Wayabire v Mubbala (Miscellaneous Application 45 of 2024) [2025] UGHC 257 (5 April 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE **MISCELLANEOUS APPLICATION NO. 45 OF 2024** (ARISING FROM CIVIL SUIT NO. 011 OF 2024)

WAYABIRE GEOFFREY:::::::::::::::::::::::::::::::::::

#### VERSUS

MUBBALA KINTU SAMUKU BALAAM ::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

## 1. Introduction:

- 2. This is an omnibus application brought by the Applicant by way of a notice of motion under Section 33 of the Judicature Act, [now Section 37 of the Judicature Act, Cap.16], S.98 of the Civil Procedure Act, Cap. 282, and Order 5 Rule 1 of the Civil Procedure Rules SI 71-1, seeking for orders that- Civil Suit No. 011 of 2024 be struck out or dismissed without notice, the interim order in Miscellaneous Application No. 008 of 2024 be set aside, and for Costs of the application. - 3. The application was premised on the grounds set out in the supporting affidavit of **IMAN ALI**, briefly the grounds are that- - a) The Respondent filed civil suit No. 011 of 2024 together with two Miscellaneous applications whose summons were issued by the Deputy Registrar on the 12th day of February, 2024; - b) On the 1st day of March, 2024, the Respondent's counsel served the Applicant's Advocates with Miscellaneous Application No. 007 of 2024, an application for temporary injunction but the summons to file a defence were never served on to the Applicant;

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$\mathcal{L}(\mathcal{M})$

- The Applicant's Lawyers wrote to the Respondent demanding to be served $c)$ with the summons to file a defence and the Plaint vide Civil Suit No, 011 of 2024, but their letter was ignored; - d) Since the summons in Civil Suit No. 011 of 2024 were issued and sealed by court on the 12th day of February, 2024, it was meant to expire after 21 days on 4th day of March, 2024; - e) That the Respondent's failure to serve the Applicant with summons to file a defence was intended to fraudulently secure orders of court in Civil Suit No. 011 of 2024; - The Respondent's suit is a waste of court's time, baseless and an abuse of f) the court process; - g) The Respondent has a pending appeal in the Court of Appeal vide No. 175 of 2017 were the Respondent is the Appellant and the same has been scheduled for hearing; - h) The Respondent applied for a renewal of summons by way of writing a letter instead of a formal application; - The noncompliance with the requirement for renewal of the summons to $\mathbf{i}$ file a defence is a fundamental defect rather than a mere technicality; - j) It is equitable that court grants this application. - 4. The application was opposed through an affidavit in reply deponed by the Respondent MUBBALA KINTU SAMUKU BALAAM, and the grounds are briefly that- - a) The Respondent is the dully elected Ikumbaania of Obwa Ikumbaania Bwa Bugwere cultural institution; - b) The Respondent's legitimacy as cultural leader of Obwa Ikumbaania Bwa Bugwere cultural institution was confirmed by the High court of Uganda at Mbale in Miscellaneous Cause No. 43 of 2021; Mubbala Balam Pagholi vs Mbulango Robert Mutono; - c) The Respondent filed Civil Suit No. 011 of 2024 to preserve his rights as a cultural leader of Obwa Ikumbaania Bwa Bugwere cultural institution

upon illegitimate threats from the Applicant and other people to delegitimize his leadership;

- d) In the same vein, the Respondent filed Miscellaneous Applications Nos. 07 & 08 of 2024 for temporary injunction and interim order; - e) On $12/02/2024$ , this court issued summons to file a defence together with the Notice of motion in Miscellaneous Application No. 08 of 2024; - f) On $15/02/2024$ , service of the court process was duly affected upon the Applicant through an adult member of his family upon his instructions and consent; - g) The Respondent however declined to appear for hearing of the interim order, and orders were lawfully issued against him; - h) The Applicant's counsel letter demanding for service of summons is full of falsehoods and only intended to mislead court; - On 7/03/2024, the Respondent through his Advocates applied for $i$ issuance of fresh summons which court granted, and the same were effected on the Applicant's counsel on $22/03/2024$ ; - j) As a result, the Applicant filed a written statement of Defence, and the matter now is pending issuance of summons for directions; - k) The Respondent has a very good case on the merits of the main suit; - 1) The Applicants' application is brought in bad faith with the view of preventing the conclusive determination of the matters in controversy.

# 5. Background

- 6. The background of this application is that the Respondent filed a civil suit before this court vide No.011 of 2024 against the Applicant and two others. - The said suit was accompanied by the two applications for temporary injunction and interim order. The Applicant argues in the present case that he was not served with the summons to file a defence, and for that reason, civil suit No. 11 of 2024 is a nullity, and the same ought to be struck out without notice. - 7. The applicant's case is also premised on the fact that the Respondent followed a wrong procedure in applying for renewal of expired summons.

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That he ought to have moved court through a formal application rather than writing an ordinary letter to court.

