Orishaba v Ngobi (Miscellaneous Application 49 of 2023) [2024] UGHC 621 (29 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

# **MISCELLANEOUS APPLICATION NO.49 OF 2023**

# (ARISING FROM MISCELLANEOUS CAUSE NO.24 OF 2023)

OLIVIA ORISHABA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

# NGOBI ANTHONY::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

### **RULING**

This Application was brought under Sections 82, 98 of the Civil Procedure Act, Cap 71 and Orders 46 & 52, rules 1 & 3 of the Civil Procedure Rules seeking orders that the ruling and orders of this court in Miscellaneous Cause No.24 of 2022 be reviewed, discharged, varied and set aside; a permanent stay of execution of the Orders in Miscellaneous Cause No. 24 of 2022 be issued and costs for this Application be provided for.

The grounds supporting this Application were set out in the Affidavit in Support of the Application deposed by Olivia Orishaba and are briefly stated below;

- 1. That the Applicant has discovered an error apparent on the face of the record for which the Decree cannot stand. - 2. There are important factors unknown to the court which could not be produced at the time of hearing and ruling, and they ought to be put into consideration. - 3. That the Applicant has sufficient reasons that warrant the grant of review of the ruling and orders of this court.

This Application was opposed by Ngobi Anthony (the Respondent) through his affidavit in reply stating that this Application is misconceived, incompetent, bad in law and preliminary objection shall be raised at the earliest opportunity for dismissal in so far as that Miscellaneous Application No.49 of 2023 was not served on the Respondent as stipulated by law and that the instant Application does not satisfy or meet the test for a review of the ruling in Misc. Cause No.24 of 2022.

### **Representation**

The Applicants were represented by M/S Bloom Advocates while the Respondents were represented by M/S Isabirye & Co. Advocates.

#### **Determination of the suit**

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The court shall adopt the issues raised by the parties;

- 1. Whether the Applicant is an aggrieved person within the meaning of Section 82 of the Civil Procedure Act Cap 71. - 2. Whether the Application meets the criteria for review.

### **Preliminaries**

Counsel for the Respondent raised a preliminary point of law that this Application is incompetent as it was served out of time and the same should be dismissed with costs. He argued that whereas this Application was filed and sealed by the Registrar on 15th March 2023, the Respondents were served on 1st June 2023. This was way outside the time stipulated under Order 5 r.1(2) of the CPR which requires service to be effected on the opposite party within 21 days from the date the summons is issued. The 21 days within which the instant application was supposed to be served upon the Respondent expired on the 5th of April, 2023. He relied on *Fredrick James Jjunju* & Anor V Madhivani Group & Another Misc. Application No. 688 of 2015, M. M Sheik Dawood V Keshwala &sons Civil Appeal No.14 of 2009, Michael Mulo Mulaggusi V Peter Katabalo, Misc. Appeal No.006 of 2016.

Counsel for the Applicant submitted that the court should take judicial notice of Miscellaneous Application No.93 of 2023 arising from Misc. Application No.49 of 2023, wherein the court through proceedings before Deputy Registrar of Jinja His Worship Fred Waninda validated Miscellaneous Application No.49 of 2023 through Miscellaneous Application No.93 of 2023. He relied on Arim Felix Clive Vs Stanbic Bank (U) Ltd Sc Civil Appeal No.3 of 2015.

I have taken into consideration the submissions of both counsel on this preliminary point of law and shall move to determine it. The law governing the service of summons to a defendant is enshrined in Order 5 of the Civil Procedure Rules which states;

"ORDER V—ISSUE AND SERVICE OF SUMMONS.

#### 1. Summons.

(1) When a suit has been duly instituted a summons may be issued to the defendant—

(a) ordering him or her to file a defence within a time to be specified in the summons; or

(b) ordering him or her to appear and answer the claim on a day to be specified in the summons.

(2) Service of summons issued under subrule (1) of this rule shall be effected within twenty-one days from the date of issue; except that the time may be

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extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension.

(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*

Order 5 Rule 1 of the Civil Procedure Rules is to the effect that every summons issued by the court must be served within twenty-one days from the date of issue. However, should the Applicant fail to serve the summons within the twenty-one days, the law allows them fifteen days within which to make an Application to extend time within which to serve the summons. Rule 3 emphasizes that where summons have been issued and not served within twenty-one days and no application for extension of the summons has been made or the application for extension is dismissed, the suit stands dismissed without notice.

Indeed, it has been previously held by the Supreme Court in Kanyabwera Vs. Tumwebaze (2005) EA 86 quoted with authority in Orient Bank Ltd Vs. AVI Enterprises HCCA 2/2013 that service of hearing notices should follow the provisions of Order 5 CPR. Similarly, in Stop and See (u) Ltd Vs. Tropical Africa Bank Ltd, Misc. Application No. 5 333 of 2010, Madrama J (as he then was) guided that Miscellaneous Applications are bound by the same timelines as provided for under order 5 of the Civil Procedure Rules.

