Wekoye v Tara & 3 Others (Miscellaneous Application 749 of 2023) [2023] UGCommC 270 (21 November 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) **MISCELLANEOUS APPLICATION NO 749 OF 2023 ARISING FROM CIVIL SUIT NO 616 OF 2022**

# **WEKOYE MICHEAL TIMOTHY::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

## 1. TARA KATHRYN COUGHLIN

## 2. STANDARD CHARTERED BANK UGANDA LTD

3. SOC LTD

# **4. THE CONTINENTAL INSURANCE COMPANY ::::::::::::RESPONDENT**

## **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

#### **RULING**

This is an Application for setting aside a dismissal order of civil suit no. 616 of 2022 and reinstatement of the same. When the Application came up for hearing on the 9th of November 2023 and Counsel for the 2nd Respondent raised a preliminary objection that the said Application was never served on them. Counsel submitted that they recently found out about the Application from ECCMIS and quickly filed a reply to the same.

Counsel for the 2nd Respondent submitted that the said Application was endorsed by the Court on the 5th of June 2023 and Order 5 Rule 2 of the CPR provides for the service of summons within 21 days from the date of issue and thus the same should have been served by 26th June 2023. The Applicant did not apply for an extension of time and the penalty for service out of the period is dismissal without notice. Counsel cited the Supreme Court decision of Edison Kanyabwera v Pastori Tumwebaze where the Court held that summons must be served on the defendant or his agent or

other person on his behalf and the serving officer must annex an affidavit of service stating the time and manner in which summons were served.

Counsel for the Applicant submitted that Order 5 Rule 10 of the CPR provides for personal service where it is practical and the service of court process electronically has been recognized by the Rules Committee in The Constitution (Integration of ICT into the Adjudication process for Courts of Judicature) (Practice Direction) No. 2019 and the same was emphasized in Male Mabirizi v Attorney General Misc **Application No. 843/2021** where it was noted that parties may as much as possible use technology to expedite the proceedings and make them more efficient and effective. Counsel further submitted that the Application was filed on the 29th of May 2023 and indeed physical service was not effected however uploading it on ECCMIS was as good as physical service having been effected.

In rejoinder, Counsel for the 2nd Respondent submitted that the practice directions quoted by the Applicant cannot be interpreted to have changed the CPR particularly Order 5 of the CPR and the case of Male Mabirizi(supra) was not in respect of service of summons electronically but rather contempt of Court proceedings.

The Applicant was represented by M/s Loi Advocates and the 2nd Respondent by M/s Ligomarc Advocates.

### **RULING**

I have addressed my mind to the submissions of counsel for the Applicant and 2nd Respondent in this matter and will address the Issues as stated below.

# 1. Whether the 2nd Respondent was served

Order 5 rule 1(2) of the CPR provides that:

"Service of summons issued under sub rule 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."

The ECCMIS record of this Court indicates that the instant Application was filed by the Applicant on the 25th of May 2023. The Application was signed by the Registrar of this Court on the 5th of June 2023 and the matter was fixed for hearing on the 3rd of October 2023. The hearing date was adjourned because the 1st and 2nd Respondents were not present in Court. I believe their non- attendance was due to non-service. During submissions, Counsel for the Applicant admitted that no

$\mathsf{2}$

physical service was effected on the 2nd Respondent and I do not see any Application for extension of time on the Court record.

It is therefore not in dispute that the Notice of Motion in the instant Application was not served on the 2nd Respondent within the stipulated time as required by the Rules; and order 5 rule 3 of the cPR provides that where summons have been issued under the rules and service is not effected within twenty-one days from the date of issue and no Application for extension of time is made, the suit shall be dismissed without notice.

However, it should be noted that with the court electronically moving to the use of ECCMIS for purposes of filing pleadings and any communication thereto; and also taking into account that this Application arises out of a main suit that was already filed on ECCMIS, it can be said that the parties were already linked through the ECCMIS system and would ordinarily access any new information added thereto relating to the case.

### The question now before me is whether uploading the present Application on ECCMIS amounts to effective service on the 2nd Respondent.

The Applicant cited the case of Male Mabirizi(supra) and on perusal of the said case, I am inclined to agree with counsel for the 2nd Respondent that the case relates to contempt of court and not service of summons.

### In the case of Geoffrey Gatete and Anor v william Kyobe sccA No 7 of 2005 Mulenga JSC addressed the issue of effective service in these terms;

"The Oxford Advanced Learners' Dictionary defines the word "effective" to mean " having the desired effect, producing the intended result". In that context, effective service of summons means service of summons that produces the desired or intended result. Conversely, non-effective service of summons means seryice that does not produce such a result. There can be no doubt that the desired and intended result of sertting summons on the defendant in a civil suit is to make the defendant aware of the suit brought against him so that he has the opportunity to respond to it by either defending the suit or admitting liability and submitting to judgment. "

The 2nd Respondent was absent during the first hearing date on the 3'd of october 2023. on perusal ofthe record, the 2nd Respondent filed their reply to the Application on the 3'd of November 2023 which was after the first hearing date had passed. This clearly shows that the uploading of the Application on ECCMIS did not produce the

3 \,s

desired result of making the 2nd Respondent aware of the suit. In the circumstances stated above, I find that service was not effectively made.

The Preliminary Objection is therefore allowed and the Application is dismissed with costs to the $2^{nd}$ Respondent.

Ambitative

HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................