Twaiman v Abdul & Others (Miscellaneous Application 39 of 2022) [2024] UGHC 616 (5 July 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA MISCELLANEOUS APPLICATION NO.39 0F 2022 (ARISING FROM CIVIL SUIT NO.100 OF 2018) <table> TWAIMAN WAHOOLI ::::::::::::::::::::::::::::::::::: VERSUS

ABDUL KARIM BASHIR SAID AND OTHERS:::::::::::::::::::::::::::::::::::: BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI RULING

Introduction

This is a ruling on a preliminary point of law raised by Counsel for the Respondent 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 in court and endorsed by the Registrar on 9^th March 2022 and 24^th March 2022 respectively, the Respondents were only served on 13^th July 2022. 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 15^th of April, 2022.

Counsel for the Applicant argued that his learned colleague did not appreciate the law. This is an Application arising out of a suit and as such is not governed under order 5 of the Civil Procedure Rules (CPR) but is instead governed under Order 12 of the CPR. He further submitted that whereas it is true that the Application was endorsed on 24^th March 2022, the file went missing on the 5^th May 2022 and was traced sometime in July 2022 and as such the Applicant could not serve the Application within the expected time.

Representation

Were David Mukoche from M/S Were Associated & Co. Advocates represented the Applicant while Sharif Semaganda and Phoebe Tumwebaze represented the Respondent.

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Determination of the Preliminary point of law

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 extended on application to the court, made within fifteen days after the expiration of the twentyone 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

(c) the application for extension of time has been dismissed, the suit shall be dismissed without notice."

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 him 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. Therefore, the argument by Counsel for the Applicant that the Notice of Motion does not follow the rules of service set out in order 5 of the Civil Procedure Rules is grossly misconceived.

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, Counsel for the Applicant conceded that the Application was filed and sealed on the 9^th of March 2022 and the 24^th of March 2022 respectively. This means that the Applicant had to serve the endorsed Application on the Respondent by 14^th April 2022. Counsel also conceded that he failed to serve the Application within the stipulated time because the file got misplaced and they could not access the endorsed Notice of Motion in order to serve it on the Respondents. Upon perusal of the suit file, I noticed a letter from M/S Were Associated Advocates (counsel for the Applicant) dated 08/07/2022 addressed to this Court wherein the Applicant's Counsel informed the court that the summons issued in respect to this Application had expired due to the unfortunate misplacement of the suit file which was in the custody of the court. In the same letter, he also prayed that the court be pleased to issue fresh summons in respect to this Application and grant a new hearing date. A hearing notice/summons dated 12^th July 2022 was issued by the court in respect to this suit.

Therefore, since fresh summons were issued with respect to this matter, the twenty-one days for service started running from the new date of issuance of summons (12/07/2022). With this Page 3 of 4

in mind, the Respondent had to therefore be served by 2^nd August, 2022. It is not a disputed fact that the Respondent was served on the 12^th of July 2022 on the same date after the fresh summons were issued. This means that the Respondent was served in time.

In the circumstances, the preliminary point of law is hereby overruled and shall therefore move on to hear the Application on its merits.

I so order

$\tilde{\mathcal{L}}$

....................................... FARIDAH SHAMILAH BUKIRWA NTAMBI JUDGE

Delivered on this 5th day of July, 2024