Nsubuga & 3 Others v Kamuje (Civil Application 21 of 1996) [1997] UGSC 25 (21 March 1997)

Full Case Text

ANNEQUEE F

# THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

### AT MENGO

(CORAM: J. W. N. TSEKOOKO, J. S. C.)

CIVIL APPLICATION NO.21 OF 1996

#### **BETWEEN**

DAVID NSUBUGA 1.

> <pre>:::::::::::::: APPLICANTS</pre> JAMES SABITI KACHOPE

- DAVID MUHENDA 3. - $4.$ **MUGENYI**

$2.$

#### AND

MARGARET KAMUJE

<pre>:::::::::::::::::::: RESPONDENT</pre>

(An application from the decision of the High Court of Uganda at Fort Portal (Rajasingham, J.) dated 12/7/1995

## CIVIL APPEAL NO.52 OF 1994)

RULING:

The applicants, David Nsubuga, James Sabiti Kachope, David Muhenda and Mugenyi (hereinafter referred to respectively as the first, the second, the third and fourth applicant) instituted this application by notice of motion under Rule 4 of the rules of the Court seeking for an order to allow service out of time of Notice of Appeal and a copy of the Application for the record of proceedings upon the respondent Margaret Kamuje. The application is supported by an affidavit sworn by the third applicant on 13/9/1996. In reply to that affidavit, Mr Tibaijuka K. Ateenyi, Advocate, swore an affidavit on 31st January, 1997.

There are four general grounds in support of the These appear in the notice of motion and state application. $that :-$

- The respondent was unrepresented at the hearing of $(i)$ Civil Appeal 52/94 and could therefore not be served through counsel. - The respondent had no fixed place of abode where she $(ii)$ could be served. - The whereabouts of the respondent were unknown to the (iii) applicants and their counsel during the time within which she should have been served. - applicants have in subsequent applications The $(iv)$ proceeded by way of substituted service.

The background to this application was briefly given by Mr Musana, counsel for the applicants. A more detailed summary is contained in the ruling of my brother Oder, J. S. C., dated $16/8/1996$ in Civil Application No.7 of 1996 - Persis Okao & 5 others Vs Margaret Kamuje. The need for the present application was appreciated after 7/96 was struck out. The present 3 applicants were among the joint applicants with Persis Okao in the said application 7 of 96.

The background to the application appears to be that in 197 $\bigcirc$ the respondent instituted a Civil suit in the Magistrate's court of Fort Portal for recovery of land held under the Kibanja tenure which had apparently been given to the respondent by her uncle, one Nyabugaba, the brother of Karasuna who was the respondent's It was Civil Suit No. MFP 48 of 1976 before a Grade II father. The respondent was the successful party in that Magistrate. suit. When she later applied for execution of the decree in the suit, due to a succession of mishandling by Magistrates and Court Registry staff, the file went missing, resulting in the matter dragging on for many years. Eventually in 1993, when matters seemed to be set in motion, the applicants in Civil Application 7/96 were called upon, as persons in apparent occupation of the disputed land, to show cause why execution should not issue

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against them. The defendant in the suit, Karasuna, had died in 1987, long after the judgment against him had been passed.

Consequently, the applicants in Civil Application 7 of 1996 instituted objection proceedings before a Magistrate Grade I, Mr Katorogo, objecting to the execution of the decree against them.

The learned Magistrate Grade 1 visited the locus in quo and, apparently, drew a sketch plan or map thereof during the hearing In his ruling, the learned of the objection proceedings. Magistrate ruled that the boundaries of the disputed land excluded the land occupied by the first four objectors in Civil Application 7 of 1996 namely Persis Okao, David Nsubuga, James Sabiti Kachope and David Muhenda. The present three applicants were in that dispute. But the learned Magistrate ruled that the boundaries of the disputed land included the land of the other two objectors, namely, Nyamutale and James Mugenyi, now the 4th applicant in this application.

Nyamutale and Mugenyi appealed to the High Court against that ruling. The appeal was heard by Rajasingham, J. who also visited the locus in quo. In his judgment dated 12.7.1995, the learned judge disagreed with the Magistrate Grade I as regards the objection of the first four objectors, dismissed the appeal and granted an order for execution of the original decree in favour of the present respondent against all. The then applicants lodged a notice of appeal and applied for copy of proceedings before Rajasingham, J. But they did not serve the notice of appeal and the application for proceedings as required by Rules 76(1) and 81(1). That is why Application No.7 of 1996 was instituted. That application was found to be incompetent. The applicants have now brought this So it was struck out. application.

