Muwonge Samson Ashe v Sebwato Isa and Commissioner Land Registration (Miscellaneous Application 339 of 2024) [2025] UGHC 517 (14 July 2025)

# **THE REPUBLIC OF UGAND A**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **HCT-17-LD-MA-0339 OF 2024**

## **MUWONGE SAMSON ASHE:::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **1. SEBWATO ISA**

# **2. COMMISSIONER LAND REGISTRATION:::::::::::::::::RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI RULING**

## **Background**

This is a ruling with respect to a preliminary point of law raised by counsel for the 1st Respondent to the effect that the 1st Respondent was served with this Application out of time.

The brief background to this Application is that the Applicant brought this Application seeking orders that the Ruling of this Court in HCT-17-LD-MC-0014-2023 delivered on the 24th of September 2024 be reviewed, that Court grants all orders sought in HCT-17-LD-MC-0014-2023 and other necessary orders as the Court deems fit. However, Counsel for the Applicant raised a preliminary point of law, which he prayed that the Court should determine before entertaining the merits of the Application.

# **Representation**

During the hearing, the Applicant was represented by Counsel Jimmy Mayanja, while the 1st Respondent was represented by Counsel Bagonza James Amoti.


#### **Determination of the Preliminary Point of Law**

Before I determine the Preliminary point of law, I would like to point out that Counsel for the 1st Respondent made his submissions on the preliminary point of law orally in court, while Counsel for the Applicant made a brief oral submission and later prayed that the Court allows him to submit by way of written submissions. The court issued directives that the Applicant files written submissions in reply to the preliminary point of law raised by the 4 th June 2025 and the 1st Respondent to rejoin by 10th June 2025. However, I have noted that the Applicant filed his written submissions on the 11th of June 2025, which is clearly out of the time frame issued by this Court. Having filed these written submissions out of the time directed by the Court, I shall not consider them in my ruling on this preliminary point of law.

#### Submissions by Parties

Counsel for the 1st Respondent submitted that this Application was filed on the 14th day of November 2024, was endorsed by the Registrar on the 27th day of November 2024 and was served on the 1st Respondent on the 6th day of May 2025. Counsel for the 1 st Respondent further submitted that under Order 5 Rule 1 and 2 of the Civil Procedure Rules, it is stated that an application should be served within 21 days on the respondent or defendant which meant that the instant application should have been served on the 1st Respondent on the 18th December 2024. However, the 1st Respondent was only served after 5 months. Counsel for the 1st Respondent further submitted that under Order 5, Rules 1 and 3 (a) of the Civil Procedure Rules, the punishment for not complying with the law is that the application should be dismissed. He relied on the decisions in *Nabagala Goreti V Nabukalu Hellen and Simon Tendo Kabenge Vs Barclays Bank.*

Counsel for the Applicant made a brief oral submission to the effect that they only got the signed copy of the application from court in April 2025 and that is why they served the 2nd Respondent on 22nd May 2025. He further submitted that pleadings had not been closed and as such, the 1st Respondent's Counsel could not raise the preliminary objection.


#### Decision of the Court

I have taken into consideration the oral submissions made by counsel for both parties in my ruling. It is settled law that a party may raise a preliminary objection before or at the commencement of the hearing and after hearing the arguments if any from both sides and the court may make a ruling at that stage, upholding or rejecting the preliminary objection. **See Uganda Telecom Ltd Vs ZTE Corporation, SCCA No.03 Of 2017.**

The preliminary point of law raised by the 1st Respondent is that the Applicant served him with this Application out of the time prescribed by the Civil Procedure Rules. It is now a settled position of law that upon institution of a suit, Summons to file a defence may be issued by the Court to the defendant ordering him or her to file a defence and to appear and answer to the claims presented against him or her in those cases. See **Order 5 Rule 1 (1) of the Civil Procedure Rules; Stop and See (u) Ltd Vs. Tropical Africa Bank Ltd, Misc. Application No. 5 333 of 2010; Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93***.*

