Mirembe and Another v Nabbanja and 5 Others (Miscellaneous Application 2442 of 2021) [2023] UGHCLD 267 (31 August 2023)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.2442 OF 2021**

#### (Arising from Civil Suit No. 419 of 2015)

#### 1. MIREMBE RACHEAL

**::::::::::APPLICANTS/DEFENDANTS** 2. NAMUBIRU JOYCE

#### **VERSUS**

1. NABBANJA MARIAM

2. NABBANJA MADINA

3. SALIMU SSEMITALA

4. REHEMA NACEEJWE

5. SENTAMU ABDUL

**::::::::::RESPONDENTS/PLAINTIFFS** 6. NAMATOVU ABDU

#### BEFORE HON LADY JUSTICE KANYANGE SUSAN

#### **RULING**

The applicants brought this application by way of Chamber Summon under Section 98 of the Civil Procedure Act cap 71, Section 33 of the Judicature Act Cap 13, Order 6 Rule 28 and 29, Order 7 Rules 11(a), 11(e) and 19 of the Civil Procedure Rules S1 71-1. Seeking for orders that:

- a) Civil Suit No. 419 of 2015 does not disclose a cause of action against the $4^{th}$ and $5^{th}$ Defendant/Applicants. - b) Civil Suit No. 419 of 2015 is frivolous and Vexatious as brought against $4^{th}$ and $5^{th}$ Defendant/Applicants. - c) Costs of this application be provided for.

The application was supported by an affidavit deponed too by the $1<sup>st</sup>$ applicant **Mirembe Racheal**, the respondents opposed the application.

## **BACK GROUND:**

The respondents are beneficiaries in the Estate of Late Musa Segibwa formerly of land (kibanja) comprised on Block 9 plot 486 land at Kagugube Makerere. On the 21<sup>st</sup> day of August, 2015 they instituted Civil Suit No. 419 of 2015 in the High Court Land Division at kampala against three defendants who were; Margret Kibuuka Nakibuuka, Douglas Gawuluguma, Commissioner Land Registration. Seeking among other orders that; the commissioner land registration cancels the first defendant from the title. Later on 24<sup>th</sup> day of February, 2021 the respondents/ plaintiffs filed an amended plaint and included the applicants/ $4^{th}$ and $5^{th}$ defendants wherefore the $5^{th}$ defendant is the registered proprietor on the suit land.

It is upon that background that the applicants/ $4^{th}$ and $5^{th}$ defendant filed witness statements and later filed the present application in which they raised preliminary points of law which they seek this court to determine first.

## **Issues**

1. Whether the applicants' application is fatally defective?

- 2 Whether Civil Suit No. 419 of 2015 discloses a cause of action against the applicants/4<sup>th</sup> and 5<sup>th</sup> defendant? - 3 Whether Civil Suit No. 419 of 2015 is frivolous, vexatious and an abuse of Court process? - 4 What are the remedies available?

## ISSUE No. 1

Whether the applicants' application is fatally defective?

The respondents in the present application submitted that the Chamber Summon, which was served to the respondents is fatally defective, irregular, improper and it has no force of law. That it was neithcr cndorscd by thc rcgistrar/. Iudge nor scalcd by court. Thc respondents cited Order 5 Rule 1(5) of the Civil Procedure Rules. Further Counscl for the respondents also a citcd thc casc of Kinyara Sugar Limited Versus Kyomuhendo Pamela HCMA No. 61 of 2O2O

The applicant in rcply stated that thc court which has powcrs trr endorsc the application gavc dircctions to scrvc thc respondcnts with the application and the same was complied with.

Upon perusal of thc court file the copy of thc Chambcr Summon on thc rccord is not endorscd by thc Rcgistrar/Judgc nor is it scalcd.

# Under Order 5 rule 1(5) of the civil Procedure Rules,

Every such summons shall be signcd by the judgc or such oflicer as he or shc appoints and shall be sealcd by court.

Thus every summon or application should bc signed by thc judge or registrar. Its thus settlcd law that provisions o[ ordcr 5 arc mandatory ald should bc complicd with. scc case of Kanyabwera versus Tumwebaze 2OOS)EA 86 at 93

In the case of lron steel Wares Limited versus CW Matryr and company 1956123 E. A. C. A. L75 at L77 the East African Court of Appeal hcld that Proccdural rulcs are intcnded to scrvc as hand maidens ofjustice, not to defeat it, and we think the high court in its inherent -jurisdiction to control its own proccdurc and has a duty to ensure that each party is given a fair opportunity to statc its carsc and to answer thc case made against it.

In deserving cascs, court may rightfully cxcrcisc its discrction to overlook thc failure to comply with rulcs o[ proccdurc upon such conditions as it decms fit intended to guard against abusc of its proccs s.

Article 126 of the constitution 1995 cnjoins courts to administcr substantive .justicc without unduc rcgard to tcchnicalitics. But in thc

.9, g

Byaruhanga and co Advocates versus Uganda $\quad\text{of}\quad$ case Development Bank SCCA no 2 Of 2007, the supreme court held that Article $126(2)$ (e) is not a magical wand in the hands of defaulting parties.

I find that Counsel for the applicants had an obligation to follow up and ensure that the application is signed by a registrar or judge before serving it. Order 5 is couched in mandatory terms and serving unsigned and unsealed summons is a defect that goes to the root and not a mere technicality.

I thereby find merit in the preliminary objection raised and uphold it. This application is hereby dismissed with costs.

DATED AT KAMPALA THIS ....................................

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**KANYANGE SUSAN** AG JUDGE LAND DIVISION.