Musoke Masembe v Victory Christian Centre (Miscellaneous Application 468 of 2024) [2024] UGHCLD 207 (22 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION MISCELLANEOUS APPLICATION NO. 468 OF 2024** (ARISING FROM CIVIL SUIT NO. 309 OF 2023) HENRY MUSOKE MASEMBE ::::::::::::::::::::::::::::::::::: **VERSUS** VICTORY CHRISTIAN CENTER:::::::::::::::::::::::::::::::::::

BEFORE HON. LADY JUSTICE ELIZABETH JANE ALIVIDZA

### **RULING**

## **REPRESENTATIONS**

The Applicant represented himself.

The Respondent was represented by Sseguya and Co. Advocates

## **INTRODUCTION**

The Applicant brought this Application under Section 96 and 98 of the Civil Procedure Act, Order 51 rule 6 and 52 rules 1 and 3 of the *Civil Procedure Act* seeking orders that;

- 1. Leave be granted to the Applicant to file his written Statement of Defence out of time. - 2. Costs of this Application.

# **BACKGROUND**

The Respondent filed civil suit no. 309 of 2023 seeking declarations that the Applicant is a trespasser or that part of the Applicants' development encroaches on the Respondent's land situate at Kibuga lock 7 P1ot967 Ndeeba, vacant possession, general damages, eviction order and costs.

The Respondent served the 3.d defendant with summons to file a defence on the 15th August 2023, the Respondent then effected substituted service through the New vision newspaper dated 23.d October 2023. The Applicant did not file a defence hence this Application for leave to file a written statement of defence.

The Applicant in his Affidavit in support of this Application contends that;

- i. The Respondent filed civil suit No. 3O9 of 2023 and did not serve the Applicants with summons to Iile a defence and Plaint. - ii. That they learnt about the court proceedings late through the Plaintiffs witness a one Ibrahim Magemeso on the l4th day of February 2024. - iii. That the Applicant proceeded to High Court (land division) registry to inquire about civil suit No.309 of 2023, and the court staff in the registry confirmed that the case exists. - iv. That by the time the Applicant got to know about Civil suit No. 3O9 of 2023, the time within which to file a written statement of defence had already lapsed. - v. That they have a plausible defence that raises several of both law and fact and triable issues that merit adjudication and hearing the case interparty.

- v1 As an Applicant, he knows that this honorable court has inherent powers to make orders necessary to achieve the ends of justice. - v1l. The failure to file a defence out of time was occasioned by the mistake of the Respondent who never served the applicant with summons to file a defence and a plaint. - vl11. That he knows that in such circumstances, courts of law do not normally visit the omission, inadvertence and or negligence/dilatory conduct of the respondent on an innocent litigant. - 1X The Applicant will suffer greatly if civil suit No.309 of 2023 is heard and determined without according him a hearing on account of failure to file a defence. - The Respondent will not be prejudiced in anyway if the time for filing the defence is extended if at all they are before court to seek ends of justice and that the applicant will be aided to defend himself.' x. - x1 The Applicant enjoys a non derogable right to be heard and should humbly be granted leave to file defence out of time.

The Respondent filed an affidavit in reply to this application deponed by Joel Mukisa Zziwa, contending that;

1 The Application is a misconceived, a nonstarter in as much as it is personal, and has been overtaken by event as there is already a defence filed.

- The summons to file a defence were served and endorsed by the 3.d Defendant in the main suit who is a joint administrator with the Applicant hereof, and since then has been moving to court with the Applicant for the other cases, in which the Respondent is involved. 11 - That whereas the 3.d Defendant received and endorsed the summons, there was no written statement of defence Iiled which he believes was deliberate. 111. - On two occasions while following up those other cases before this court, the Respondent's Advocate expressly asked the Applicant in his presence and of the 3'a defendant, why they had not filed a defence to C. S No. 309/2023, and they said they would. lV. - This Court directed substituted service of summons to file defence which was done in the New Vision Newspaper of 23.dOctober 2023, evidence of which is already filed on record v - When there was a default to file the written statement of defence, the Respondent was forced to apply to proceed exparte, and has since then proceeded and closed its case. vl.

The Applicant in rejoinder contends that;

- <sup>1</sup> The purpose of service of summons is to procure attendance o1 court and the same has been served. - 11. The Written Statement of Defence that the respondent writes about and a letter to the Honorable Judge, which the respondent was silent about, was an informa-l application

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intended as prayers to this honorable court to be allowed as party to the civil suit No.3O9 of 2023, that he was later advised to make a forma-l application instead of a mere letter. That is the reason he later filed this application.

