Ndyamuhaki & Another v Smile Business Partners (Criminal Revision 12 of 2022) [2023] UGHC 284 (11 July 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-0012-2022

(Arising from MBR-00-CV-CS-0317-2020)

## 1. NDYAMUHAKI JIMMY

# 2. NKASIBWE CYRILL ::::::::::::::::::::::::::::::::::: **VERSUS** SMILE BUSINESS PARTNERS ::::::::::::::::::::::::::::::: RESPONDENT

**BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

## **RULING**

## Introduction.

[1] This was an application for revision of the ruling and orders of the learned Magistrate Grade One sitting at the Chief Magistrate's Court of Mbarara at Mbarara in MBR-00-CV-CS-0317-2020. It was brought by way of Notice of Motion under Sections 83 and 98 of the Civil Procedure Act, Cap 71 and Order 52 rr. 1 and 3 of the Civil Procedure Rules. SI 71-1 and Section 17 of the Judicature Act.

The gravamen of the application was that the decreed sum by the $[2]$ learned trial Magistrate was excessive yet the 1st Applicant was effecting payment to the Respondent and he had secured the loan with a mortgage which was still available.

The thrust of the Respondent's reply to the instant application was that the application was incompetent, frivolous and bad in law and time barred.

## Representation.

The Applicants were represented by M/s Ruyondo & Co. $[3]$ Advocates while the Respondent was represented by M/s Ahimbisibwe & Agaba Co. Advocates. Both Counsel filed written submissions which I have considered.

## Analysis and decision.

## Preliminary points of law:

Counsel for the Respondent raised two points of law regarding Г41<br> the instant application. These related to service of the application on the Respondent and that the application was an abuse of court process, barred in law and untenable.

(a) Service of the application.

Counsel for the Respondent submitted that the Applicants served the instant application onto the Respondent on 12<sup>th</sup> September 2022 after a period of four months. That this was contrary to the time stipulated under **Order 5 Rule 1(2)** of the Civil Procedure Rules.

The Applicant did not reply to this objection. It was therefore left to court to determine whether the objection is meritorious.

#### Analysis.

Order 49 rule 2 of the Civil Procedure Rules provides that: $[5]$

"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).

According to the Supreme Court in Kanyabwera vs Tumwebwa [2005] 2 EA 86, all the provisions under Order 5 rule 1 of the Civil Procedure Rules are of strict application since a penalty accrues upon their default.

On perusal of the court record, the instant application was filed $[6]$ in this court on 10<sup>th</sup> May 2022 and endorsed by the learned Acting Registrar of this court on 11<sup>th</sup> May 2022. It is the submission of counsel for the Respondent that the application was served onto the Respondent close to four months after on 12<sup>th</sup> September 2022.

$\mathscr{V}$

It is trite law that proof of court service is by an affidavit of service sworn by the serving officer and filed on the court record. (See Order 5 rule 17 of the Civil Procedure Rules and Edison Kanyabwera vs Pastori Tumwebaze (Civil Appeal 6 of 2004) Supreme Court).

The record of the instant application does not contain an affidavit of service as proof of service of the instant application on the Respondent either on an earlier date or belatedly. On a balance of probabilities, I am inclined to believe the submissions of counsel for the Respondent that the Respondent was served four month after.

I therefore find merit in the first preliminary objection. It is the finding of this court that the instant application was served out of time.

Order 5 rule 1(3) of the Civil Procedure Rules provides that:

"(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." [Emphasis mine]

Having found that the notice of motion was served belatedly, it follows that this application is dismissed. My finding on this point of law puts to rest the other objection raised in the submissions of counsel for the Respondent.

For completeness, before I leave this matter, I will examine whether the whole application has merit in its self.

The jurisdiction of this court to revise decisions of the subordinate $[7]$ courts is provided for under **Section 83** of the **Civil Procedure Act**. The section provides as follows;

"The High court may call for the record of any case which has been determined under this Act by any Magistrate's *court and if that court appears to have;*

Exercised a jurisdiction not vested in it in $a)$ law *exercise* Jurisdiction vested $b)$ Failed to $\overline{a}$ so c) Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, The High court may revise the case and may make such order in it as it thinks fit"

In the case of Mabalaganya vs Sanga (2005) E. A 152, it was held that; in cases where High Court exercises its Revisional powers, its duty entails examination of the record of any proceedings before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the Magistrate court.

Therefore, decisions are revised when the trial Magistrate fails to exercise his or her Jurisdiction or where he or she acts illegally or with material irregularity or unjustly. In an application for revision, one has to prove that the judicial officer acted without jurisdiction, or failed to exercise the jurisdiction so vested or acted illegally, irregularly or unjustly

Section 83 of the Civil Procedure Act can only be invoked when **[8]** or if it appears that the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. In the case of **Matembe vs Yamulonga (1968) 1 EA 643**, court held that;

"Revision applies to jurisdiction alone, the irregular or nonexercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

I have examined the whole application and affidavit in support [9] and I have not found grounds for revision of the learned trial Magistrate's orders in MBR-00-CV-CS-0317-2020. Whereas counsel for the Applicant submitted that under paragraph 5 of the Applicant's affidavit in support of the instant application, the Applicant deposed that they were never served with pleadings to defend them, the paragraph states something different. The paragraph reads that;

> "That the 1st Defendant has been effecting payment of the said money as required of him and we have been served with any pleadings from court in this matter."

Even if this court was to consider the above as an error in the typing, non-service or ineffective service of court process does not fall within the purview of revision. As I have already pointed out herein above revision applies to jurisdiction alone, the irregular or non-exercise of it, or the illegal assumption of it. It is a restricted remedy available to an aggrieved party. The question of non-service or ineffective service would have been a proper question for review before the learned trial Magistrate as it would have been an error apparent on the face of the court record.

This application is therefore without merit. It would have been dismissed by this court.

[10] The application is therefore dismissed with costs to the Respondent.

I so order.

| Dated, delivered and signed at Mbarara thisday of | | |---------------------------------------------------|--| | | |

Joyce Kavuma

Judge