Namutebi Safina v Lubega and Others (Miscellaneous Application No. 25 of 2022) [2022] UGHCLD 209 (27 October 2022)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

### **MISCELLANEOUS APPLICATION NO.025 OF 2022**

$\mathsf{S}$

# (Arising out of Civil Suit No.052 of 2018)

# **NAMUTEBI**

SAFINA:::::::::::::::::::::::::::::::::::

### **VERSUS**

#### 10 1. LUBEGA JAMILU

- 2. HIGH TECH PROPERTY AGENCY LTD - 3. SSERUNJONJI FAISAL alias FAROUK - 4. MOSES KAGGA BBIRA:::::::::::::::::::::::::::::::::::

#### 15 Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

The applicant brought this omnibus application by way of chamber summons under the provisions of Section 33 of the Judicature Act cap. 13, Section 98 of the Civil Procedure Act cap.71, Order 5 rules 9, 10 & 32, Order rules 19 & 31, and Order 51 rule 6 of the Civil Procedure Rules SI 71-1 seeking orders that:

- a. The applicant be granted leave to amend her plaint in Civil Suit No.52 of 2018; - b. That the applicant be granted leave to file a reply to the respondents' written statement of defence in the main suit and her written statement of defence to the respondents' counter claim;

- c. The summons against the $1^{st}$ and $2^{nd}$ defendants in the main suit be renewed; - d. Costs of this application be in the cause.

#### 30 Grounds of the application:

The application is supported by an affidavit sworn by Ms. Namutebi Safina, the applicant, which sets out the grounds of the application.


Briefly, that she is the plaintiffin Ctutl Sutt No,52 of2OISwherein she sued the respondents for their fraudulent dealings, and trespass on her land at Nakatcma, and that upon perusal of the plaint which was filed on 3 I "r January 201 8, it was discovered that some material facts that were relevant to the case wcre not capturcd, whilc some were mistakenly represented by

5 the applicant's formcr lawyers.

That under para graph 16 of tt:.e plaint, it was stated that the defendants are trespassers on the suit kibanTa, yet the applicant initially owned the land cquitably and later acquired a legal interest in thc suit property, and that tndcr paragraph-s 8 & 9, it was misreprescntcd that the applicant/ plaintiff exchanged the suit land with thc l\$ & 2"d dcfendants whercas not,

because she has never exchanged, or entered into any transactions with the abovc mentioned defendants for the sale of the land. 10

That based on the advice of her lawyers, it is the applicant's belief that while the main suit is still pending the hearing and final determination by this court, the plaint is still wanling because there are facts that necd to be clarified, and that the amendment will not prejudice the rcspondents in any way that cannot be compensatcd for by costs.

In addition, that while this court has powers to grant an order for amendment for pleadings to enable it determine the real issues betwecn the parties, the amendment shall not in any way change the cause of action in the main suit.

Further, that neither the proof of servicc of thc summons on the 1.1 & 2",r respondents, nor the applicant's response to both the written statement of dcfence and respondents' countcr claim was lrlcd owing to thc negligencc of her formcr lawycrs M/s MayanJa Arlnaltue Aduocates & Sollcltors, thus the mistakes ofcounsel should not be visited on the litigants; and that this court has power to renew summons against a defendant for purposes of mecting the ends ofjustice. 20

The applicant also averred that this court has power to cnlarge timc to do an act and that it is just and equitable that the ordcrs sought herein are granted. 25

# Consid,eration bu court:

A perusal of the affidavit of scrvicc datcd 1{ April,2022 indicates that this court process scrver served M/s Nalukoola, Ko,keeto Adaocdtes & Sotlcltors which firm reprcsents the 3d and 4rh respondcnts. Thc affidavit in rcply was filcd on 1", April, 2022 by thc 4ttl respondent Mr. Moses Kagga Ubira.

The said firm also filed written submissions for both thc 3nl and 4th respondents- Implicdly, the l"r and 2"d respondents wcre nevcr served with this application which had becn filcd on 7'h January, 2022. Accordingly, they did not filc any rcsponse.


