Makeme and 3 others v Wamukota and Another (Civil Miscellaneous Application 248 of 2020) [2024] UGHC 604 (13 June 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### MISC. APPLICATION NO.0248 OF 2020

# (ARISING FROM SUIT IN ADMINISTRATION CAUSE NO.10 OF 2012)

(ARISING FROM PROBATE ADMINISTRATIVE CAUSE NO. 100 OF 2009)

- 1. MAKEME PETER................................... - BULALI REBECCA - BUKANZA SALA - 4. NAMAKOYE IREN

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#### **VERSUS**

- WAMUKOTA JOHN - WAMATABU FRED ....................................

### BEFORE: LADY JUSTICE MARGARET APINY

#### **RULING**

#### Background 20

The applicant brought this application under Article 28 (1) of the Constitution, Section 98 of the Civil Procedure Act, Cap 71, Order 9 rule 22 and 23 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules, S. I 71-1 for orders that;-

1. The dismissal order of Administration Cause No. 10 of 2012 be set aside and the matter be re-admitted/ reinstated.

2. Costs of the application be provided for.

The grounds of the application as set out in the application and the affidavit in support of the application deponed by Makeme Peter, 1st applicant and Bukanza Sala, 3rd applicant are couched in similar wordings from paragraphs 1 to 16 and for purposes of this application, reliance will be made to the grounds as laid out in the 1st applicant's affidavit in support, which are briefly that;

- 1. He together with his co-applicants through their former lawyers of M/s Samuel Wegoye Advocates, Mbale filed Administration Cause No. 10 of 2012 against the respondents for among other orders for revocation of Letters of Administration. - 2. After filing the suit their former lawyers informed them they would follow up on the matter. - 3. On 28th August 2019 when the main suit came up for hearing, he and his co-applicants were not aware of the hearing date and the purported signature thereon does not belong to him. - 4. He was only shocked to know about the dismissal of the suit after being served with a copy of the decree, a copy of the taxation notice and a bill of costs. - 5. He has never been served with any hearing notice in Administration Cause No. 10 of 2019 (2012) scheduled for 28th August 2019 and the signature thereon is forged - 6. He has been advised by their advocates of M/s Mutembuli & Co. Advocates that he and his co-applicants can still apply to court to have the dismissal set aside and have the matter re-admitted/ re-instated and that this court does have powers to entertain it. - 7. He has been advised by the above-named advocates that the respondents' act of forging his signature is illegal and should not be sanctioned by this court. - 8. The main suit is premised on an estate which ought to be handled on its merits for determination.

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- 9. Their former lawyers of M/s Samuel Wegoye Advocates who should have helped them then withdrew instructions without informing them, prejudicing their rights to representation. - 55 - 10. He together with his co-applicants have a strong case against the respondents with high chances of success. - 11. Neither he nor his co-applicants are guilty of any inadvertent dilatory conduct since he was never served with any court process but only got to know of the dismissal after being served with the bill of costs. - 12. The application has been brought without delay from the time he discovered that their suit had been dismissed by this court for non-appearance. - 13. If the application is not granted, he and his co-applicants stand high chances of suffering irreparable damages. - 14. It is just and equitable that this application is granted and Administration Cause No. 10 of 2012 be heard on merit

The respondents opposed the application through an affidavit in reply that was deponed by Mr. Wamukota John, the 1st respondent who deposed the affidavit on his and on behalf of the 2nd respondent in which he averred inter alia that he together with the 2nd respondent were granted Letters of Administration in Administration Cause No. 100 of 2009. He averred further that following the grant, the applicants filed Administration Suit No. 10 of 2012 where they sought revocation of the Letters of Administration.

He contended that after filing the suit the applicants failed to prosecute their case for over 7 years and on the 27th August 2019 (*sic*) the suit was dismissed by the High court at Mbale in the decision of Justice Tadeo Asiimwe. That thereupon a bill of costs was filed and served on the applicants on 3rd December 2019. Further that when the taxation hearing came up, the applicants were ordered to secure the services of lawyers as requested.

He averred that on 30th September 2019, the respondents filed their last inventory and all of the estate had been distributed. He contended that Letters of Administration were granted to them following the right procedure. That the application is a waste of court's time as there is no more part of the estate to administer, the application having been filed in 2020 and came up after 3 years when there is nothing to be protected as the estate is distributed.

He contended that the application has been overtaken by events since they as administrators have done their duties and what is left is his duties as an heir to their late father. He contends that the application be dismissed with costs.

#### Representation 85

At the hearing, Mr. Magino Rogers appeared for the applicants while Mr. Obedo Deogracious represented the respondents. With leave of court, the parties proceeded by way of written submissions and the submissions have been considered in the determination of this application.

#### Preliminary Objection. 90

In his brief submission, counsel for the respondents submitted that this application was endorsed on 9th January 2023 and served on the respondents on 13th September 2023 in contravention of Order 49 Rule 2 and Order 5 of the Civil Procedure Rules which requires that service be effected within 21 days from date of filing.

Counsel for the applicants did not respond to the Preliminary objection raised by counsel for 95 the respondents.

#### Determination.

I have reviewed the Notice of Motion on record and the other pleadings.

It is evident that the Notice of Motion was endorsed by the Deputy Registrar on 9th January 2023. 100

Order 49 Rule 2 provides that 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.

According to Order 5 Rule (2) Civil Procedure Rules, the law's position is that summons must be served within 21 days of issuance except; that time may be extended on application made 105 within 15 days after expiration of the 21 days.

According to the Supreme Court decision of Edison Kanyabwera versus Pastori Tumwebaze (2005) 2 EA 86 at 93, this provision is mandatory as non-compliance invalidates all summons which are not served within 21 days.

