Kagundu v Kanamugira (Miscellaneous Application 36 of 2020) [2022] UGHC 131 (17 October 2022)

Full Case Text

## **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0036-2020

(Arising from NTUNGAMO CIVIL MISC. APPN. NO. 003 OF 2019) (All arising from NTUNGAMO CIVIL SUIT NO. 014 OF 2016)

# KAGUNDU JOHN FRANK :::::::::::::::::::::::::::::::::::: **VERSUS**

# KANAMUGIRA BENON :::::::::::::::::::::::::::::::::::

## **BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### **RULING**

#### Introduction.

This application was brought by notice of motion under Article $\Box$ 28(2) and Article 126 (2)(e) of the 1995 Constitution of Uganda, Ss. 96 and 98 of the Civil Procedure Act and Order 51 rules 1 and 3 of the Civil Procedure Rules. The Application was seeking for orders that;

- 1. Leave be granted to the Applicant to file an appeal out of time vide MA no. 003 of 2019 arising from Civil Suit no. 014 of 2016 delivered by HW Akera Deric Magistrate Grade 1, Ntungamo. - 2. The costs of the application be in the cause.

The application was premised upon grounds set out briefly in the motion as:

- 1. That on 26th/06/2018, Civil Suit No. 14 of 2016 was dismissed by HW Mwesiga Dan for want of prosecution. - 2. That he instructed his lawyers Falcon Associated Advocates who filed an application No. 003 of 2019 for reinstatement of Civil Suit no. 14 of 2016 which was dismissed. - That the Applicant has been in poor health, has been paralysed for quite a long time, he cannot walk as a result of this illness within which to appeal against the ruling lapsed.

- 4. That the Applicant was let down by his former lawyers Falcon Associated Advocates in not properly advising him to appeal against the ruling of the trial magistrate in time and as such time within which to appeal has elapsed. - 5. That mistake of counsel or oversight of legal advisor to properly advise the applicant of his legal rights to appeal against the ruling of the Trial Magistrate should not deprive the Applicant an opportunity to prosecute her appeal. - 6. That the Applicant cannot commence an appeal without seeking an order for enlargement/extension of time which has now expired unless Court grants leave to the Applicant to appeal out of time. - 7. That the Applicant has meritorious appeal against the ruling delivered in MA no. 003 of 2019 arising from Land Case no. 014 of 2016 and this court had ordered that the main suit no. 014 of 2016 be tried afresh in the lower court but was dismissed in the lower court for want of prosecution without hearing the suit inter parties. - 8. That it is in the interest of justice that this application be granted to the Applicant.

The motion was supported by the affidavit sworn by Kagundu John Frank, the Applicant. It was opposed by an affidavit sworn by Kanamugira Benon, the Respondent. I have taken cognizance of the content of both affidavits.

### Representation.

The Applicant was represented by M/s Mubiru and Aruho **[2]** Associated Advocates while the Respondent was represented by M/s Tumwebaze Emmanuel Advocates and Solicitors.

Both counsel were directed to file written submissions. The complied and this court has taken note of the submissions in making this ruling.

### Preliminary point of law.

The Respondent's advocate raised one preliminary point of law $[3]$ regarding service of the instant application. According to counsel, the

instant application was served out of the set timelines in Order 5 rule 1(2) of the Civil Procedure Rules. That the application was filed on 30th January 2020 and endorsed by the Registrar of this court on 3rd February 2020, it was served on the Respondent on 20th April 2021. That this was served out of the 21 days set out in Order 5 Rule 1(2) (supra). That according to Order 49 of the Civil Procedure Rules, the rules on service under Order 5 rule 1(2) of the Civil Procedure Rules apply equally to applications like the instant one. That this court ought to have dismissed it without notice.

In response, counsel for the Applicant submitted that the preliminary objection was misconceived, malafide, baseless and a waste of court's valuable time intended to bar the Applicant from pursuing his intended appeal. That having filed the instant application on 30th January 2020 and then fixing it for hearing on 3rd February 2020, the same was immediately served upon the Respondent.

$[4]$ **Order 49 rule 2** of the Civil Procedure Rules provides that:

### "2. Orders and notices, how served.

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

From the foregoing provision, such orders, documents and notices include a notice of motion like the instant application.

According to Order 5 rule 1 (2) of the Civil Procedure Rules, summons must be served within twenty-one days of issuance 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.

It has been the practice of courts to use and treat the notice of motion as the summons and as such the rules relating to filing and service of suits under Order 5 rule 1 apply to notices of motion too. (See Kaur and others vs City Auction Mart Ltd [1967] 1 EA 108).

According to the Supreme Court in **Kanyabwera vs Tumwebwa [2005]** 2 EA 86, all the provisions under Order 5 rule 1 of the Civil Procedure Rules are of strict application since a penalty accrues upon their default.

In the instant application, counsel for the Applicant submitted as I have noted above that upon endorsement of the motion, it was immediately served upon the Respondent.

Section 103 the Evidence Act is to the effect that the burden of proof as to any particular fact lies on the that person who wishes the court to believe its existence, unless it is provided by law that the proof of that fact lies on any particular person. Section 101 of the same law goes ahead and states that when a person is bound to prove the existence of any fact, the burden of proof lies on that person.

In Edison Kanyabwera vs Pastori Tumwebaze (Civil Appeal 6 of 2004) the Supreme Court provides guidance on what is the best evidence of service. The court held that:

"Order 5, rule 17 of the C. P. R provides that where summons have been served on the defendant or his agent or other person on his behalf, the serving officer, shall in all cases, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served and name and address of the person, if any, identifying the person served and witnessing the delivery of the tender of the summons. The provisions of this rule is mandatory, it was not complied with in the instant case. What the rule stipulates about service of summons, in my opinion, applies. equally to service of hearing notices... The absence of such affidavit leads inevitably to the conclusion that the defendant was

$\blacktriangleright\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\!\$

# not properly served with the hearing notice before the suit was *heard in his absence.* " (Emphasis mine)

To prove the facts he was submitting upon, that is; that the instant motion was immediately served upon the Respondent, counsel needed to produce an affidavit of service as proof of this. Counsel did not do so. I labored in the interest of justice to examine the record of the instant application in search of an affidavit of service, I have not found one.

In effect, this court is led to the inevitable conclusion that the Respondent was not served the instant application within the timelines specified under order 5rule 1(2) (supra).

The effect of having a document on the record of court that was not properly served means that such a document is not properly before court and should be struck out.

The preliminary objection is therefore sustained and the instant application is struck out with costs to the Respondent.

I so order.

$\mathcal{N}$ Dated, delivered and signed at Mbarara this. H.....day of 2022. Joyce Kavuma Judge