- 111 The purported written statement of Defence in respect of civil Suit No. 3O9 of 2023 was never admitted, it is not signed by any court officer, it remained as a draft and no court fees in respect of the same were ever paid - lV. The Applicant was never served with summons in respect of civil suit no. 309 of 2023 and yet he is a joint owner of the developments on Kibuga Block 7 Plot 968 which are purported to be encroaching on Kibuga block 7 Plot 967. - V That if there had been proper service of summons, the Respondent would not have moved court to use substituted service. That the law requires that a Plaintiff must first seek service of summons in the ordinary way before resorting to substituted service - v1 that the paragraph 8 of the affidavit in reply is contradictory with paragraph 4 as one cannot claim that a written Statement of Defence was filed(under paragraph 4 of the Respondent's affidavit in reply), and then claim that there was default in filing a written statement of defence - v11 The Applicant was entitled to personal service of summons as a joint owner of Kibuga Block 7 Plot 968 which was not done. That if service upon the 3.d Defendant in civil suit no, 3O9 of 2023 had been considered sufficient then there would not have been

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any need for substituted service as was done by the Respondent.

That the estate of the late Namatovu Christine was dissolved after the inventory was endorsed by court and the same is nonexistent, Kibuga Block 7 Plot 958 is owned by the lnd 61d Jrd Defendants to Civil Suit No. 309 of 2023 and is not part of the estate of late Namatovu Christine. v1l1.

#### ISSUES

The Applicant raised the following issue;

1. Whether the Applicant should be granted leaue to file a witten statemerut of defence out of time?

#### Submissions

The Applicant relied on Order 51 rule 6 of the ciuil procedure Rules tt:e power to grant or not to grant an extension of time is discretionary. The primary consideration should be seeing to it that substantive justice is done without undue regard to lapses, mistakes or faults

He further submitted that the primary consideration by court in an application such as this is whether suflicient cause for the delay or failure to file a Written Statement of Defence is shown. He relied on the case of Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of 2OO3, it was held that:

"it is tite law that time can onlg be ertended if sulficient cause is shown. The sulftcient cause must relate to the inabilitg or failure to take necessary step within the prescribed time. It does not relate to

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taking a wrong decision. If the applicant is found to be guiltg of dilatory conduct, the time uill not be extended".

The Applicalt submitted that the Applicant has suflicient cause as the same has been shown in the Affidavit in support of the Application. That the Applicant only found out about Civil Suit No. 309 of 2023 through a one Ibrahim Magemeso one of the Respondent's witnesses in Civil Suit No.309 of 2023, the Respondent did not serve the Applicant yet the Applicant lives on ring road street, Kibuga Plot 968 Block 7 and the respondent is located on Kibuga Plot 967 Block 7 which is just below his residence meaning that the Respondent knows where the Applicant lives and could have served him but he dubiously chose not to do so. That instead the Respondent filed for substituted service and the summons were put in the New Vision Newspapers of 23rd October 2023. This service was improper as there was a way of serving the summons on the Applicant in the ordinary way contemplated by the law

The Applicant further submitted that the Respondent in this case breached order 5 rule 8 of the civil procedure rules on service of summons as it was practicable to effect personal service upon the Applicant but the Respondent chose not to, that the respondent chose substituted service for no appa-rent reason. That order 5 rule <sup>1</sup>8 of the ciuil procedure rules substituted service can only be effected where for any reason the summons cannot be served in the ordinary way, in this case, the summons could be served in the ordinary way.

<sup>7</sup> c In response, the Respondent submitted that this application is incompetent as the Applicant has no locus to defend this suit individually or singly. That there is already a written statement of defence filed and signed by all the defendants, this application seems to have been overtaken by events therefore it is incompetent.

Counsel for the Respondent a-lso submitted that the main suit has long proceeded exparte, the Plaintiff had closed its case, there is no order to set aside the exparte proceedings. Counsel further submitted that the Application is premised on fa-lse hoods that the Applicant was never served with summons to file defence. That the 3'd Defendant was served and he duly endorsed on the process on lOlOS12O23. That he was served in his capacity as administrator which binds the estate and an affidavit of service was filed, subsequently the Court ordered service through substituted service that was done through New Vision Newspaper of 23 I lO I 2023.

That the Applicant took a misguided positon by ignoring to file written statement of defence, hence they must bear the costs.

In rejoinder, Counsel for the Applicant submitted that there is a misconception by the Respondent that Kibuga Block 7 Plot 968 which land is claimed to have the developments that encroached on the suit land in civil suit 309 of 2023 is part of the estate of the late Christine Namatovu and that the Defendants are its administrators. The fact is that the 2nd and 3'd Defendants in civil suit No. 309 of 2023 xe the registered proprietors /owners of Kibuga Block 7 Plot 968 and the Estate of the late Namatovu Christine was dissolved upon the

endorsement of the inventory. The said estate is not the registered proprietor of Kibuga Block 7 Plot 968

## Decision of court

Order 8 rule 1 (2) of the Ciuil Procedure Rules a-llows the Court to extend time within which to file a written statement of defence. It provides that where a Defendant has been served with summons in the form provided for by rule 1 (1) (a) of Order 5 of the Ciuil Procedure Rules, he or she shall, unless some other or further order is made by the Court, file his or her defence within 15 days after service of the summons.

