Musoke v Byenkya and Rwese (Civil Appeal No. 50/2001) [2001] UGHC 125 (11 December 2001)

Full Case Text

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

### **CIVIL APPEAL NO. 50/2001**

## **ARISING FROM CIVIL SUIT NO 23/97 IN MASINDI**

# **&gt; ASSUMAN MUSOKE APPELLANT/PLAINTIFF** IO

## VRS

#### RESPONDENT **YOSAMU BYENKYA MUGENYI RWESE:::**

### BEFORE: THE HON. LADY JUSTICE MARY l. D. E MAITUM

# JUDGEMENT: 15

1 *•*

[Appeal from the decision of his worship Bahsekana Sanyu, Chief Magistrate, r Masindi. dated 27Ih June 2001 in Miscellaneous Application No. M. H. 28/99 arising out ofCivil Suit No. M. H 23/97]

3 **20** Paul Muhimbura for the Appellant George Emesu for the Respondents.

This is an appeal by Yosamu Benkya against the decision of the chief Magistrate Masindi who dismissed a suit brought by the appellant against the respondents. °

25 50 The appellant applied to the chief magistrate, Masindi to add the second respondent as a defendant to the suit. Counsel for the respondent raised a reliminarv objection to the effect that summons were issued out of the time fixed bv Law and that the appellants had not asked leave of court to issue fresh summons The learned Chief Magistrate stated that the preliminary objections were not relevant to the determination of the application under order Irule 10(2) and order 1 rule 10. He further quoted section 101 of the Civil Procedure Act. The chief Magistrate then issued fresh summons adding the second respondent th' suit The case went for hearing to another Chief Magistrate, His Worship R Mana Sanyu. Counsel for the respondents again raised a preliminary bjrctionW service of summons having been done after the period prescribed bv law order 9 rule 16(1).

The learned Chief Magistrate after hearing the arguments from both Counsels, up eld the respondents' counsel's preliminary objection and dismissed the suit with costs, hence this appeal.

10 As set out in follows: the memorandum of Appeal the grounds of Appeal are as

- 1. 10 that the learned chief magistrate erred in law and facts when he entertained a preliminary objection that had earlier been overruled by his predecessor upon which there was no appeal. - 2. that the learned trial ChiefMagistrate erred in law and facts when he heard and ruled upon preliminary objection on a matter that was res-judicata. ' - 15

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consequently reached an unfair and unjust decision thereby denying the plaintiffsubstantive justice.

that the learned trial chief magistrate erred in law and facts when he exercised justice by giving undue regard to technicalities and

It is proposed to ask this Honorable court for orders that:

- the order ofthe chief magistrate dismissing the suit be set a side; 1. - that the plaintiffs case be reinstated and be heard on merit; - **3.** the costs of this appeal be granted to the appellants and the lower court's order as to costs be set aside.

Counsel for the Appellant Mr. Muhimbura argued grounds 1 and 2 together 25 and ground 3 separately.

res s He contended that the preliminary objection raised by counsel for pondents/defendants before the second chief magistrate namely:

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- 1. 30 That the summonses were served after 21 days and were therefore invalid and that the application to add another party to the suit was therefore bad in law and - 35 <:■ That the second respondent could not be added as a party since he acted in the course of his employment as local council chairman of Kajura North and was therefore immune from prosecution as he was acting in a judicial capacity.

Counsel for the Appellant further contended that the learned chief magistrate had heard these objections and overruled them. Consequently the learned trial magistrate before whom the case had come for substantive disposal should not have entertained the preliminary objections again since the matter was res judicata.

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On ground three counsel for the appellant argued that since the first chief magistrate before whom the application had been made, had issued a fresh summons for both respondents, the latter summons superceded the first summons. Counsel quoted Art. 126 (2) (e) of the 1995 constitution that courts are enjoined to administer substantive justice without undue regard to technicalities. He contended that service of summons beyond the time stipulated was the type of technicality envisaged by the Constitution.

Counsel for the respondents countered that the learned Chief Magistrate had not pronounced himself on the objections and therefore the preliminary objections could be raised again before the substantive hearing of the suit. He argued that the only order made by the first Chief Magistrate was to allow the appellant to add the second defendant /respondent and made an order to amend the plaint accordingly. Mr. Emesu further argued that the preliminary objections were not determined by the first learned chief magistrate and that was the reason he had to raise them again before the second learned chief magistrate.

The vital point in this appeal is whether the second summons issued by the first Chief Magistrate were nullity of the first summons which were not served according to order 9.r. 16 (1) which states as follows:

"Where after a summons has been issued to the defendants, or to one of several defendants, and returned unserved, the plaintiff fails. for a period of one year from the date of the return made to court by the serving officer. to apply for the issue of a fresh summons, and to satisfy the court that he has used his best endeavors to discover the residence of the defendant who has not been served or that such defendant is avoiding service of process, the court may make an order that the suit be dismissed against such defendant"

rule $(2)$ in such case the plaintiff may, subject to the law of limitation, bring a fresh suit.

