Nantale v Katushabe and 4 others (Civil Miscellaneous Application 111 of 2023) [2024] UGHC 601 (10 July 2024)

Full Case Text

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-LD-MA-0111-2023

(Arising from HCT-05-CV-LD-0075-2022)

NANTALE REHEMA :::::::::::::::::::::::::::::::::::: **VERSUS**

- 1. KATUSHABE SHAMIM - 2. RHONA KABUZIRE - 3. DIANA KABUZIRE - **4. TURINAWE SAMSON** - 5. KANAKURYA :::::::::::::::::::::::::::::::::::: **BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

## **RULING**

## Introduction.

The Applicant brought the instant application seeking for an order $\overline{11}$ of this court allowing her to file a defence in HCT-05-CV-LD-0075-2022 out of time and provision of costs of the application.

The crux of the application was that the Applicant was never $[2]$ served with summons to file a defence or any other document in relation to HCT-05-CV-LD-0075-2022 save for summons for directions. She contends that when she appeared before the learned Deputy Registrar of this court, she was not allowed to say anything because she was not represented.

#### Facts.

The factual background of the instant application as can be drawn $[3]$ from the record was that:

The 1st Respondent filed HCT-05-LD-CS-0075-2022 before this court on 19th July 2022 against the Applicant herein and the remaining Respondents. Summons in that suit were issued out on 25th July 2022. According to an affidavit of service on the court record deposed to by a one Miracle Joakim dated 27th July 2022, it was stated that the Applicant herein was served with copies of summons to file a defence, plaint mediation summaries and an amended plaint on 5th August 2022 upon which she acknowledged service by putting her name on the summons. The hearing of the matter commenced on 25th January 2023. On that date, the matter was adjourned to 30th March 2023 owing to absence of the parties.

On 21st March 2023 the Applicant filed the instant application seeking for the aforementioned orders.

In her reply, the 1st Respondent deposed that the Applicant's $[4]$ affidavit in support of the instant application was full of lies and falsehoods. That the Applicant has at all material times been aware of HCT-05-CV-LD-0075-2022 as she was served a fact which the Applicant admitted. That the application has been brought with unreasonable delay and was an afterthought on the part of the Applicant.

$\cancel{\not\!\!R}$

### Representation.

The Applicant was represented by Ms. Aire Mbabazi while the 1st $[5]$ Respondent was represented by Ms. Nakamya Cate. I was addressed by way of written submissions on the matter and I have considered the submissions.

#### Analysis and decision of the court.

Page 2 of 7

$[6]$ Having carefully read and considered the submissions of both counsel in support of their respective client's case, I found that the main issue for consideration by this court was whether or not there are sufficient grounds to merit the grant of the instant application.

**Order 8 rule 1** of the Civil Procedure Rules provides for the filing of written statements of Defence. It provides thus;

"1. Written statement

(1) The defendant may, and if so required by the court at the time of issue of the summons or at any time thereafter shall, at or before the first hearing or within such time as the court may prescribe, file his or her defence.

(2) Where a defendant has been served with summons in the form provided by rule $1(1)(a)$ of Order V of these Rules, he or she shall, unless some other or further order is made by the court, file his or her defence within fifteen days after service of the summons. [*Emphasis mine*]

The above provision posits that the general rule of the law as stated within Order 8 rule 1(2) of the Civil Procedure Rules above is that a Defendant once served with summons must unless some other or further order is made by the court file his or her defence within fifteen days after service of the summons. The exception to that general rule in my considered view lays in situations where the court makes "some other

or further order" in relation to the filing of the written statement of defence.

It is now the law that court may, in its discretion, upon being $[7]$ shown a sufficient cause enlarge time within which a particular act ought to be done even though the period originally fixed or granted may have expired. (See Rosette Kizito vs Administrator General and Ors (Supreme Court Civil Application no. 9 of 1996 and Hadondi Daniel vs Yolam Engondi (Court of Appeal Civil Appeal no. 67 of 2003). Sufficient cause must relate to the inability or failure to take necessary steps within the prescribed time.

