Changa & 8 Others v Toskin (Miscellaneous Application 81 of 2022) [2024] UGHC 763 (21 August 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO. 081 OF 2022

(ARISING FROM CHIEF MAGISTRATE'S COURT OF KAPCHORWA AT KAPCHORWA CIVIL SUIT NO. 005 OF 2021)

- 1. CHANGA SOLOMON - 2. CHESAKIT JOSEPH - 3. CHEPTOKIS PAUL - 4. MANDE FRED - 5. SANDE BOSCO::::::::::::::::::::::::::::::::::: - 6. CHEKWOTI WILFRED - 7. KAMWOTYEL NELSON - 8. KISSA KWILAT - CHEROP FELIX

### **VERSUS**

TOSKIN GEORGE :::::::::::::::::::::::::::::::::::: BEFORE: HON. JUSTICE LUBEGA FAROUQ

### **RULING**

- 1. This Application was brought under section 64 (e) and 98 of the Civil Procedure Act Cap 282, section 33 of the Judicature Act Cap 16, Order 43 rule 16 and Order 52 rule 1 & 3A and Order 52 Rule 1 & 3 of the Civil Procedure Rules SI 71:1 for- the dismissal order in Civil Appeal No. 081 of 2022 to be set aside and the same (Civil Appeal No. 081 of 2022) be re-admitted and be heard on merits and costs of this Application be provided for. - 2. This Application is supported by the affidavit of the $1^{st}$ Applicant (CHANGA SOLOMON) and the grounds are briefly as follows- - 3. That the Respondent sued the 1st Applicant together with other Applicants jointly and severally vide Civil Suit No. 005 of 2021 before

the Chief Magistrates Court of Kapchorwa at Kapchorwa seeking for reliefs to wit, a declaration of ownership of the suit land located in ukunya village, Kwakwot Parish, Ngenge Sub County in Kween District, trespass to land, permanent injunction, general damages and costs of the suit.

- 4. Following the institution of the above suit, on $23^{rd}$ May, 2022 the lower court entered judgment in favour of the Respondent against the Applicants. Being aggrieved with the decision of the trial magistrate, the Applicants lodged Civil Appeal No. 081 of 2022 before this court with the aid of their advocate but the same was dismissed on 13th of March, 2023 by this court for want of service of a memorandum of appeal which the Applicants came to know the same in January, 2024. - 5. The Applicants averred that the Respondent had been served with the copy of the memorandum of appeal on 19th of June, 2022 and acknowledged receipt of the same but Sanywa Wabwire & Co, Advocates whom they instructed to pursue the Appeal failed to take necessary steps to file the affidavit of service despite actual service of the memorandum of appeal on the Respondent. Hence, mistake of the advocate cannot be visited on the Applicants. - 6. The Applicants further averred that Civil Appeal No. 081 of 2022 raises arguable and triable grounds with a probability of success worth determination. - 7. The Applicants added that this court has inherent constitutional and statutory powers to set aside a dismissal order vide Civil suit No. 081 of 2022 and re-admit the same to be heard on its merit since Uganda Justice demands that substantial Justice and fair hearing as one of the cornerstone pillars to adjudicate disputes effectively. - 8. Affidavit in reply - 9. This application was replied to by the Respondent and the grounds are briefly as follows-

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- The Respondent averred that at the commencement of the hearing 10. or at the nearest opportunity possible he will raise a preliminary objection to the effect that the Applicants application is barred in law, frivolous, vexatious and an abuse of court process since the orders by the learned trial judge are not available for setting aside and will pray the same to be dismissed summarily with costs. - 11. Without prejudice to the above, the Respondent averred that he came to know of the alleged appeal through his lawyer that the same was coming up for hearing on the 13th of March, 2023. He added that the appeal was not only dismissed for want of service of the memorandum of appeal by this honourable court but also for want of prosecution and for want of service of the notice of day for hearing of the appeal. - The Respondent averred that it is not true that the Applicant only 12. came to know about the dismissal in January, 2024 as they claim since on 13th of March, 2023 when the appeal came up for hearing, they were represented by a one counsel Shafic Ntuyo who prayed for an adjournment to peruse the file which the judge denied. - He further stated that he was never served with the memorandum 13. of appeal nor the hearing notice of the 13th of March, 2023 not even his lawyers were served and was only shocked that the Applicants who had caused the fixing of the matter never appeared but were represented by their lawyer. - The Respondent added that this appeal does not raise any arguable 14. or triable ground worthy determination of this honorable court. - He prayed that the Application be dismissed for lack of merit. 15.

