Kaggwa v Tabe (Civil Miscellaneous Application 17 of 2023) [2024] UGHC 986 (3 October 2024)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT ARUA

## CIVIL MISCELLANEOUS APPLICATION NO. 0017 OF 2023

# (ARISING OUT CIVIL APPEAL NO. 004 OF 2020)

### (ARISING FROM CIVIL SUIT NO. 031 OF 2017)

KAGGWA ANDREW:::::::::::::::::::::::::::::::::::: 10

# **VERSUS**

<table>

TABE GEOFFREY OKUMA: RESPONDENT

#### **BEFORE: HON JUSTICE COLLINS ACELLAM**

#### 15

$\mathsf{S}$

# **RULING**

## Introduction

This is an application brought under Section 82 (a), Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 46 rule $1(1)(a)$ &(b) of the Civil Procedure Rules for orders that;

- 1. The order that dismissed civil appeal No. 004 of 2020 in this court be reviewed and set aside. - 2. Civil Appeal No. 004 of 2020 be re instanted and determined on its merits - 3. The costs of this application be provided for.

## **Brief Background**

- 25 The Respondent sued the Applicant and another (deceased) in the chief magistrate court of Moyo vide Civil Suit No. 031 of 2017 for a declaration that the Respondent is the true owner of the suit land, orders for vacant possession, a permanent injunction to restrain the defendants and their agents from trespassing on the suit land, general damages and costs of the suit. And in the judgement of Her Worship Nakato Josephine Ddembe on the 20th December 2019, the - lower court ruled in favour of the Respondent and decreed and ordered that the Respondent is 30 the lawful owner of the suit land, general damages to the Respondent to a tune of 7,000,000/= and costs of the suit against the 1st Defendant in the suit. It is against that background that the Applicant brought an Appeal against that judgement. However, the Appeal was dismissed by this court under Section 17(2) of the Judicature Act thus this Application for review of that order and reinstatement of the Appeal. 35 - The Application

The Grounds of this Application are set out in the Affidavit sworn by the Applicant but briefly they are;


- There is an error apparent on the face of the record of the Court when it dismissed civil a. appeal No. 004 of 2020 on 22/09/2022 without notice to the Applicant basing on a notice of appeal lodged on 14/01/2020 when there was a memorandum of appeal filed in this court on $27/03/2020$ . - b. There is also an error apparent on the face of the record of the court when it dismissed civil appeal No. 004 of 2020 on the 22/09/2022 yest Misc. Application No. 069 of 2020 was filed in this court on 23/11/2020 by Vundru Sempa the brother of the deceased 1st Appellant in civil Appeal No. 004 of 2020 who died on 03/03/2020. - There is an error apparent on the face of the record of the court to have dismissed civil $\mathbf{c}.$ appeal No. 004 of 2020 when Misc. Application No. 069 of 2020 filed on 23/11/2020 seeking leave to substitute the 1st Appellant is still pending for a ruling and when there are several letters written to the court requesting for a ruling to be delivered. - d. It is equitable, fair and just that this application is allowed.

# <u>Representation and hearing</u>

The Applicant was represented by Counsel Manzi Paul of M/s Manzi & Co. Advocates. The Respondent was not present and neither was he represented.

The Applicant filed written submissions.

# Court's consideration

I have perused the file and there seems to be two affidavits of service. One sworn by Ambayo limmy and another sworn by Mawa Yasin Ibrahim.

- The one sworn by Ambayo Jimmy is title Civil Appeal No. 004/2020 and seems to suggest that 25 the service done was for a Notice of Motion and submissions dated 6/06/2023 in respect of Civil Appeal No. 004/2020. It must be noted that the service in question is in respect to the Miscellaneous Application No.0017 of 2023 and not the Appeal. Therefore, that affidavit of service can not be construed to man proof of service in respect to the Application at hand. - I have further noted that the Applicant's Counsel did not effect service on the Respondent. In 30 the affidavit of service sworn by Mawa Yasin Ibrahim, paragraph 6 states that he did not serve the Respondent in this Application with the copies of Notice of Motion together with the Applicant's submissions despite him going to the Respondent's place of residency severally. This therefore shows that the Respondent was not served thus not complying with the provisions of Order 5 of the Civil Procedure Rules in respect to service of summons. 35

In any case, the Applicant could have explored other options of serving the Respondent for instance; the Applicant could have made an application to court to allow him do substituted service. Order 49 Rule 2 of the Civil Procedure Rules provides that all notices, orders and documents required by the Act to be given or served on any person shall be served in the manner provided for the service of summons.

In the case of Craig V Kanssen (1948) 1 KB 256, Goddard L. J observed that it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation.

$\mathsf{Z}$

$\mathsf{S}$

Therefore, in light of the above findings and authorities, I find that this application is still $\mathsf{S}$ premature for a ruling. It is in the interest of justice that this court accords the Respondent a fair hearing in this matter. I therefore direct the matter back to the registrar to instruct Counsel for the Applicant to ensure effective service on the Respondent.

Dated on this .................................... $10$