Electricity Regulatory Authority v Makuru & Another (Miscellaneous Application 9 of 2023) [2023] UGHC 438 (1 December 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI

# **MISCELLANEOUS APPLICATION NO.009/2023**

# (ARISING FROM CIVIL SUIT NO.30/2021)

ELECTRICITY REGULATORY AUTHORITY (ERA)::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. CHARLES MAKURU

# 2. PENNINAH MAKURU:::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE TOM CHEMUTAI

#### **RULING**

This is an application brought by motion by the Applicant, Electricity Regulatory Authority, under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act, Order 9 Rule 27, Order 52 Rule 1 and 3 of the Civil Procedure Rules against the Respondent, Charles Makuru and Penninah Makuru for orders that:

- The exparte judgment passed by this Honorable Court vide Civil Suit $i$ No. 30 of 2021 be set aside. - The execution of the decree issued vide Civil St.it No. 30 of 2021 be ii. stayed.

#### Costs of this application be provided for. iii.

The grounds of this application are that:

1. That the Applicant is a body corporate created by an Act of parliament with the capacity to sue or be sued.

- 2. That the applicant's Advocate was never served with summons by the Respondents vide Civil Suit No. 30 of 2021. - 3. That the Applicant only got to know about Civil Suit No. 30 of 2021 when it was notified of the existence of an exparte judgement. - 4. That the Respondents deliberately pursued the case without notice to the Applicant, well aware that the Applicant was a wrong party in *Civil* Suit No. 30 of 2021, so as to prejudice the Applicant. - 5. That the Respondents have no Cause of Action against the Applicant and the Applicant has a good defence thereof. - 6. That Rural Electrification Agency is a semi-autonomous body established to promote rural electrification programs and it operates directly under the Ministry of Energy and Mineral Development. - 7. That the Applicant is an independent regulator with a role of providing regulatory oversight and is not involved in or liable for any activities in the Electricity Supply Industry of Uganda, if undertaken by parties other than the Applicant. - 8. That the Applicant is not in any way liable for the alleged actions of Rural Electrification Agency (REA) and the case cannot be sustained against it. - 9. That the Respondents sued the wrong party vide Civil Suit No. 30 of 2021 and deliberately pursued the case ex-parte in bad faith. - 10. That the Applicant was denied a fair opportunity to present their case and the ex-parte judgment is unfair as denies the Applicant an opportunity to defend itself. - 11. That this application has been made without undue delay.

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12. That it is in the interest of justice that the exparte judgment and decree in Civil Suit No. 30 of 2021 are set aside and the Applicant is given an opportunity to be heard.

This application is supported by the affidavit of Ms. Charlotte Kyohairwe, the Principal Legal Officer of the Applicant, dated 20th January, 2023.

The Respondents filed their affidavit in reply, which was sworn by $1^{\ensuremath{\mathrm{st}}}$ Respondent, dated 14th Febuary, 2023. They opposed this application and contended that the Applicant was served with the summons and the plaint on 10th December, 2021 and prayed that the same is dismissed with costs.

#### Background

The Respondents instituted this suit against the Applicant seeking for adequate compensation for land which was unlawfully alienated, mesne profits, special damages of Shillings 7,670,000/ $=$ , General damages, Interest and costs of the suit. That in the year 2012 the Rural Electrification Agency constructed the Muhanga-Rwamucucu-Nyakishenyi-Rugyeyo and Kisizi 33 KV power line. In the process the Applicant's workers descended on the Respondents' land comprised in LRV 1270 Folio 25 Plot 1 Block 132 at Kimbugu village, Ruyonza Parish, Nyarushanje Sub-county in Rukungiri District and destroyed their crops and trees in the process of constructing the said the power line without permission or authorization from the Respondents.

It was alleged by the Respondents that they served the summons and the Plaint to the Applicant and the latter declined to file its Written Statement of Defense within the stipulated time.

The Respondent applied for an Interlocutory judgment and it was entered on 7th February, 2022 and the suit was set down for formal proof and thereafter the hearing of the respondents" witnesses, the Court granted the following declarations and orders that: -

- The Applicant through her agents are trespassers on the Respondents i. land comprised in LRV 1270 Folio 25 Plot 1 Nyarushanje Block 132 at Kambugu Village. - Respondents were awarded special damages of Shillings ii. The $7,670,000/$ = being the value of the destroyed trees and crops by the Applicant's agents. - The Respondents were awarded Uganda Shillings $200,000,000/$ = for iii. the injurious affection to the remaining land. - The Respondents were awarded Uganda 100,000,000/=for the iv. mental anguish and suffering occasioned to them by the acts of the Applicants agents. - The awards in (II), (III), and (IV) above were attract interest at 15% v. from the date of judgment till payment in full. - Costs of the suit were awarded to the Respondent. vi.

The Respondents proceeded with the execution process and later the Applicant filed this application seeking to set aside the exparte judgment passed by this Court and stay the execution of the decree issued by this Court.