$15^{\circ}$

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**TAIL CALMENT**

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$20$

The record of proceedings does not reveal the reasons for non- service of summons for $12$ months as provided by the above order and rule.

For the purpose of an application to add a second respondent to the suit. Counsel for the Respondent's preliminary objections were ruled to be irrelevant to the application.

Regarding the first ground of Appeal, the first learned Chief Magistrate did not actually entertain the preliminary objection that the application was incompetent for lack of service of summons within the requirement of 0.9 and 16 (1). The learned chief magistrate stated that the objection raised by defence counsel was irrelevant to the interlocutory application of MH 28/99 by which the appellant applied for an order to add a second respondent/defendant to the suit. The respondents' preliminary objection was therefore in abeyance. Consequently counsel for the Respondents was free to raise the preliminary objection at the trial.

The second ground of appeal that the second learned chief magistrate 20 erred in law and fact when he heard and ruled on a preliminary objection that was res judicita cannot stand because, the first learned chief magistrate never pronounced himself on the substance of the preliminary objection which was that the purported service of summons after the lapse of twelve months was null and void. Unless the matter directly and substantially in issue have been heard and determined, they are not re-25 judicata - Keharchand v Jan Mohamed [1919-2] EACA P. 71.

The third ground of appeal is that the second trial Chief Magistrate erred in law and fact by giving undue regard to technicalities and consequently reached unfair and un just decision.

Service of summons is mandatory under the civil law. It is not a mere technicality, which can be dispensed with. It is vital to the process of litigation. If summons are not served within a period of 12 months, the appellant/plaintiff has to apply for fresh summons from court under order $\frac{1}{9}$ rule 16 (1). The appellants did not do this but only applied to have a second respondent added to the suit.

In the case of CRAIG V KANSEEN [1943] ALL ER 108. Lord Green stated:

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"The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was made was a mere irregularity, or whether it was something worse, which

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$\mathcal{L}_{\mathcal{L}}$ would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation"

In the instant case service of summons was effected after 12 months contrary to TO order 9 rule $16(1)$ .

The preliminary objection about service contrary to the above order was relevant to the application before the first learned Chief Magistrate and should not have been brushed aside as irrelevant.

Consequently, the order made by the first learned chief magistrate was a I5 nullity, as it had no foundation upon which to rest.

The second learned chief magistrate was right in entertaining a preliminary objection on a matter of vital importance to the legal process. Although fresh summons were issued after adding the second respondent to an amended plaint, the proceedings were a nullity, so the issue of fresh summons could not cure a lack of service according to order 9 rule 16 (1).

For this reason the $3^{rd}$ ground of appeal must fail.

This appeal has failed on the three grounds stated. However, subject to law of limitation, I grant the second prayer of the appellant that the suit be reinstated and be heard on merit.

I set a side the order of the learned Chief Magistrate with regard to costs. Each party shall bear its own costs.

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MARY I. D. E MAITUM **JUDGE**

11/12/2001

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### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

### CIVIL APPEAL NO. 50 OF 2001

(Arising from the order ofthe Chief Magistrate Masindi (HIS WORSHIP BASHEKANA SANYO, ESQ) dated the 27,h day ofJune 2001, made in Civil Suit No. MH 23 of 1997.)

ASUMAN MUSOKE APPELLANT

#### VERSUS

1. 2. YOSAMU BYENKYA MUGENYI RWESE

RESPONDENTS.

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### DECREE IN APPEAL.

This appeal coming for hearing this 11U1 day of December 2001 before HER LORDSHIP THE HON. LADY JUSTICE MARY D. E. MAITUM in the presence MR. MUHIMBURA PAUL the counsel for the Appellant and in the presence of the Respondents' and in the presence of MR. ALEX REZIDA holding a brief for MR. G. O. EMESU the counsel for the Respondents.

### IT IS ORDERED:

That the Appellant's appeal on grounds 1 to 3 is hereby dismissed.

That the order ofthe Chief Magistrate in the regard to costs is hereby set aside

, 2. 3. That subject to the law of limitation, the second prayer of the Appellant to have the suit reinstated for hearing on the merits is hereby granted.

**i 4.** That each party to bear own costs.

Given under my hand and the seal ofthe court this LIday of December 2001.

We approve:

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M/s. Muhimbura *81* Co. Advocates COUNSEL FOR APPELLANT

DEPUTY REGISTRAR

Drawn & Filcdjbv:

EMESU & CO. ADVOCATES Plot No. 4, Johnstone Street, P. O. Box 10613, Kampala.

FEE PAID MEUhtrr " 'T!' TAR7 TO'D'-TCr-wy