A Notice of Motion is in by itself a summon of a party/parties to appear before the Court for a hearing. Unlike a Plaint that requires separate summons, a Notice of Motion serves the purpose of a pleading on the part of the Applicant and a summon on the part of the court which necessitates it being endorsed by a Registrar of the court.

By implication, this means that upon filing and sealing of the Application (Notice of Motion), the Applicant shall have to serve the Application on the Respondents within 21 days. Order 5 rules 2 and 3 seem to post a clear position that once summons expire before service and there is no application for extension within 15 days or the application 15 for extension is dismissed, the suit stands dismissed without notice. This would translate into a position that there would be no suit to talk about at law.

In the instant case, this Application was filed and sealed by the Registrar on 15th March 2023 and the Respondents were served on 1st June 2023 which was way outside the time stipulated under Order 5 $r.1(2)$ of the CPR. According to the timelines, the Notice of Motion was supposed to be served on the Respondent on the

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5th of April, 2023. The time within which to apply for an extension time within which to serve lapsed on 21st April 2023.

The Applicants claim that they instituted Misc. Application No.93 wherein they sought among other orders an order for an extension of time within which to serve the Misc. Application No. 49 to the Respondents. They further claim that the court through proceedings before Deputy Registrar of Jinja His Worship Fred Waninda validated Miscellaneous Application No.49 of 2023 through Miscellaneous Application No.93 of 2023.

I have reservations about the argument made by counsel for the Applicant. Firstly, counsel for the Applicant has made an assertion that this Court validated Miscellaneous Application No.49 of 2023 through Miscellaneous Application No. 93 of 2023. Counsel for the Applicant however has not provided the court with any evidence to back his assertion. Section 101 of the Evidence Act clearly states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts that he or she asserts must prove that those facts exist. See Mitti Vs Ssewagude & 3 Ors (Civil Suit No.449 of 2016) [2019] UGHCLD 52 (12 July 2019); Sebuliba versus Co-operative Bank Ltd [1982] HCB 129. Counsel for the Applicant should have been professionally responsible to produce at the very least, the court ruling or order issued in respect to Miscellaneous Application No. 93 of 2023. Such assertion intends to prompt the court to delve into the litigation arena instead of being an adjudicator.

On the aspect of this court taking judicial notice of Misc. Application No.93 of 2023, I will note that under Section 56 of the Evidence Act, pleadings are not one of the documents that the courts are required to take judicial notice of. Rather under Section 56 (1) (e), the court shall take judicial notice of all seals of all of the courts of Uganda duly established. The court will therefore be in position to take judicial notice of any document bearing a seal of an established Court of Uganda. In this case therefore, the court would be more inclined to take judicial notice of a ruling or court order bearing a seal of court if it is presented before it.

Finally, Section 56 (3) of the Evidence Act stipulates that if the court is called upon by any person to take judicial notice of any fact, it may refuse to do so until that person produces any such book or document as it may consider necessary to enable it to do so. The discretion to take judicial notice of a fact is given the court is not an automatic right vested in the party alleging the fact.

That being the case, this Court shall not take judicial notice of the purported ruling by His Worship Fred Waninda in Misc. Application No. 93 of 2023 because the court has not been presented with evidence of the said ruling. Furthermore, the court has not found miscellaneous Application No.93 of 2023 on its record. Consequently, it shall be construed that the Applicant failed to prove to the court the existence of the said ruling.

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As such, I am inclined to agree with Counsel for the Respondent that this Application was served on the Respondent out of time and no application was made to extend the time within which to serve the Respondent. In such circumstances, the court has no option but to dismiss the Application. Justice Madrama in Alex Mulyabintu Versus Case WesternReserve University (Ohio) and Makerere University Civil Appeal No.190 of 2013 held that a suit dismissed for want of summons under Order 5 rule 1 (3) of the CPR is not dismissed at the discretion of the Judicial officer and that the Judicial officer dismisses the suit as directed by the mandatory stipulation of the rules. Also See Michael Mulo Mulaggusi V Peter Katabalo supra, Kevina Nantume V Administrator General & Ors HC Mis. Appeal No. 1448 of 2018.

In the circumstances, I uphold the Preliminary Point of law and shall not therefore move on to determine the Application on its merits.

I therefore order as follows;

1. Miscellaneous Application No. 049 is dismissed due to the Applicant's failure to serve the Application on the Respondent within the precepts of Order 5 of the Civil Procedure Rules.

2. Costs of Application are awarded to Respondent.

I so order

FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE**

Delivered on 29th May 2024