Over time, the courts have held that a Notice of Motion is in itself a summons of a party/parties to appear before the Court for a hearing. Unlike a Plaint that requires separate summons, a Notice of Motion serves the purpose of a pleading on the part of the Applicant and a summons on the part of the court which necessitates it being endorsed by a Registrar of the court. This therefore means that the service of a Notice of Motion shall be guided by Order 5 Rule 1 of the Civil Procedure Rules. See **Stop and See (u) Ltd Vs. Tropical Africa Bank Ltd, Misc. Application No. 5 333 of 2010**; **Twaihman Wahooli Vs Abdul Karim and others Miscellaneous Application No. 39 of 2022.**

Once the summons has been endorsed by the Court, it shall be served on the defendant/respondent in the manner prescribed under **Order 5 Rule 1 (2) & (3) of** *The Civil Procedure Rules,* which states;

*"(2) Service of summons issued under sub-rule (1) of this rule shall be effected within twenty-one days from the date of issue; 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.* (emphasis added).

*(3) Where summons have been issued under this rule, and—*

*(a) service has not been effected within twenty-one days from the date of issue; and*

*(b) there is no application for an extension of time under subrule (2) of this rule; or*

*(c) the application for extension of time has been dismissed, the suit shall be dismissed without notice."*

The use of the word "shall" in the above provision of the law in my view, makes the requirement to serve the Respondent with the summons within 21 days from the date they are issued by the court mandatory. Failure to serve within the 21 days automatically invalidates the summons to file a defence, which may have been issued by the Court. This would then necessitate the Plaintiff/Applicant to apply to the court to validate the summons by extending the time within which to serve the summons. The power of the Court to extend the time for serving of the summons is, however, restricted, on a plain reading of the rule, to applications made within fifteen days from the date of expiry of the 21 days within which service of the summons should have been effected. (See *Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93; Rashida Abdul Karim and Another Vs Suleiman Adrisi Miscellaneous Application No. 009 of 2017***).**

In the instant case, this Application was filed on the 14th day of November 2024 and was endorsed by this Court on the 27th day of November 2024. The time within which to serve the Summons started running on the day the Notice of Motion was endorsed by the Court. As such, the Applicant was required by law to have served the


Respondents with the summons by the 18th of December 2024. On the contrary, the Notice of Motion was served on the 1 st Respondent on the 6th of May 2025 and the 2nd Respondent on the 22nd of May 2025. That being the case, the Applicant failed to serve the Respondent with the summons within the required 21 days. It is also unfortunate that the window within which to apply for extension of time to serve the summons has since lapsed and as such, the court does not have the jurisdiction to entertain such an application. In the circumstances, the court is left with no option but to dismiss this Application for failure to serve the summons within the prescribed time.

Before I take leave of this matter, I would like to address the point raised by Counsel for the Applicant in his oral submissions, where he stated that he was waiting to get the physical copy of the endorsed Notice of Motion from the court before he could serve the Respondents. This reasoning, in my view, is not proper and is only stifling the efforts of the judiciary to dispense justice within the shortest time possible. It should be noted that the Notice of Motion in this case was endorsed on ECCMIS, which means that the Applicant had access to the digital copy of the summons on the 27th day of November 2024. That gave the Applicant the option of printing out the digital copy and serving it physically on the Respondents within the prescribed time. Alternatively, the Applicant had an option of serving the digital copy of the summons electronically. Counsel for the Applicant can therefore not claim that he was waiting to receive a hard copy summons from the court before he could serve. That is simply unacceptable. In conclusion, I find that the Applicant offended the rule of service of summons to the Respondents, which renders the hearing of this suit as a nullity. For this reason, I therefore dismiss this Application with costs to the Respondents.

I so order.

**………………………………………………………………………………….……**

# **HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

# **AG. JUDGE**

Delivered on ECCMIS this 14th day of July 2025