Ordet 5 rule 7 (2) provides that scrvice of thc summons issucd undcr order 5 rule 1(7) oJ the Ctvtl Procedure Rules shall be effcctcd within 21 days from thc date of issue; except that the time may bc cxtcnded on application to thc court madc within l5 davs after the expiration of the 21 days, showing sufficicnt reasons for thc cxtcnsion.

5 Order 5 rule I (3) of the Ciail Procedure Rules is cqually instructivc. It statcs thus

Where summors haae been iss-ued und,er this rule and. -

- a) se,1, ice has not been effected utithin tuentg one dags from the dqte of issue; and - b) there is ,to a,pplicqtion lor extension of tlme under subrule 2 of this rulel or - c) the application lo" extension of tirne ha.s been dismissed,

# the suit shall be dismissed without notice.

In respect of this application, the directives of this court to the applicant were that thc application and submissions were to filed/served by 25th March, 2022. Service was effected to the 3'r and 41h respondents by the court process scrver who duly explained in her affidavit

of service why she had to serve the application on 28th March, 2O22 instead of 25th March, 2022 as directed. 15

What counsel for the applicant did not however cxplain was why the 1si and 2nd respondents who were crucial to this application were not servcd and why no prayers were made to seek leave of court to file the application out of time. It was incumbent upon the applicant's side to ensure that the proccss server reached out to each of the partics involved in the mattcr.

Going by the rules as highlighted above, and for the propcr management of the present application, the lirst step ought to have been therefore imploring court to allow the applicant to effect service of the directives out of time to the rcspondents, since they had been made parties, not only to the main suit but to this application as well.

The judgmcnt in Supreme Court dccision in Bitamisi Namuddu us Ruabugand,a Godfreg Civil Appeal No. 076 of 2074 avalled to court by counscl for the 3.r and 4rh respondcnts is binding to this court. 25

Ord.er 5 rule 7 ol the CPR is written in plain, clear and unambiguous terms. Whcrc summons are issued and service is not effectcd within 21 days from thc date of issuc and no application for extension of time is madc, the suit (application in this case) shall be dismisscd, without notice. Needless to add, the rules equally applied to directives of court. In the view of this court, serving somc respondents with the directivcs of court and leaving out the rest would not constitute proper sewice of this application.


Accordingly, the prayers madc to amend a suit and the filing of a reply to a counterclaim before making the 1"1 and 2n,r respondcnts aware of the case against them, would be premature.

Counsel cited the provisions of order a n,Ie 7(2) o/the CPR which provides that a reply to the counterclaim shall be served upon the defendant within 15 days after filing. That Order A rule 18(3) thereof subjects a defence to a countcrclaim to thc rules applicable to general defences.

A party who is genuinely interested in prosecution with cxpediency does not to wait as the applicant did in this case, to seek for orders to amend the suit, renew summons and/or serve a counter defence out of time, four years aftcr filing the suit.

The defence of mistake of former counsel raised by the applicant with all due respect, would not in those circumstances apply as sufficient ground to redeem the applicant's own dilatory conduct.

Counsel raised another issue which court also considers pertinent. That the application which only bears the date of filing was not signed by a judgc or rcgistrar or sealed by a seal of court. That this was a fundamcntal dcfect which is incurablc, rendcring the application incompetent and incurable. That position is also supported by the authority in Islngoma Michael os Laut Deaelopment Centre bIA No, 234 of 2019. 15

Counsel also cited the case of ,tlusseln Badd.a vs lgango. Dlstrlct Land Board and. othe"s:

20 lA No.478 of 2O77,where it was held that for an application to be valid it must not only be fixed but also sigrred and sealcd by court.

Whereas therefore the praycrs sought in the application lic within the discretion of this court to grant, court can only do so when the application is propcrly bcfore it, and if all parties are on board.

I could not agree more therefore with the points generally raised by the counsel for the 3"r and 4h respondents, to the extent that the failure by the applicant to ensure that all the above were duly complied with renders the entire application prematurely and incompetently before this court. 25

I accordingly dismiss it with costs to the 4'h rcspondent.

a Alexqndra Nkorrge a.

. Iudge

2Vh October, <sup>2022</sup> \$r'\*e @:[ b L/l 4 6 ,4.4r" \*