#### 16. Issues

(a) Whether the application discloses triable issues worth of determination for this court to grant all pleaded reliefs therein?

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#### 17. Legal representation

Counsel Watete represented the 1st Applicant whereas Counsel 18. Nangulu Eddy holding brief for Counsel Maganda represented the Respondent.

#### $19.$ **Submissions**

This Application proceeded by way of written submissions and all 20. the parties complied. I will briefly reproduce them below-

#### Submission by counsel for the Applicants 21.

*Whether the present Application discloses triable issues worth of determination for this court to grant all pleaded reliefs therein?*

- Counsel for the Applicant submitted that Civil Appeal No. 081 of 22. 2022 raises arguable and triable grounds with probability of success worth determination as the suit land belongs to them which issues was over looked by the lower court. - He also submitted that land being disputed subject matter vide Civil 23. Appeal No. 081 of 2022 is one of the most important source of livelihood for the parties and the same ought to be determined by this court on its merit for purposes of uploading fair trial therein hence re-admission of the dismissed appeal. He cited section 33 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282 and a case of Abel

# Belemesa V. Yesero Mugenyi (HCMA No. 126 of 2019)

Counsel further submitted that mistake of the former advocate to $24.$ pursue Civil Appeal No. 081 of 2022 cannot be visited on the innocent applicants. He cited Bonco Arabe & spanol V. Bank of Uganda, SCCA No. 8 of 1198

#### Submissions by counsel for the Respondent 25.

Counsel for the Respondent submitted that Civil Appeal was 26. dismissed on 13th of March, 2023 for failure to serve the Respondent and for failure to prosecute under Order 5 rule1, Order 17 rule 5 and Order 43 rule 11 of the Civil Procedure Rules. He argued that the Applicants brought this application for setting aside a dismissal under

Order 43 rule16 of the Civil Procedure Rules which is not applicable for setting aside an appeal which has been dismissed under the aforesaid provision.

- Counsel submitted that an appeal which can be reinstated is the 27. one dismissed under Order 43 rule 16, 14 and 15 where it is dismissed for Appellants default or a dismissal of appeal where a notice is not served in consequence of the Appellants failure to deposit costs and in all instances, the Applicant must prove that he or she was prevented by any sufficient cause. - He cited Order 5 rule 1 to submit that an appeal dismissed under 28. the provisions of Order 5 rule 1 for failure to serve the Respondent, its dismissal cannot be set aside by the current application. - Counsel contended that whereas the mode of service of the 29. memorandum of appeal is not specifically laid out under Order 43 of the Civil Procedure Rules recourse is to order 49 rule 2 which provides for all orders notices and documents required by the Act to be given to or served on any person shall be served in a manner provided for the service of summons. - 30. He argued that the implication of the above provision is that a memorandum of appeal has to be served within 21 days following the dictates of Order 5 rule 2 of the Civil Procedure Rules. He stated that the Applicants instituted an Appeal in this court through a memorandum of appeal filed on the 6th of June, 2022 and the same was endorsed by court on the 7th of June, 2022 and no service of such memorandum was ever effected upon the Respondent as elaborated in the affidavit in reply paras 7, 8, 9 and 10. - Counsel for the Respondent further argued that the Applicants 31. ought to have served the memorandum of appeal onto the Respondent by 28th of June, 2022 and in case of failure to do so, they were to make an application for extension of the time on 13th of July, 2022 and in

accordance with the law, the judge rightly dismissed their appeal for none service.

32. He cited CACA No. 90 of 2013 Alex Mulyabintu V. Case Wetearn **Reserve University & Anor** to support his submission. In that case, it was held that-

"I find nothing to fault the learned trial judge for holding that summons to file a Defence which has not been served for over 11 years is a nullity and the suit is supposed to be dismissed under the mandatory rules of procedure. Such statutory dismissal is one on merits and so a fresh suit would have been filed subject to the law of limitation...... The Appellant never filed a fresh suit and the suit dismissed for want of service of summons under Order 5 rule 1 (3) of the Civil Procedure Rules is not dismissed at the discretion of the Judicial Officer and the Judicial Officer dismisses the suit as directed by the mandatory stipulations of the rules. It follows that such a suit cannot be reinstated and the remedy of the Plaintiff who fails to serve summons on a Defendant to file a defence within prescribed period and whose suit is dismissed under the mandatory provision of Order 5 rule 1 (3) is to file a fresh suit subject to the law of limitation."