However, where a period of time is laid down by statute, the court does not have residual power or inherent jurisdiction to enlarge such a period of time. (See Makula International Ltd vs His Eminence Cardinal Nsubuga and Anor (Supreme Court Civil Appeal no. 4 of 1981)). $\overline{\psi}$

It is an agreed principle governing applications of this nature that **[8]** the court should at all times ensure that, in the interests of justice, disputes are heard and decided on merit. (See Andrew Bamanya vs Shamsherali Zaver (Supreme Court Civil Application no. 70 of 2001)). This standard is higher where like in the instant matter, the case involves a land matter. (See Al Haji Yahya Balyejusa vs Development Finance Company Limited (Supreme Court Civil Appeal No. 34 of 2000) and Fredrick Kabugo Sebugulu vs The Administrator General Court of Appeal Civil Appeal No. 69 of 2010).

The $2nd$ Applicant in the instant matter made a case for the fact that the Applicant had been served with court process and that an affidavit of service was filed in that regard. On the other hand, the Applicant denied ever being served with such court process and stated that she was only served with summons for directions.

I took time and examined the affidavit of service that was $[9]$ deposed to by a one Miracle Joakim dated 27th July 2022. It would seem from the affidavit that the said process server deposed to having served the Applicant close to **9 days** before he actually served the Applicant on the alleged date of 5th August 2022. This made the said affidavit of service suspect and thus unreliable.

The above notwithstanding, I found that no prejudice would be caused to any of the parties that cannot be compensated by costs if the instant application is granted given that the hearing of HCT-05-CV-LD-0075-2022 is yet to start. (See for example Mohan Kiwanuka vs Aisha Chand (Supreme Court Civil Appeal No. 14 of 2002)).

I will therefore, for the above reasons, allow the instant application with costs to abide the outcome of the main cause.

[10] Before I leave this matter, counsel for the $1^st$ Respondent raised a preliminary point of law in relation to the time within which the instant application was served upon them.

Counsel submitted that whereas the application was signed by the learned Registrar of this court on 30th March 2023, the same was served on the 1st Respondent on 3rd of May 2023, 34 days after the said motion had expired contrary to **Order 5 rule 1** of the Civil Procedure Rules. Counsel prayed to have the application dismissed. No response was made by counsel for the Applicant.

**Order 49 rule 2** of the Civil Procedure Rules provides that: $\overline{111}$

> "2. Orders and notices. how served. All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons."

From the foregoing provision, such orders, documents and notices include a notice of motion like the instant application.

According to Order 5 rule 1 (2) of the Civil Procedure Rules, summons must be served within twenty-one days of issuance 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.

It has been the practice of courts to use and treat the notice of motion as the summons and as such the rules relating to filing and service of suits under Order 5 rule 1 apply to notices of motion too. (See Kaur and others vs City Auction Mart Ltd [1967] 1 EA 108).

It is further now settled that whoever desires any court to give $\overline{121}$ judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove those facts exist. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof.

In the instant matter, counsel for the 1st Respondent desired for this court to give a ruling in his favor that the notice of motion in the matter was served upon his client out of the time stipulated under Order 5 rule 1 of the Civil Procedure Rules. He had the burden to prove that the said allegations were true.

No such evidence was led by counsel for the $1^st$ Respondent or the $1^{st}$ Respondent herself.

In a bid to do substantive justice, I examined the record of the instant application for any such evidence supporting counsel's assertions and I found nothing on the record to prove that the 1st Respondent was served with the motion on the alleged date.

For the foregoing reasons, the preliminary objection is accordingly overruled.

[13] To expedite the hearing of HCT-05-CV-LD-0075-2022, the Applicant shall file and serve her written statement of defence within 10 (ten) days from the date of delivering this ruling. The Respondents, should they so wish to, file a reply thereto within a period of 7 (seven) days after receiving the written statement of defence.

HCT-05-CV-LD-0075-2022 shall be mentioned on 20th November 2024.

$\mathbf{I}$ so order.

Dated, delivered and signed at Mbarara this 10th day of July 2024.

Joyce Kavuma Judge

Page 7 of 7