#### Representation

During the hearing of this application, the Applicant was represented by counsel Kyohairwe Charlotte from the Applicant's Directorate of Legal

Services and the Respondent was represented by counsel Kwizara Amos from M/S Kwizera & Co. Advocates.

Both parties filed their written submissions and authorities thereto.

### Issues for determination

Counsel for the Applicant in her submissions proposed four issues for determination by the Court and Counsel for the Respondent proposed three grounds for determination. Since there is no consensus on the issues, the Court proposed the following issues.

- i. Whether the application has merit - ii. What are remedies available?

### Applicant's submissions

Counsel for the Applicant submitted that the Constitution of the Republic of Uganda in Article 28 provides for the right of every person to be accorded a fair trial. That the Applicant was not given an opportunity to file its defence which was prejudicial and it was not aware of the proceedings leadings that led to the judgment. Counsel alluded that there was no notice of intention to sue was served on the Applicant. Counsel cited the case of Steel Ware Ltd Vs C. W Martyr & Co Ltd (1956) 23 EACA.

Counsel submitted that service was effected upon a receptionist and it did not amount to effective service as it did not yield the intended result because the Applicant's Directorate of Legal Services got to know about Civil Suit No. 30 of 2021 when it was notified about the existence of an exparte judgement. Counsel added that the summons and the Plaint were not effectively served

by the Respondent as a receptionist was not duly authorized to receive court documents. Counsel cited Order 9 rule 27 of the Civil Procedure Rules and the case of, Wamini v Kirima [1969] E. A 172, Geoffrey Gatete & Anor v William Kyobe SCCA No. 07 of 2005, Gatete & Anor Vs William Kyobe SCCA No. 07 of 2005 to that effect.

Counsel submitted that the Applicant had a plausible defence to Civil Suit No.30 of 2021. That the Applicant is a regulatory and licensing body as stipulated under section 10 of the Electricity Act Cap 145 and that Applicant is different and has a separate role and mandate from the Rural Electrification Agency.

Counsel contended that the Rural Electrification Agency is empowered to implement the Government's rural electrification strategy and projects and that the projects are implemented under the Ministry of Energy and Mineral Development and liability thereof lays with the Attorney General.

## Respondent's submissions

Counsel submitted that the Applicant was served with the summons and the attached plaint on the 10th day of December, 2021 and the official of the Applicant acknowledged service of the Court process by stamping the applicant's official stamp on both the summons as well as on the attached plaint. That the evidence of services was corroborated by the affidavit of service sworn by Ahimbisibwe Edson.

Counsel added that the Applicant does not deny that the stamp used by its official to acknowledge receipt of the Court process does belong to it. That there was no way, the process servicer could have known that the Applicant's

official who was in possession of the Applicant's official stamp was not authorized by the Applicant to acknowledge receipt of Court process on behalf of the Applicant.

Counsel cited Order 5 Rule 7 and 10 of the Civil Procedure Rules and case of Jetha Brothers Ltd Vs Mbarara Municipal Council & Five Others HCT-05-Cv-Ma-003/2004.

Counsel submitted that the Applicant was properly sued by the Respondents following the wrongful acts of Rural Electrification Agency. He cited the case of Kesi Kubiriba Vs Attorney General HCT-05-Cv-Cs-0044/2012.

Counsel submitted that the Applicant was not a scheduled Corporation that required to be served with Statutory Notice before instituting a suit against it and added the case of Kabandize and 20 Others -Vs- Kampala Capital City Authority in Civil Appeal No. 28 Of 2011, the Court of appeal held all persons equal before the law.

## The merit of the application.

The major issue for determination is whether the Applicant was duly served with summons and plaint. Counsel for Applicant contended that there was no effective service because service was effected upon a receptionist who had no authorization to receive service. On the other hand, Counsel for the Respondents averred that the Applicant was served with the summons and the attached plaint on the 10th day of December, 2021 and the official of the Applicant acknowledged service of the Court process by stamping the Applicant's official stamp on both the summons as well as on the attached plaint.

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Upon perusal of the record, I find that the Applicant was served with summons and Plaint on the 10th December 2021 as evidenced by affidavit of service sworn by Ahimbisibwe Edson and the Applicant did not respond to service within the time stipulated by law. It is on basis of the evidence of service that this Court granted an interlocutory judgment on 7th February, 2022.

I concur with counsel for the Respondents that the applicant did not deny that the stamp used by its official to acknowledge receipt of the Court process does belong to it. I find that the submission of counsel for Applicant that there was no effective service because the receptionist received court documents as an afterthought aimed at justifying the Applicant's failure to file its written statement of defence with required time.

For the forgoing reasons, I dismiss the Application with costs.

It is so ordered.

Ruling read and delivered Rukungiri at DECEMBER...2023. this dav $of$ **TOM CHEMUTAI** JUDGE.