- 33. Following the above authority, counsel submitted that the trial judge dismissed Civil Appeal No. 81 of 2022 under the provision of Order 43 rule 11 which provides for service of notice on the day of hearing the Appeal and that such notice shall be served on the Respondent or on his or her Advocate in the manner provided for the service. - 34. Counsel also submitted that the consequences of none service of the notice of hearing of the appeal are equally elaborated under Order 5 of the Civil Procedure Rules as Rule 11 of Order 43 which states that rules applicable on service of summons also apply to the service of the notice hence the consequences of none service is dismissal of the Appeal which the learned trial judge did and just like the previous remedy is not applying to set aside the dismissal but filing a fresh appeal.

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#### 35. **Analysis of court**

- As it is noted from the affidavits of both parties and the 36. submissions that, Civil Appeal No. 81 of 2022 was dismissed under order 5 rule 1, Order 17 rule 5 and Order 43 rule 11 of the Civil Procedure Rules SI.71-1 - The duty of this court is therefore, to first determine whether a suit 37. dismissed under the above stated orders can be reinstated. - Order 5 rule 1 of the Civil Procedure Rules provides that-38.

"When a suit has been duly instituted a summons may be issued to the defendant-

(a) ordering him or her to file a defence within a time to be *specified in the summons; or*

(b) ordering him or her to appear and answer the claim on a day *to be specified in the summons."*

39. Order 5 rule 3 of the same rules provides that-

> "Where summons have been issued under this rule, and – (a) service has not been effected within 21 days from the date of issue; and

> (b) there is no application for an extension of time under sub*rule* $(2)$ *of this rule; or*

> (c) the application for extension of time has been dismissed, the *suit shall be dismissed without notice."*

Order 43 rule 11 provides that-40.

> "Notice of the day fixed for hearing of the appeal shall be served on the respondent on his or her advocate in the manner *provided for the service on a defendant of a summons to enter* appearance; and all the provisions applicable to that summons, and to proceedings with reference to the service of the *summons, shall apply to the service of the notice.*"

Order 49 rule 2 of the Civil Provides that-41.

> "All orders, notices and documents required by the Act to be given to or served on any person shall be in the manner *provided for the service of summons."*

- As it is clearly indicated in the provisions of the law above, the $42.$ provisions of Order 5 rule 2 and 3 also apply to order 43 rule 11. - In Bitamisi Namuddu V. Rwabuganda Godfrey, Supreme Court 43. Civil Appeal No. 16 of 2014, it was stated that-

"where the rules provide for a consequence upon failure to do a certain act, then the provision is read as mandatory and not directory".

- In the present case, it is apparent that Civil Appeal No. 81 of 2022 $44$ was dismissed under Order 5 rule 1 and order 43 rule 11. The procedure that govern the two provisions is found in Order 5 rule 3 which provides for the time lines within which to serve summons and notices. The implication of failure to comply with the same is also provided therein. - Therefore, the trial judge did not use his discretion to dismiss the 45. stated appeal but it was statutorily and mandatory to do so. - Counsel for the Respondent cited the case of **Alex Mulyabintu V.** 46. Case Wetearn Reserve University & Anor (Supra) where it was stated that failure to comply with the mandatory provisions of the law for service of summons, the only remedy available is to institute a fresh subject to the law of limitation. I am bound by that finding. - Civil Appeal No. 81 of 2022 was further dismissed under Order 17 47. rule 5 of the Civil Procedure Rules. I have read the provision of the law and found that it is coached in non-mandatory manner which means if a suit is dismissed under that provision of the law, it can be reinstated but the fact that the instate suit was also dismissed under Order 5 rule 1 and Order 43 rule 11 of the Civil Procedure Rules which are mandatory in nature, the same cannot be reinstated.

- The only remedy available to the Applicants in my view is to apply 48. for leave to file another appeal out of time. - 49. This Application is accordingly dismissed with costs to the Respondents.

50. I so order.

LUBEGA FAROUQ **JUDGE**

Ruling delivered via the emails of the parties on 21st day of August, 2024