Don Dino Institute for Orphan Care Limited v Adeti & 4 Others (Miscellaneous Application 13 of 2024) [2024] UGHC 804 (29 August 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA

# MISCELLANEOUS APPLICATION NO. 013 OF 2024 (ARISING OUT OF MISC. APPN. NO. 064 OF 2019) (ARISING OUT OF CIVIL SUIT NO. 021 OF 2019)

# DON DINO INSTITUTE FOR ORPHAN CARE LIMITED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. REV. FR. CASTO ADETI

- 15 2. NDEMA ANGELO - 3. INZIKU ISAAC - 4. ATIBUNI KENNEDY - 5. THE REGISTERED TRUSTEES OF ARUA DIOCESE:::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE COLLINS ACELLAM 20

#### **RULING**

### **Introduction**

This is an Application brought by Notice of Motion under Articles 128(2) & (3), 50 (2), 28(12),

- 23 (1) (a) of the Constitution of the Republic of Uganda, Section 33 of the Judicature Act; 25 Sections 64(c) & (e) & 98 of the Civil Procedure Act; Order 52 rule 1 & 3of the CPR for orders that; - The 1st, 2nd, 3rd, and 4th, Respondents be arrested and committed to Civil Prison $\mathfrak{a}.$ for contempt of Court. - b. The structure constructed on the suit property by or on the directives of the Respondents be demolished at the Respondent's costs. - c. The Respondents be ordered jointly and severally to account for and pay back the monies used to construct the new building on the land of St. Kizito Ediofe Orphans Primary School. - d. The 5th Respondent be ordered to pay 300,000,000/= in exemplary damages to the Applicant. - *e. The 5th Respondent be fined UGX 100,000,000/= for contempt of court.* - $f.$ Cost of the Applicant be provided for.

#### 40 Background

The Applicant instituted a Civil Suit vide CS No. 0021 of 2019 against the Registered Trustees of Arua Diocese herein referred to as the 5th Respondent for Trespass, a permanent injunction, an order for compensation of the developments on the suit land, general damages, costs of the suits and interest. The Applicant then filed Misc. Application 64 of 2019 seeking to maintain

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the status quo on the suit land until the main suit is determined. And on the 21st of October 45 2019 this Court presided over by the Hon. Justice Anthony Oyuko Ojok issued a temporary injunction and ordered that the status quo be maintained on the suit property by the parties.

- The Applicant further filed Misc. Application No. 004 of 2020 averring that the respondents in $\mathsf{S}$ this matter and others committed Contempt of Court by altering the Status quo on the suit land. On the 31st of March 2023 Justice Isah Serunkuma delivered a ruling wherein he ordered and declared that; - The Respondents shall ensure that they don't tamper with the management of the $a.$ disputed properties until the main suit is determined. - b. The 1st, 2nd, 3rd, 4th, 5th, 6th, Respondents in that matter amounted to contempt of court having refused to desist from interfering with the management of the properties already under the management of the Applicant. - c. The 7th and 8th Respondents (as per that application) stop releasing any monies for development on the suit land from the school bank accounts to the Respondents until final disposal of the main suit. - d. Each party shall bear its own costs.

#### This Application. 20

This is clearly the second application filed by the Applicant alleging Contempt of Court against the Respondents for orders as stipulated in the introduction of this ruling.

- The Application was supported by the affidavit of Geria Victory the Director of the Applicant 25 herein but briefly they are that; - This Honourable Court issued a temporary injunction maintaining the status quo on $\overline{a}$ . the suit premises sitting on approximately 20 acres and the projects sitting thereon. - b. The respondents were aware of the order of the court. - The Respondents had the ability to obey the said Court Order. $c$ . - d. The Respondents committed Contempt of Court.

The Respondents on the other hand opposed this Application with four (4) affidavits in reply sworn by the 1st, 2nd, 3rd and 4th Respondents wherein they stated that, the Application is 35 superfluous, a true speculation, fabrication, unmeritorious, and stands to abuse Court process, warranting dismissal with costs by this Honourable Court and that their Advocates would raise a preliminary objection that the Application is incompetent for having expired before service on them.

The Applicant did not file a rejoinder to that effect.

### Representation

The Applicant was represented by *Counsel Samuel Ondoma M/s Alaka & Co. Advocates* while the Respondents were jointly represented by Counsel Abiyo Ivan of M/s Ederu & Gama 45

Advocates and Solicitors.

5 This matter proceeded by way of written submissions and the same have been considered in the determination of this application.

I will first of all determine the Preliminary Objection before I delve into the Application.

In the Respondents Affidavits in Reply, Counsel raised a preliminary objection that the 10 Application is incompetent for having expired before the Applicant served it on them.

