be that as it may, the first ground of appeal would fail.

i't The second and third groundappeal{ were concerned with costs. While submitting on these grounds Counsel for the appellants pointed out that the all the grounds ofappeal filed by the respondent were disallowed and

l section 27 of the Civil Procedure Act costs follow the event and the learned appellate Judge gave no reasons for ordering each party to bear its own costs. therefore there was nojustihcation for the learned appellate Judge to order each party to bear its own costs. He pointed out quite rightly that under

Counsel for the respondent supported the decision ofthe appellate Judge in ordering each party to bear its own costs. He pointed out that the proviso to r,'1,' the section couldnl over ride the power given by the section.

The provisions ofsection 27(supra) as was pointed out by both counsel govern the award of costs in civil litigation. The section states that: t5

"(I) Subject lo sttclt cotrdilions ond linililiotrs os nroy be prescribed, ond to the provisions of ony lawfor the tinrc being inforce, lhe costs of and l0 ittcident to all suits sholl be the discrelion of lhe court or judge and tlte court orjudge shall havefull powers to deterntine by whom and out of whil property and lo what exlent suclt cosls ore to be poitl, ud to give tll judge hus tto jurisdiclion to try lhe suit sholl be no btr lo the e-rercise of necessory direclions for the purposes oforesaid, Thefacl tltot the court or

such powers:

Provided thol cosls of any tctiotr, ctruse or rnoller or issue re oso n oth e rw ise order. " sltullfollon lhe event unless the court orjudge shallfor good

l5 Deterrnining as to who should bear the costs of a civil litigation is rnatter l0 within the discretion of the court or the j udge. The discretion is unfettered. Like any other discretion, it must be exercised judicially, and a court or a judge ought not to exercise it against a successful pafty, except for good A. C.732. A passage from the judgernent of Lord Atkinson was quoted with approval in tl.re case of Kiska Ltd Vs De Aneelis [969] E. A.6. The passage at page 8 says that: reason connected rvith the case, see Donald Campbell Vs Pollak 119271

"It is well estoblislted when lhe decisiott of suclt nmtter os the right of a litigant to recover cosl.s rls left to the discretion of the Judge who lried the cose, tltnl rliscretion musl be based onficls... If, however, there be, infoct 20

sonrc grounds lo support the exercise by lhe lrial Jtulge of the discrelion he purports to exercise the question of the sufJicienc-y of those grouruls for tltis purpose is entirely o nrotlerfor the Judge hintself to decide, and the Courl of Appeol will nol inlerfere with his discretiotr itt thot instance."

t-,

- 5 This passage has been followed in numerous authorities in this Country. The position of the law remains that an appellate court will not interfere with the exercise ofdiscretion where costs are concerned unless the parly rnoving the court can show that wrong principles were followed or that the exercise of discretion was unjudicially. Where reasons are given which do not - l0 constitute good cause within the meaning of the section then the appellate (./,) court will interfere and if no reasons are given, the appellate,will interfere if the order made was wrong.

There are rnany authorities that show that a successful party is entitled to costs unless there are some facts in its conduct before and after the

l5 institution ofthe action to show that it has involved the opposite party in unnecessary expenses or that the litigation could have been avoided.

In the matter now before us, the learned appellate Judge did not give reasons for the order she rnade. It was not pointed out to us whether this order was l0 wrong in law or that the exercise of discretion was unjudicially or that it was

based on wrong principles. I think the peculiar circumstances of the case must have influenced the learned appellate Judge to exercise her discretion in the manner that she did. I have not been persuaded that she was wrong. I would not therefore, interfere with the order she rnade. This ground of appeal s would also fail.

The fourth ground of appeal cornplained that the orders made by the appellate Judge occasioned a miscarriage ofjustice and ought to be set aside Learned counsel for the appellant did not cite any authorities in support of

l0 this ground. However the expression "miscarriage ofjustice" was judicially considered in two decisions namely Mata o OkumuVs Fransiko Amudhe

### &others ll979l H. C. B 229 and Firida Birabwa Vs Tiga la na

H. C. C. A. No.2/92 (unreported). In the case of Okumu the court held that a decision would be said to have occasioned a rniscarriage ofjustice where

l5 there is a prima facie case that an error has been made. In Birabwa's case it was held that a miscarriage ofjustice is said to have occurred if there has been rnisdirection by the trial court on matters relating to evidence or where there has been unfairness in the conduct of the trial. The principles laid down in these decisions were quoted and followed with approval by this

Court in its recent decision of Bugisu Co-operative Union Ltd Vs Lawrence Kitts C. A. No.57l001(unreported).

In the instant appeal, it was not pointed out to us what orders were made that j caused a miscarriage ofjustice. This ground was not well founded and it would fail.

As for the cross-appeal, I think the grounds raised were covered when dealing with the substantive appeal. The learned appellate Judge erred when

l0 appeal was preferred against the decision of the first Chief Magistrate. She also erred when she held that the fresh issued for service on the appellants was a nullity. she held that the preliminary objections were kept in abeyance when no

In result, the appeal would be dismissed. The cross-appeal would be

l5 allowed. In the circurnstances of this appeal, I would order each party to bear its own costs.

Dated at Kampala this......day of.......2003.

C. K. Byamugisha Justice of Aorreal

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA. KIKONYOGO, DCJ HON. ]USTICE S. G. ENGWAU, ]A HON. ]USTICE C. K. BYAMUGISHA, JA

#### CIVTL APPEAL NO. 5 OF 2OO2

| 1 | YOSAMU BYENKYA} | | | |-----------------------|-----------------|------------|--| | 2 | | APPELLANTS | | | MUGENYT RWESE ) GilU; | | | | | | ASUMANI MUSOKE | RESPONDENT | | | | | | |

(Appeal from the judgment and Decree of the High Court of Uganda at Kampala before Hon. Lady Justice Mary L D. E. Maitum dated 11th day of December 2001 in Civil Appeal No. 50 of 2001)

# JUDGMENT OF L. E. M. MUKASA-KIKONYOGO - DC]

l0 I had the beneflt of reading in draft the judgment prepared by C. K. Byamugisha lA and the orders proposed by her. I agree that the appeal must fail and the counter appeal succeeds.

As Engwau JA holds a similar view it is the unanimous decision of this court that the appeal is dismissed and cross appeal allowed.

Further it is hereby ordered that each pafi bears its own costs.

Dated at Kampala tnlsi.4.6av of october 2003

L. E. M. M ,(ronrouo DEPUTY CHIEF USTICE

## THE REPT]BLIC OF T]GANDA IN THE COURT OF APPEAL OF T]GANDA AT I({MPALA

CORAM: HON. ruSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

### CIVIL APPEAL NO.5 OF 2OO2

## Ilt.'t \\ t.t..\

## I. YOSAMT]BYENKY;\ 2. MTIGENYI RWESE APPI,],I,I,ANTS

#### AND

AST]NIAN IIIT]SOKE RESPONDENT

(Appeal arising fiom the judgement and Orders of the High Courr (Maitum, J) dated I I'r'December, 200l in Civil Appeal No. 50 of 2001)

#### JTIDGMENT OF S. G. ENGWAU,. IA.

I hadthe benefit of reading in drafl the judgernent of Byarnugisha, J. A and I agree with her that this appeal lacks rnerit and should be disrnissed for the reasons she has given and allow the cross - appeal.

ln the result, I would rnake no order as to costs

Dated at Kampala this -------------- day of 2003

IION . IUSTI S. G. ENGWAU . ITISTICE OF APPEAI,.