Nakiberu v Kalemera ( as administrator for the estate of the late rtd Justice Musoke Kibuuka) (Miscellaneous Application No. 82 of 2021) [2021] UGHCFD 5 (3 December 2021)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASAKA

## MISCELLANEOUS APPLICATION NO. 82 OF 2021

## [ARISING FROM CIVIL SUIT NO. 23 OF 2021]

NAKIBERU ROSE DAPHINE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

EDITH MARGARET KALEMERA MUSOKE –KIBUUKA ::::::::::::::: RESPONDENT

[Administrator for the Estate of the Late Rtd Justice

Vincent Ferre Musoke-Kibuka]

*Before; Hon Lady Justice Victoria Nakintu Nkwanga Katamba*

### **RULING**

This application was brought under Order 5 Rules 18 & 32 Civil Procedure Rules for orders that;

- 1) The Applicant be permitted to serve summons to file a defence upon the Respondent by way of substituted service; - 2) That fresh summons be issued to the Applicant for service upon the Respondent; - 3) The Applicant be allowed to serve summons upon the Respondent out of time; - 4) Costs of the application be provided for;

The grounds of the application as contained in the affidavit of Jagwe Ibrahim are briefly that;

- a) On the 26th of June 2021, one Okiring Philip proceeded to the United Nations Africa Institute Secretariat where the Respondent works and when he presented the documents to the Respondent, she demanded for an introduction letter from court; - b) The Respondent declined to acknowledge receipt of the documents; - c) It is just and fair that an order for substituted service be issued;

No affidavit of service.

Counsel for the Applicant submitted that there is no known address for the Respondent and all attempts to reach her at work have failed. Counsel cited Order 5 Rule 18(1) of the Civil Procedure Rules to the effect that where summons cannot be served in the ordinary way for any reason, court shall order he summons to be served by affixing a copy of it in some conspicuous part of the house in which the Defendant in known to have last resided or carried business, or in such manner as the court thinks fit.

### **Consideration;**

The law on substituted service under *Order 5 Rule 18 (1) of the Civil Procedure Rules* which provides that;

"*Where the court is satisfied that for any reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy of it on some conspicuous place in the court house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Substituted service under an order of court shall be as effectual as if it had been made on the defendant personally*."

The purpose of service of summons is to make the defendant aware of a pending suit against them and the purpose of substituted service is to make the defendant aware of the suit if he or she cannot be served personally.

In the instant case, there is an affidavit of service on the record deponed by Okiring Phillip in which he states that he met with the Respondent at her place of work and presented the court documents, although she refused to acknowledge receipt of the documents. He further states that service was effectual and proper in the circumstances.

*Order 5 Rule 15* provides the procedure when the defendant refuses to acknowledge receipt. The process server is required to file a return indicate the circumstances of the service and under Rule 17, the server may be examined to establish the circumstances and declare whether such service was duly effected or make other orders necessary.

In the instant case, it is not clear from the affidavit of service whether the Respondent refused to acknowledge receipt by appending her signature to the court documents or whether she refused to physically receive the documents.

I find that the instant case the defendant/respondent is available and can be served personally and the attempt made to effect service of court process made her aware of the existence of a suit. The purpose of service of summons was therefore fulfilled.

Nevertheless, the right to fair hearing under Article 28 of the Constitution of the Republic of Uganda demands that both parties be heard and therefore, since Counsel for the Applicant and the Applicant filed this application for substituted service on grounds that the Respondent cannot be served in the ordinary way, I will allow the application on the following orders;

- 1) The Applicant is hereby permitted to serve summons to file a defence upon the Respondent by way of substituted service; - 2) The court shall issue fresh summons to the Applicant for service upon the Respondent; - 3) The Applicant is hereby allowed to serve summons upon the Respondent out of time; - 4) Substituted service herein shall be made by affixing a copy of the summons in Civil Suit No. 23 of 2021 at the court notice board and any conspicuous place at the

United Nations Africa Institute Secretariat premises where the Respondent personally worked for gain;

5) Costs of the application are awarded to the Applicant.

I so order.

Dated at Masaka this 3rd day of December, 2021

**Signed; Victoria Nakintu Nkwanga Katamba Judge**