## 8. Legal Representation

- 9. At the hearing of this application the Applicant was represented by Mr. Tonny Okwenyi of M/s Kob Advocates & Solicitors while the Respondent was represented by Mr. Barnabas Nangulu holding brief for Mr. Eddie Nangulu of M/s Nangulu & Mugoda Advocates. - 10. The parties filed written submissions which I have considered in determination of this application.

## 11. Analysis of court

- 12. Considerably, this application presents three issues for determination by this court, that is; - a) Whether the Applicant makes a proper case for striking out Civil Suit No. 011 of 2024 without notice? - b) Whether the interim order issued by this court vide miscellaneous application No. 08 of 2025 can be set aside? - *c) What remedies are available to the parties?* - 13. Issue One: Whether the Applicant makes a proper case for striking out Civil Suit No. 011 of 2024? - 14. The Applicant's case is that the Respondent filed Civil Suit No.011 of 2024 against him and others, but the applicant did not serve him with the summons to file a defence within the stipulated time under the law. The Applicant expounds his argument by stating that the summons in Civil Suit No.011 of 2024 was issued by court on 12th day of February, 2024, and the same were supposed to expire after 21 days which was 4th day of March, 2024. The Applicant stresses that however, the said summons was not served on him until their expiry. - 15. The Applicant also argues that upon the expiry of summons issued by court in Civil Suit No.011 of 2024, the Respondent followed a wrong procedure in applying for renewal of summons. That the Applicant ought to have moved court through a formal application rather than writing a

mere letter to court. As a result, the Applicant submits that Civil Suit No.011 of 2024 is a nullity, and the same ought to be struck out without notice to the Respondent.

- 16. In reply, the Respondent states under paragraph 12 of his affidavit in reply that the summons to file a defence issued by this court on $12/02/2024$ together with the notice of motion in Miscellaneous Application No. 08 of 2024 were on the 15th day of February, 2024 with the consent of the Applicant duly served on him through an adult member of his family. To buttress his case, the Respondent attached the copy of the affidavit of service deponed by a one Okiror Noel, a clerk and process server attached to the Respondent's law firm. - 17. Service of summons is a legal procedure clearly expounded under Order 5 of the Civil Procedure Rules. O.5 R 2 of the CPR provides that-

"Where summons have been issued under subrule (1) of this rule service of the summons shall be effected within twenty **one days** from the date of issue; 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."

18. In the case of Akankwatsa V. United Bank of Africa (Miscellaneous Application 1233 of 2017) [2018] UGCommC 31, it was held that-

> "When the summons are issued, the Plaintiff or whoever applied for them, must serve the other party within 21 days. That under Order 5 $R$ 1(3) (b) if the application for extension of time is not filed within the 15 days pursuant to $0.5$ r. 1(2), the suit shall be dismissed without notice."

19. It seems to me from the averments of both parties in their respective affidavits that this court issued the summons to file a defence in Civil Suit No.011 of 2024 on $12/02/2024$ , and the same was supposed to be served on to the Applicant and the other parties involved within 21 days from the date they were issued by court.

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- 20. The Applicant denies being served with the summons in Civil Suit No.011 of 2024 within the required time under the law. On the other hand, the Respondent relies on the affidavit of service deponed by a one Okiror Noel, a clerk and process server attached to the Respondent's Advocates' law firm which is attached to the Respondent's affidavit in reply opposing this application to prove that the Applicant was duly served with the said summons. - 21. I have looked at the affidavit of service dated 20th/02/2024 attached to the Respondent's affidavit in reply. In this affidavit, the deponent therein who identifies himself as a clerk and process server attached to the Respondent's Advocates' law firm avers that he received the notice of motion and summons issued by this court on $12/2/2024$ , and on 15/2/2024, he went to the Applicant's home in Budaka which was personally known to him, but did not find the Applicant at home, he then contacted him on phone, and the Applicant instructed him to leave the court documents with a person called Mugisha, the security guard at the Applicant's home. - 22. What I make of those facts is that, the Applicant was not personally served with the summons to file a defence in Civil Suit No. 011 of 2024. The law requires that service of summons must be made to the defendant in person or his/her appointed agent.

23. Order 5 r.10 of the Civil Procedure Rules SI 71-1 provides that-

"Wherever it is practicable, service shall be made on the defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient."

24. What is obvious as per the affidavit of service by a one Okiror Noel, is that the Applicant was not served with summons in person, but was allegedly served with the said summons through a one [Mugisha] the security guard at the Applicant's home.

6 | Page - 25. The fundamental question now is whether [Mugisha], the security guard at the Applicant's home was a recognised agent with the authority to receive service of court process on behalf of the Applicant? - 26. In the case of Erukana Omuchilo V. Ayub Mudiiwa [1966] EA 229 cited with approval in the case of Dr. B. B Byarugaba v Kantarama (Civil Miscellaneous Application 229 of 2019) [2020] UGHC 216, the court held that-

"Service on the defendant's agent is effective service only if the agent is empowered to accept service."

27. Order 3 r.2 of Civil Procedure Rules (supra) clearly spells out who a recognized agent is. It thus provides as follows-

> "The recognized agents of parties by whom such appearances," applications and acts may be made or done are—

> (a) persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on *behalf of parties; and*

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the *court* within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."