When arguing the application, Mr Musana read the contents of Muhenda's affidavit. Paragraphs relevant here are 5 to 9 and they state as follows:

That the hearing of Civil Appeal $52/94$ before $"5.$ RAJASINGHAM the respondent Kamuje was Justice unrepresented.

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6. That the respondent is my aunt and to the best of my knowledge she has no fixed place of abode.

That after the said Notice of Appeal was lodged 7. all efforts were made by myself, by my counsel and court officials at Fort Portal to trace the respondent for service of the said Notice of Appeal and the copy of the letter seeking for proceedings but to no avail. A copy of the letter seeking proceedings and copied to the respondent is attached hereto as annexure 'B'. That failing to find the Respondent for service of 8. process, we applied through Kajara, Kabiito & Company Civil Advocates for substituted service in Miscellaneous Application No.325 of 1995 a copy of the

order is attached hereto as Annexure 'C'. 9. That since the filing of the Notice of Appeal, todate the Respondent has through various counsel to wit, M/s Kanyunyuzi & Co. Advocates, M/s Byaruhanga & Co. Advocates & M/s Essanyu and Co. Advocates acted as though served with Notice of Appeal (Annexure 'D' & 'F') until the objection as to no service was raised in the affidavit in reply to the Application for filing the Memorandum of Appeal out of time."

Mr Musana cited the cases of Shanti Vs. Hindocha (1973) EA 207 and Sezi Busuzi E. Byamugisha Vs. E. Kareba and Another -Court of Appeal for Uganda Civil Application No.6 of 1978 to support his argument that the applicants had shown sufficient reason and that each case must be decided on its own facts. Learned counsel contended that the applicants have shown that they could not serve the respondent with the two documents. Mr Babigumira referred to the accepted view of Rule 4, that discretion to extend time is based on the applicant showing sufficient reason which must relate to a failure to take a particular step in time. That the applicant must show that he is not guilty of dilatory conduct. Learned counsel cited a number of authorities including Mugo Vs. Luaji (1971) EA 481,

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Shanti Vs. Hinducha (supra). F. Nabatanzi Vs N. Binsobede - Civil Application No.6 of 1987 (unreported) and Clouds 10 Ltd. Vs. Standard Chartered Bank (U) Ltd. - Civil Application No.35 of 1992 (unreported).

It is not disputed that the notice of Appeal was lodged in time. It is not in dispute that the applicants applied for the proceedings in time. That application was in fact copied to the respondent. The only question is whether on the facts the applicants have shown sufficient reason for the failure to serve either of or both the two documents on the respondent. The affidavit of Tibaijuka and submission of Mr Babigumira are to the effect that efforts to serve the respondent were made after 7 days within which the service should have been made - this springs from the process servers affidavit sworn on 14/8/95 by Bahebya S. which is Annexure 'B' to Tibaijuka's affidavit in rebuttal. Actually Bahebya's affidavit relates to HCCS No.4 of 1995. The affidavit is only relevant to the extent that Bahebya was unable to trace the respondent on 12th and 13th August, 1995 for service for purposes of HCCS 4/95. Otherwise, I don't think that Bahebya's affidavit proves that as regards service of Notice of Appeal and the application for proceedings, the attempt to serve the respondent was made late.

T have studied all the authorities cited in this application. I have studied the affidavits and all annexures thereto. I am satisfied that the failure to serve the respondent was due to the fact that her whereabouts were unknown. The applicants were interested in advancing the intended appeal shown by the various steps which they took filing Notice of Appeal in time and the purpose of aborted application $7/96$ Advertisement for purpose of service would have been a good act but in my considered view failure to advertise does not on the facts of this case justify refusal of this application. I think that on the facts of this case, the provisions of Article 126(2)(e) of 1995 constitution are applicable so as to do justice to the parties. Paragraph (e) of clause (2) of Article 126 states that-

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"126(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles -

$(e)$ Substantive justice shall be administered without undue regard to technicalities."

I grant the application on the following condition:

- The notice of appeal and the application for proceedings $(a)$ should be served on the respondent or her advocates within five (5) days from the date hereof. - The applicants will pay the costs of this application. $(b)$

The parties have a right to refer my ruling to the court within seven (7) days from today.

Delivered at Mengo this ... day of . March, 1997.

J. W. N. TSEKOOKO,

OF THE SUPREME COURT

Kegistrar: Arrange with parties and deliver this rulp on date a greable toder the parties $\mathcal{E}$

Mr. Hamiet Nanazi for to kesp. Mr. Muha De represet of all templies Mr. Emma nanas cont dook.

Rulip de liveed $\varphi$ ( Re $48e$ $21/302$ ,