- It has been rightly held in the case of Rashida Abdul Karim and Another versus Suleiman 110 Adrisi HCMA 09 of 2017 that issuance and service of summons go to the jurisdiction of the Court since it is rather the foundation/premise of the right to be heard, for it's through this process that a party is given notice of the suit and called upon to defend himself/herself. I wish to observe therefore, that issuance and service of summons is a point of law. - The Law is settled that the Court can never sanction what is illegal. (See Makula International 115 versus His Eminence Cardinal Nsubuga (1982) HCB 11).

The failure to serve summons within the prescribed time is one such illegality. The law under Order 5 Rule 3 (b) of the Civil Procedure Rules is that; "Where summons has been issued under this rule and there is no application for extension of time..... the suit shall be dismissed". This is mandatory and I find that the Notice of Motion issued on the 9th of January 2023 and served on the respondents on the 13th September 2023 was stale since the time within which

to effect such serve was never extended by this court contrary to the law.

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This court is alive to the provisions of Article 126 (2) (e) of the Constitution enjoins Courts to deliver substantive justice without undue regard to technicalities. The question of what amounts to "undue regard to technicalities" is to be interpreted by court. The rules and 125 timelines for filing and service are not technicalities, they regulate the conduct of the court's business and ensure not only fairness but an orderly manner of disposal of cases. (UTEX INDUSTRIES VS ATTORNEY GENERAL S. C. C. A. NO. 52 OF 1995)

In the case of Kasirye Byaruhanga & Co. Advocates vs. U. D. B. S. C. C. A. NO. 2 of 1997. The court held that a litigant who relies on the provisions of article 126 (2) (e) must satisfy court 130 that in the circumstances of the particular case before court, it was not desirable to have undue regard to a relevant technicality. Article 126 (2) (e) is not a magical wand in the hands of defaulting litigants.

In this application, the applicants as plaintiffs instituted Administration Cause No. 10 of 2012 and failed to prosecute it until 2019 when it was dismissed, they only woke up when they were 135 served with taxation hearing notices and sought to reinstate the suit by way of an application which they failed to serve the respondent within 21 days or apply for an extension of time within which to serve as stipulated by the law. They have also not addressed this Preliminary Point of Law raised by the respondent to advance reasons for failure to serve within 21 days.

Clearly, this is not a matter where Article 126 $(2)(e)$ should be called to aid, given that litigation 140 must come to an end and justice is also desirable to the respondents who have been in court since 2012 (over 12 years).

In any case, it is evident from paragraphs 10 and 11 of the affidavit in reply and the attachments thereto that the administration process is complete and an inventory has been returned to court hence the suit in Administration Cause No. 10 of 2012 has since been overtaken by events.

I find merit in the Preliminary Objection and uphold the same.

Regarding the merits even if this court were to consider the merits of the application, it is evident that the outcome would still be the same. According to counsel for the respondents, the applicants have not demonstrated having any sufficient cause to warrant the setting aside 150 of the dismissal order since the alleged forgeries of the 1st applicant's signature were not proved and that the former counsel, Samuel Wegoye had withdrawn his instruction and the applicants were well aware.

Counsel for the applicants maintained that the applicants were never served with the court processes and that failure and subsequent withdrawal of instructions by their former lawyers 155 of M/s Samuel Wegoye and Co. Advocates without notice constituted sufficient cause and prayed that the application be granted.

In the instant case, the 1st and 3rd applicants in their paragraphs 6 and 9 of their respective affidavits in support have made reliance on the non-service of hearing notice in Administration Cause No. 10 of 2019 (2012) which was scheduled for 28th August 2019 and that the signature 160 thereon was forged. They further alleged that their former lawyers of M/s Samuel Wegoye Advocates who should have helped them withdrew instructions without informing them thus prejudicing their rights to representation.

According to the applicants, the above acts constituted sufficient cause to justify setting aside of the dismissal order and readmitting/ re-instating Administration Cause No. 10 of 2012. In 165 Rosette Kizito versus Administrator General & Others, SC Civ. Application No. 9 of 1986, reported in Kampala Law Reports Vol. 5 of 1993 at page 4 the court held that; "sufficient reason must relate to the inability or failure to take any particular step in time".

Further, in Bishop Jacinto Kibuuka versus The Uganda Catholic Lawyers Society & Another MA 696 of 2018, Sekaana J aptly observed as follows; 170

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"Sufficient cause is an expression, which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices the standard of a curious man. In this context, "sufficient cause" means that a party had not acted in a negligent manner or 175 there was want of bonafide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion,

it has to be exercised judiciously" 180

> In my view the arguments by the applicants that their former lawyer withdrew instructions without notice are not sustainable as the applicants having filed a suit against the respondents ought to have been vigilant and followed up their case firstly, by checking or having contact with their lawyers and secondly, on a worst case scenario followed up with court in which the suit was filed, physically or in writing.

In view of the above, this court is inclined not to believe the reasons being advanced by the applicants which appear to be an afterthought, having not followed up on their suit without any reasonable excuse. For the reasons above, it is my finding that the applicants have not demonstrated any sufficient cause to warrant the setting aside of the dismissal order in Administration Cause No. 10 of 2012 and re-admitting/re-instating the same as prayed for.

On the preliminary objection, I find merit in the same which disposes of this application.

In the final result, it is my finding that the application lacks any merit and is hereby dismissed with no order to costs since the suit relates to estate administration.

day of $JUNC$ $\ldots \ldots \ldots 2024.$ $\begin{array}{c} \circ \\ \bullet \\ \end{array}$ Dated this ....

Margaret Apiny **JUDGE**