Centenary Rural Development Bank v Kamukama (Miscellaneous Application 546 of 2024) [2024] UGCommC 199 (15 July 2024)

5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA COMMERCIAL DIVISON MISCELLANEOUS APPLICATION NO. 0546 OF 2024 CENTENARY RURAL DEVELOPMENT BANK ::::::::::::::::::::::::: APPLICANT 10 VERSUS KAMUKAMA DAVIS ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT Before Hon. Lady Justice Harriet Grace Magala Ruling

Background

- 15 This is an *ex-parte* application that was brought under Order 5 rules 1,2,18 and 23; and Order 52 rule 6 of the Civil Procedure Rules and section 98 of the Civil Procedure Act. The Application is for orders that: - a) The time within which to serve the summons in HCCS 0117 of 2024 be extended; - 20 b) The service of summons and plaint be effected upon the Defendant through newspapers and at the court house; and - c) Costs of the application be provided for.

The affidavit in support of the application was deposed by Samuel Wagonia, an authorized court process server and an employee of M/s Kampala Associated

25 Advocates-the legal counsel for the Applicant.

The evidence of the Applicant is that:

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- 5 1. They have failed to reach the Defendant on his known cell phone numbers 0702-827-863 or 0782-827-863 and all calls made to these numbers have either gone unanswered or not returned; - 2. The Respondent being a member of parliament, the Applicant attempted to look for him at parliament and effect service or serve him through the Clerk - 10 of Parliament. These efforts proved futile when the security team at the main gate of parliament denied the process server access to the premises and the Clerk of Parliament also informed him that he was not authorized to receive service of court process in civil matters on behalf of members of parliament; - 15 3. The security team at the main entrance of parliament also tried to call the Respondent but calls to him went unanswered; - 4. As such, the Applicant has been unable to serve the Respondent with the summons and plaint within the 21 statutory days; and - 5. The Applicant seeks leave of court to extend the summons and serve the - 20 same along with the plaint onto the Respondent through substituted service.

Representation and Hearing

The Applicant was represented by Mr. Raymond Mwebesa of M/s Kampala Associated Advocates. Learned Counsel for the Applicant made oral submissions

25 and largely relied on the affidavit evidence of the Process Server.

Issues

1. Whether the summons should be extended and Respondent served through substituted service; and

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5 2. What other remedies are available to the Applicant?

Determination

1. Whether the summons should be extended and Respondent served through substituted service

From the affidavit in support of this Application it is very clear that the Applicant

- 10 has failed to serve the summons and plaint upon the Respondent as envisaged under Order 5 rule 10 of the Civil Procedure Rules. I am satisfied that all efforts to reach out to the Respondent through his last known telephone contacts and place of work to be served have proved futile. And as such, the summons has long expired and this has left the Applicant with no option but to seek leave of court to - 15 serve the Respondent through substituted service as well as extend the summons. The purpose of service of summons is to make the defendant aware (in this case the Respondent) of a pending suit against him and the purpose of substituted service is to make the defendant aware of the suit if he or she cannot be served personally. The right to a fair hearing under Article 28 of the - 20 Constitution

of the Republic of Uganda demands that both parties be heard.

Order 5 rule 18(1) of the Civil Procedure Rules as amended states that:

*"Where the Court is satisfied that for any reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served* 25 *by affixing a copy of it in some conspicuous place in the court house, and also upon some conspicuous part of the house if any, in which the*

5 *defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Substituted service under an order of court shall be effective as if it had been made on the defendant personally".*

For the reasons given above, court hereby allows this application in the following 10 terms:

- a) The summons in HCCS 0117 of 2024 is hereby renewed; - b) The Respondent shall be served through substituted service by advertising the summons and plaint in a newspaper of wide and daily circulation; and also advertise the plaint and summons on the notice board of the court 15 house.

2. What other remedies are available to the Applicant?

Section 27 (1) of the Civil Procedure Act states that:

*"subject to such conditions and limitations as may be prescribed, and to the* 20 *provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid".*

5 Costs shall always follow the event and a successful party should not be deprived of them, unless court for good cause orders otherwise. The costs of this application shall abide the outcome of the main cause.

Signed and dated at Kampala this 15th day of July 2024.

Harriet Grace MAGALA

Judge

Delivered online (ECCMIS) this 16th day of July 2024.