THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 614 OF 2012
ARISING FROM CIVIL SUIT NO 455 OF 2012
KAKOOZA ABDULLAH}............................................................... APPLICANT
STANBIC BANK (U) LTD} ........................................................RESPONDENT
BEFORE HONOURABLE JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicants application is for a temporary injunction to issue against the respondent, its servants, and/or agents restraining them from auctioning off, advertising, foreclosing or in any manner disposing of some plots of land until the final disposal of the suit and for costs of the application to be provided for.
The matter came for hearing on 13 February 2013. At the hearing the applicant was represented by Godfrey Kibirige while the respondent was represented by John Fisher Kanyemibwa. Before the hearing could commence counsel for the respondent objected to the application on the ground that the application had not been served on the respondent and ought to be struck out for want of service. The gist of the objection and the grounds thereof are contained in the affidavit in reply sworn by one Moses Olico the Business Solutions and Recoveries Officer of the respondent. He avers that the application was issued by the registrar on 8 October 2012 but by the time of the hearing of this application, the application had not been served on the respondent. The affidavit in reply was filed on court record on 30th of November 2012. Counsel submitted that the application was supposed to be served within 15 days. He contended that the applicants counsel admits that service was not made on the respondent. Service ought to have been effected by 23 October 2012 but by the time of making the submissions; no service had yet been made on the respondent. He prayed that the application is struck out.
In reply the respondents counsel submitted that the applicant had waived its right to object on the basis of the affidavit in reply (The affidavit attaches a photocopy of the application). If I understood him correctly, his submission is that the affidavit only seeks to have the application dismissed on grounds raised and not on preliminary points. There was no likelihood of injury to be suffered by the respondent and he prayed that the objection is dismissed.
In rejoinder John Fisher submitted that under paragraph 4 of the affidavit in reply, it is indicated that the application is an abuse of court process. Under order 49 rules 2 service shall be made in the manner provided for the service of summons. He submitted that service had to be made on the respondent within 21 days of the issuance of the process. He further made reference to order 12 rules 3 of the Civil Procedure Rules which requires service to be made on the respondent within 15 days of the issuance of the application by the court.
I have given due consideration to the objection of the respondents counsel and the reply thereto of the applicant’s counsel. The question of whether summonses or notices of motion or chamber summons have been served is a preliminary question that has to be decided before the court can hear the application if it is not struck out for want of service.
The affidavit in reply of the respondent and sworn by Moses Olico attaches a copy of the chamber summons which is the application for a temporary injunction and supporting affidavit as “SBU1”. He further avers that his advocates have shown him a copy of the chamber summons application for a temporary injunction and supporting affidavit. He further avers that the application was issued on 8 October 2012 but up to the time of deposing to the affidavit, the respondent had not been served with the application.
Furthermore in paragraph 4 of the affidavit in reply he disposes from information given to him by his lawyers that the application is an abuse of court process. Thereafter the rest of the averments deal with the merits of the application for a temporary injunction.
A similar objection was considered by Honourable Lady Justice Hellen Obura in High Court civil suit number 353 of 2009 between Western Uganda Cotton Company Limited versus Dr George Asaba and three others. In that case an objection was raised by the plaintiff’s counsel that the counterclaim filed against the plaintiff and other Counter defendants was not duly served in accordance with the law and ought to be dismissed with costs. He further stated that he accessed a copy from the court record and filed a response thereto after he learnt about it during the mediation process. The court found that the time within which a defendant should file a defence is 15 days after service of summons. It is the duty of the counterclaimant to serve the written statement of defence together with the counterclaim on the plaintiff. Quoting from Mulla on the Code of Civil Procedure volume 2 and 17 edition at page 231 that the object of service of summons in whatever way is to enable the defendant be informed of the institution of the suit in due time before the date fixed for the hearing. The honourable court held that the plaintiff had not in his submission pointed out any prejudice or injustice that would be occasioned to his client by the defendant's omission to serve. Though a preliminary objection was raised at the very earliest opportunity no injustice had been occasioned to the plaintiff and the omission to serve could be treated as an irregularity which could be cured under article 126 (2) (e) of the Constitution of the Republic of Uganda. The learned judge held that the object of service in the case was achieved by counsel for the plaintiff’s action of helping himself to the counterclaim on the record and overruled the preliminary objection relating to service on the plaintiff of the counterclaim. In the above case the court relied on the Supreme Court judgement in Mukasa Anthony Harris versus Dr Bayiga Michael Philip Lulume Election Petition Appeal Number 18 of 2007. Honourable Justice Tsekooko JSC delivered the lead judgement and the rest of the Justices of the Supreme Court concurred. In that appeal one of the grounds was that the learned justices of appeal erred in law and fact in failing to find that the petition was a nullity as there was non-service of the notice and the petition. The honourable judge concluded that the appellant had helped himself to a copy of the petition probably within the prescribed time. He had pre-empted the service and did in effect enter appearance unconditionally. He held that there was no material upon which the court could conclusively say that the appellant did not get the petition within the prescribed time of seven days and that article 126 (2) (e) of the Constitution would be applied.
I agree with the above authorities. Whereas the rules prescribe under order 12 rule 3 (2) that service of an interlocutory application to the opposite party shall be made within 15 days from the filing of the application, there is no evidence as to when the respondents counsel helped himself to a copy of the chamber summons. Secondly in the case of Mukasa Anthony Harris (supra) the Supreme Court held that the requirement to serve within seven days even though using the word "shall" was directory because there was no prescription in the rules as to what would happen if there was non – service within the prescribed time. Moreover the court had powers to enlarge time. Learned counsel relied on order 49 rules 2 of the Civil Procedure Rules which provides that:
"All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons."
The rule deals with the manner of service of orders, notices and documents. It does not prescribe a period of service. The mode of service is the method to be used for service of orders, notices and documents. On the other hand order 12 rule 3 (2) provides that service shall be made within 15 days. Furthermore, summons issued under order 5 have to be served within 21 days. If service is not so made on the defendant within 21 days as prescribed, the suit shall be dismissed. Order 5 of the CPR prescribes what would happen if service is not made within the prescribed period of 21 days. Order 12 rule 3 (2) of the Civil Procedure Rules on the other hand does not however prescribe what would happen if service is not effected within 15 days. It does not deal with a situation where a defence is filed. Furthermore order 51 rules 6 of the Civil Procedure Rules gives the court power to enlarge time fixed for the doing of any act or taking any proceedings under the rules. Consequently it is my humble ruling that order 12 rule 3 (2) of the Civil Procedure Rules is not mandatory but directory as held in a similar situation in the case of Mukasa Anthony Harris (supra) by the Supreme Court. I also agree that no question of prejudice can arise where the respondent somehow obtained the chamber summons and filed an affidavit in reply on the merits of the application. The purpose of the rule had been achieved by counsel for the respondent helping himself to the chamber summons on record. I also agree that article 126 (2) (e) of the Constitution of the Republic of Uganda enjoins this court to apply substantive justice. Substantive justice demands that since the object of service had been achieved by whatever means and the respondent had responded to the chamber summons, it would be unnecessary to strike out the chamber application for want of service. To do so would be relying on a technicality and enforcing mere compliance with the rules without regard to substantive justice that deals with the object of the rule.
In the premises, the respondent's objection is overruled with costs and application will be heard on its merits.
Ruling delivered in open court the 15th day of February 2013
Christopher Madrama Izama
Ruling delivered in the presence of:
John Fisher Kanyemibwa for the respondent
Godfrey Kibirige for the Applicant
Charles Okuni: Court Clerk
Christopher Madrama Izama