- 28. The security guard (Mugisha) who is shown in the affidavit of service to have received the summons on behalf of the Applicant at the Applicant's home does not seem to follow in the ambit of the description of the recognized agents under the law to have been an authorized agent to receive service on behalf of the Applicant. - 29. This leads me to a finding that the Applicant was not duly or effectively served with the summons in Civil Suit No. 011 of 2024, neither was he served with the same through his recognised agent as per authorities

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highlighted in the foregoing. Therefore, there was no effective service of the original summons on the Applicant.

- 30. Secondly, the affidavit of service by Okiror Noel appears under a title of a Miscellaneous Application No. 08 of 2024 instead of the main suit number which is the subject of this application. It is also important to note that the said affidavit of service is not accompanied by a return of service or the receiving copy of the summons on which the alleged recipient of the summons acknowledged receipt of service on behalf of the Applicant. This all leaves a lot to be desired leading to only one conclusion that there was no effective service of the summons on the Applicant. - 31. However, a case is made for the Respondent that on realizing that the Applicant failed to appear in court, the Respondent's counsel wrote to court requesting court to issue fresh summons to be served on the Applicant. That court issued fresh summons which were on 22nd day of March, 2024 served on the Applicant. A copy of the return of service of the fresh summons received by the Applicant's Advocates, Kob Advocates was annexed as supporting evidence on the Respondent's pleadings. I have had an opportunity of looking at it. - 32. The Applicant acknowledges that the Respondent sought for fresh summons from court, but faults the procedure that was followed by the Respondent. It is submitted for the Applicant that the Respondent ought to have filed a formal application instead of an ordinary letter. That it was fatal for the Respondent to move court through an ordinary letter, and for that reason, this court ought to disregard the fresh summons and hold that no valid summons have ever been served on the Applicant. - 33. It is settled law that court can extend the time for service of summons upon an application made within fifteen days from the date of expiry of the 21 days within which the summons are supposed to be effected on the adverse party. - 34. Order 5 rule 1(2) of the CPR (supra), provides that-

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

35. Where no application is made for extension of time for service of summons, court is enjoined to dismiss the suit without notice. Order.5 R 3 of the CPR (supra), provides that-

"*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.*"

- 36. I have noted in the foregoing that the original summons in Civil Suit No. 11 of 2024 was not effectively served on the Applicant. I believe it was on the basis of realizing this procedural mistake that the Respondent's counsel applied for fresh summons. It is imperative to note that the Respondent took the step of applying for renewal of summons by way of a letter instead of filing a formal application as is provided under the law. - 37. The procedure for moving court under Order 5 of the Civil Procedure Rules is provided for under rule 32 of the same order which provides that-"applications under Order 5 shall be by summons in chambers". - 38. However, what the law envisages in the manner explained above is the application for extension of time to serve the summons which have not been effected on the opposite party within 21 days from the date of their issuance. I have not found in any of our statutory legislations the latitude for a party to apply for renewal of expired summons as did by the Respondent in the present case.

- 39. It therefore follows that both the procedure and the nature of application filed by the Respondent to renew the expired summons is alien to our civil jurisprudence. I would therefore agree with the applicant's counsel's argument that the Respondent failed to comply with the mandatory requirements of law for service of summons. - 40. The fate of the suit where there has not been effective service of summons, and where no application for extension of time to serve the summons has been made within fifteen days after the expiration of the twenty-one days, is that such a suit suffers a dismissal without notice. - 41. Notwithstanding all the above, I should emphasize that court is enjoined with power to enlarge time where a limited time has been fixed for doing any act. - 42. Section 96 of the Civil Procedure Act Cap. 282 read *para materia* with Order 51 Rule 3 of the Civil Procedure Rules provides that-

"*Where a limited time has been fixed for doing any act or taking any* proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered *although the application for it is not made until after the expiration of* the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

43. Order 51 of the CPR (supra) is silent about the procedure to be followed in the application for enlargement of time. This brings into play the provisions of Order 52 Rule of the CPR which provides that-

> "All applications to the court, except where otherwise expressly" provided for under these Rules, shall be by motion and shall be heard in open court."

- 44. My appreciation of the above provision of the law is that even in the circumstances where court has to enlarge time for doing a particular act, court has to be formally moved through an application otherwise court risks descending into the arena. - 45. In the view of the above analysis, I find that summons in Civil Suit No.011 of 2024 was not duly and effectively served on the Applicant, and the procedure followed by the Respondent to extend service of the said summons was irregular. - 46. Issue No.1 is answered in the affirmative. - 47. Having resolved issue one in the affirmative, the second issue is rendered a moot, and I would disregard it for that reason. - 48. In the premises, Civil Suit No.011 of 2024 is hereby dismissed in accordance with Order 5 Rule 1(3) of the Civil Procedure Rules - 49. Costs are awarded to the Applicant.

I so order.

**LUBEGA FAROUO** Ag. JUDGE

Ruling delivered via emails of the Advocates of parties on this 5th day of April, 2025