Order 51 Rule 6 of the Ciuil Procedure Rules gives the Court power to enlarge time upon such terms, if any as the justice of the case may require for doing any act or taking any proceedings under the rules. It states that;

"Wllere a limited time has been fixed for doing any act or taking ang proceedings under these Rules or bg order of the court, the court shall haue power to enlarge the time upon such terms, if ang, as the justice of the case may require, and the enlargement mag be ordered although the application for it is not made until afier the expiration of the time appointed or allowed; except that the costs of ang application to extend the time and of ang order made on the application shall be borne bg the parties making the application, unless the court shall othenaise order"

<sup>o</sup> fr 6l

This Court has discretion under Section 98 of the Civil Procedure Rules to administer justice, however such discretion has to be exercised in consideration of the case in its entirety.

The power to grant or not to grant extension of time is discretionary. Court to extend time within which to Iile a defence, the Applicant must prove that there is a sufficient cause for the failure to do so.

Black's Law Dictionary Sth Edition at Page 231 defines "sufficient cause" to be analogous to "good cause" or'Just cause", which simply means "legally sufficient reason."

CACA No. 1 of 2006). it was held by the Supreme Court that "sufficient reason or cause depends on the circumstances of each case and must relate to inability or failure to take a particular step in time. In Florence Nabatanzi u. Naome Binsobedde S. C. Ciuil. Application No. 6 of 1987 (cited with approual in Hikima KAamanwpa u. Saiiabi Chris

In the case of Hadondi Daniel us Yolam Eqondi Court of Appeol Ciuil Appeal No 67 of 2OO3 Court held that

" it is tite lau that time can onlg be extended if sulficient cause ts shotun. The sulficient cause must relate to the inability or failure to take necessary step within the prescibed time. It does not relate to taking a urong decision. If the applicant is found to be guiltg of dilatory conduct, the time will not be extended"

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In this Application, the Applicant contends that he was not served with summons, he therefore failed to file his written statement of defence in the required time period.

## Seruice of summons

The importance of service of summons was clearly laid out in the case of Geoffreu Gatete and Another u William Kuobe t2OO7l UGSC 7 (21 September 2O0 v , the supreme court noted that;

"There can be no doubt that the desired and intended result of seruing summons on the defendant in a ciuil suil is to make the defendant aware of the suit brought against him so that he has the opporhtnitg to respond to it bg either defending the suit or admitting liability and submitting to judgment. The surest mode of achieuing that result is seruing the defendant in person. Rules of procedure, howeuer, prouide for such diuerse modes of seruing summons that the possibilitg of seruice failing to produce the intended result cannot be ruled out in euery case."

Summons are deemed to have been effectively served in person, this is a rule under Order 5 rule 10 of the Ciuil Procedure Rules that provides that wherever it is practicable, service shall be made on the Defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient.

Under paragraph 4 of the Affidavit in reply, the Respondent deponed that summons to Iile a defence were served and endorsed by the 3'a

<sup>11</sup> or

defendant in the main suit who is a joint administrator with the applicant.

A perusal of the civil suit, the Respondent filed an Affidavit of service deponed by Mugambe Godfrey on the 15th August 2023, under paragraphs 3 and 4 of the Affidavit he states that he was instructed by the firm Sseguya & Co. Advocates to serve summons on the Defendants, that on the 10/05/2023 before he proceeded to serve the Defendants, the 3.d Defendant appeared in person to the said firm of Advocates to serve an Affidavit in reply in another case in which he is a party as co-Respondent. That he used that opportunity to serve the summons to file the defence in the case on the 3'd defendant as a joint administrator on behalf of the estate being sued.

Order 5 rule 9 of the ciuil procedure rules provides for service of summons, where there are more defendants than one, it provides that service of the summons sha-ll be made on each defendant. The Respondent in this case only served the 3'a defendant with summons on the LO IOS 12023 and not the remaining Defendants.

It is my finding that the Applicant was properly served but deliberately choose not to file his Written Statement of Defence.

I am inclined not to grant this Application. However the main suit is against the three Administrators. It would be unfair to penalize them due to omissions made by Applicant.

Therefore, I am granting this Application on the following conditions;

1. The Applicant to deposit 3 million in Court as security for costs.

- 2. The Applicant pays the cost for this Application. - 3. The case 309 of 2023 is fixed for hearing on 9<sup>th</sup> December 2024 at 10.00am. Hearing notices to issue. Incase the Applicant is unable to proceed, Court will go ahead with the exparte proceedings

So ordered

Elizabeth Jane Alividza

Judge

22<sup>nd</sup> August 2024

## **Ruling Delivered on ECCMIS**

Date: 22/0/2024<br>BAUND20