In their written submissions, Counsel for the Respondents stated that, the Application expired before it was served on the Respondents and it therefore has no legal effect. Counsel relied on

Order 5 Rule 1 (2) of the Civil Procedure Rules and the case of *Nyanzi Muhamad Versus Nasolo* 15 Harriet & 2 others HCCMA No. 14 of 2021, court held that "timelines that apply to service of summons in an ordinary plaint also apply to service of Applications". Wherein court held that timelines that apply to service of summons in an ordinary plaint also apply to service of Applications and that the provision automatically invalidates summons which may have been issued and are not served within the 21 days from the date of issuance. 20

Counsel further submitted that it is settled law that the provisions of Order 5 of the CPR are mandatory and should be complied with. Counsel contended that in the instant case the Applicant took out summons on the 28th of February 2024 but served them on the Respondents on the 3rd of April 2024 over one month from the date the summons was issued. Counsel further averred that this Application is fatally incompetent and that this court be pleased to strike it out with costs.

The Applicant did not file a rejoinder and neither did their Counsel respond to the preliminary 30 objection in their written submissions.

### **Consideration of the Preliminary Objection**

I have perused the Notice of Motion in question; it was signed and sealed by the Deputy Registrar on the 28th of February 2024; there is no affidavit of service on record. Counsel for the 35 Respondents submitted that the Applicant took out summons on the 28th of February 2024 but served the Respondents on the 3rd day of April 2024 over one month from the date the summons was issued, and that the Applicant did not seek the mandatory leave to extend time of service, and no explanation has been rendered to court as to why the Applicant did not serve the 40 Application within 21 days from the date of issue.

Order 5 Rule 1(2) of the Civil Procedure Rules provides that service of summons should be effected within 21 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.

In the present case, the 21 days expired on 20th of March 2024 before service could be effected.

$\mathbf{z}$

$\mathsf{S}$ There is no filed affidavit of service to prove the exact date on which the summons was served on the Respondent and the Applicant has not addressed this issue in their written submissions as well. In the absence of such affidavit of service and rebuttal from the Applicant on this point of law, I shall rely on the date of 3rd April 2024 as admitted by the Respondent. It is trite law that where facts are sworn in an affidavit and these are not denied or rebutted by the opposite 10 party, the presumption is that such facts are accepted as adduced. (See. Massa Vs Achen (1978) HCB 297).

Since Counsel for the Applicant did not furnish this court with any rejoinder, rebuttal, response or submission in respect to this point of law, I have considered the arguments of Counsel for the Respondent and it is my finding that the timelines within which to serve the Respondents commenced on 28th February 2024 which is the date that the Court gave the directives and were served on the Respondents on 3rd April 2024 which is 35 days and that is above 21 days as required by law.

20 I therefore find that the service of summons was not effected within time.

The basis of the legal requirement under Order 5 of the Civil Procedure Rules is that one has time to let the other party know of the existence of a case against them; the framers of the law deemed 21 days as sufficient time. Courts have held that service after the stipulated time limits would be ineffective and or therefore of no legal consequence; and that a court has no jurisdiction to deal with an application until it has been served and affidavit of service filed on record. (See. Nankabirwa V Namugenyi UGHCLD CS No. 130 of 2017; Nyanzi V Nassolo & 2 Others Miscellaneous Application No. 4 of 2021) 2023 UGHCCD 128)

- 30 Order 5 Rule 1 (3) of the Civil Procedure Rules stipulates 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 subrule (2) of this rule; (c) the application for extension of time has been dismissed, the suit shall be dismissed without notice. - 35 In the case of *Kyagaba Vs Nabuuso (Miscellaneous Application 391 of 2022) 2023* Lady Justice **Ketrah Kitariisibwa Katunguka** stated that in her view, the argument should not be that the other party has responded it should be that the Applicant could not serve in time for justifiable reasons; but where no effort is made to show cause why one served out of time and why time within which to serve should be extended, the rest is in her view, moot for there is nothing to - serve if a notice or summons has expired. 40

$25$

I hold the same view and I therefore declare that the preliminary objection has merit and that it is upheld.

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Being as it is that the application has been dismissed for want of service, I see no need to delve 45 into the contents of the Application. However, I take this opportunity to remind both Parties of the already standing Court Orders in respect to this matter vide Misc. Application 64 of 2019

and Misc. Application No. 004 of 2020 and maintain the Status quo on the land until the final $\mathsf{S}$ disposal of the main suit.

For avoidance of doubt this Application is dismissed and both parties shall bear their costs.

I so order. $10$

August 2024 Dated, Signed and Delivered this....................................

Collins Acellam $20$ **JUDGE**