Nankabirwa v Namugenyi Sozi (Civil Suit No. 130 of 2016) [2021] UGHCLD 102 (17 August 2021)

## THE REPUBLIC OF UGANDA

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

## **LAND DIVISION**

## CIVIL SUIT NO. 130 OF 2017

NANKABIRWA EVA WALUSIMBI................ PLAINTIFF

**VERSUS**

$\mathsf{S}$

MARIAM NAMUGENYI SOZI.......................... DEFENDANT

Before: Lady Justice Alexandra Nkonge Rugadya

# 15

#### RULING ON A PRELIMINARY OBJECTION

#### Introduction:

The defendant's counsel in this matter seeks to challenge the late service of summons by the plaintiff, claiming that the summons were issued on 24<sup>th</sup> February, 2017 and that on 21<sup>st</sup> March, 2017 instead of filing an application for the extension of time within which to serve fresh summons, the plaintiff counsel had applied to court for its renewal by letter, which process is unknown under the *Civil Procedure Rules*, hence amounting to an illegality, which this court should not condone. He submitted therefore that such failure to serve summons was not a mere technicality but rather touched the core foundation upon which the right to be heard is premised.

25 In response, the plaintiff counsel however while admitting that the summons had expired before being served, submitted that he had applied by letter and was granted fresh summons on 21<sup>st</sup> March, 2017 which had been duly served upon the defendant on 6<sup>th</sup> April, 2017 within the time as stipulated by the rules.

That the application for renewal and or extension of the summons was done within a period of 15 days from the expiry of the 21 days of the issuances of the original summons, as stipulated under the law.

# Consideration of the issue:

I have carefully considered the submissions from both sides. $\mathsf{S}$

Order 5 rule 1 (2) provides that service of summons must be effected within 21 days from the date of issue; except that time may be extended upon application to court, which must be made within 15 days after the expiration of the 21 days.

The rules which as correctly pointed out are handmaidens of justice. They are flexible enough to allow a defendant who for some justifiable reason may have failed to effect service within the 10 stipulated time, to file an application for the fresh summons to be issued and for the enlargement of the time within which the same is to be effected.

In Ejab Family Investments and Trading Company Ltd vs Centenary Rural Development Bank Ltd, HCCS No. 001 of 2014, court noted that the use of the word shall under order 5 rule 1(2) of the Civil Procedure Rules prima facie makes mandatory the requirement to effect summons within the twenty-one days. (See also: Kanyabwera vs Tumwebaze [2005] 2 EA 86 $AT$ 93). The application for extension must be made formally to court.

It is not in contention that the original summons had expired on 24<sup>th</sup> February, 2017, which had prompted the plaintiff side to write to court seeking fresh summons on 21<sup>st</sup> March, 2017, some 25 days after the expiry of the original summons.

The objection in this application as I perceive it is therefore two-fold.

In the first place, the request for extension of time by learned counsel for the plaintiff which ought to have been presented by way of a formal application, was made irregularly, through a letter dated $21^{st}$ March, 2017. As noted by this court, it was made without counsel availing to court with any reason to as to why the original summons were never served.

Secondly, the letter of request which counsel for the plaintiff seems to suggest was an application for extension was filed outside the 15 days stipulated by law.

Court accordingly committed an illegality when it relied on a plain letter instead of a formal application with reasons, to justify the grant of the fresh summons.

$\overline{2}$

30 Thus in effect three wrongs were committed in respect of this particular application. The first is failing to serve the defendant when the summons were originally served.

Juhal of

Having failed to serve the plaintiff ought to have applied formally, with reasons to court to support the request for enlarging time within which to serve the defendant. The reasons must presented by way of affidavit evidence.

Failure by the registrar of this court to consider the above omissions and his failure to adhere to the rules of procedure were illegalities which court cannot condone. (Makula International versus His Eminence Cardinal Nsubuga (1982) HCB 11.)

It has been stated before that the rules of procedure are intended to serve as the hand maidens of justice, but not to defeat it. (Iron and Steel Wares Ltd vs C. W Martyr and Company (1956) 23 EACA 175 at 177).

Although a court may choose to disregard the technicalities for the sake of administering 10 substantive justice, as per article 126 (2)(e)) of the Constitution, the said article is not a panacea for all ills.

In appropriate cases court will not hesitate to strike out pleadings, given the fact that one of the aims and overriding objectives of the rules is to enhance expeditious disposal of suits and curtail abuse of process for ulterior motives.

$\mathsf{S}$

If these propositions are correct as I think they are, it would follow that a suit would be liable for striking out at any stage, upon expiry of the stipulated periods.

For those reasons, such noncompliance with the procedures necessary for the renewal of summons to file a defence is a fundamental defect and not a mere technicality that can be cured through the inherent powers of this court.

It goes to the jurisdiction of court, as declared earlier by this court in **Asiimwe Francis vs** Tumwongyeirwe Aflod HCMA No. 103. Thus any purported application or service after the stipulated time limits would be ineffective and/or therefore of no legal consequence.

I have also carefully perused the record in search for an affidavit of service. I have found none. 25 The claim made that the defendant had been served through her daughter on the date indicated as 6<sup>th</sup> April, 2017 were mere submissions from the bar.

These anomalies cannot be ignored, and in my view the filing of the defence could not be perceived as a waiver to those mandatory requirements. I am supported in this by the provisions of order 9 rule 2 of the CPR.

By virtue of Order 5 rule 3 (b) of the CPR, where there is failure to adhere to the twenty one 30 days rule, such failure would empower this court to dismiss the suit, without any notice, more so where, as noted in this case, there was no proper application for the extension of time.


For those reasons therefore, I hereby dismiss the suit with costs.

Alexandra Nkonge Rugadya

$\mathsf{S}$

**Judge**

16<sup>th</sup> August, 2021

Deliveed by email<br>17/08/2021<br>Anhong