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Byenkya and Another v Asumani Mugenyi (Civil Appeal 5 of 2002)

Court of Appeal · [2003] UGCA 25 · 2003 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the High Court decision on a first appeal from the Chief Magistrate's Court, concerning dismissal and reinstatement of a land recovery suit on a preliminary objection as to service of summons
Decision
Appeal dismissed and cross-appeal allowed; the order reinstating the respondent's suit for trial on the merits stands, with each party bearing its own costs

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Holding

On a second appeal concerning service of summons, the Court of Appeal held that although the original summons was served after the prescribed time, the suit was never dismissed as Order 9 rule 16(1) permits but does not require, and the defect was cured when the first Chief Magistrate granted leave to amend the plaint and issued fresh summons served within time. As no appeal was taken against that ruling, the amended pleadings were properly before court. The appellate Judge erred in holding the fresh summons a nullity. On costs, the appellate Judge's unreasoned discretion to order each party to bear own costs was not shown to be wrong. The appeal was dismissed and the cross-appeal allowed.

Facts

The respondent filed a suit in the Chief Magistrate's Court at Hoima for recovery of land against the appellants. The plaint was first filed on 21 July 1997 against the first appellant, but summons issued for service was not served until 7 October 1998, after the prescribed time had expired. The first appellant filed a defence challenging the validity of the expired summons. On 20 December the respondent applied to add the second defendant and amend the plaint. The first Chief Magistrate overruled the first appellant's objections as irrelevant, allowed the amendment, and issued fresh summons, which were served within time. No appeal was preferred against that ruling. A second Chief Magistrate later upheld preliminary objections and dismissed the suit. On the respondent's appeal, the High Court found the order of the first Chief Magistrate a nullity but reinstated the suit for trial on merits and ordered each party to bear own costs. The appellants appealed and the respondent cross-appealed.

Issues

  1. Whether fresh summons issued on an amended plaint could cure the defect of original summons served after the prescribed time had expired.
  2. Whether the appellate Judge erred in holding that the order of the first Chief Magistrate was a nullity when no appeal had been preferred against it.
  3. Whether the appellate Judge erred in ordering each party to bear its own costs after dismissing all the respondent's grounds of appeal.

Orders

  • The appeal is dismissed.
  • The cross-appeal is allowed.
  • Each party to bear its own costs.

Key headnotes

Civil Procedure — Service of Summons — Effect of Service After Prescribed Time Under Order 9 rule 16(1)
Where summons issued for service is not served within the period prescribed by the rules, the court is empowered but not obliged to dismiss the suit; the power to dismiss under Order 9 rule 16(1) is discretionary, and a suit that has not been dismissed survives notwithstanding late service.
Civil Procedure — Amendment of Pleadings — Curing Defects by Fresh Summons Under Civil Procedure Act s.103
Where a court grants leave to amend a plaint and issues fresh summons that are served within the prescribed time, defects in the original service are cured along with the original plaint, particularly where no appeal was preferred against the order granting leave to amend.
Civil Procedure — Costs — Appellate Interference with Discretion Under Civil Procedure Act s.27
The award of costs is a matter within the unfettered but judicial discretion of the trial court or judge; an appellate court will not interfere unless it is shown that wrong principles were followed, the discretion was exercised unjudicially, or, where no reasons are given, that the order made was wrong.
Civil Procedure — Miscarriage of Justice — Meaning
A decision occasions a miscarriage of justice where there is a prima facie case that an error has been made, or where there has been misdirection on matters relating to evidence or unfairness in the conduct of the trial.

Legislation cited (7)

  • Civil Procedure Rules Order 1 rule 10(2) and (4)
  • Civil Procedure Rules Order 5 rule 1(a)
  • Civil Procedure Rules Order 9 rule 16(1)
  • Civil Procedure Rules Order 9 rule 1A
  • Civil Procedure Act s.27
  • Civil Procedure Act s.101
  • Civil Procedure Act s.103

Cases cited (6)

  • Makula International Vs Cardinal Emmanuel Nsubuga & Another [1982] H.C.B.11
  • Donald Campbell Vs Pollak [1927] A.C.732
  • Kiska Ltd Vs De Angelis [1969] E.A.6
  • Matayo Okumu Vs Fransiko Amudhe & others [1979] H.C.B 229
  • Firida Birabwa Vs Tigalana H.C.C.A.No.2/92 (unreported)
  • Bugisu Co-operative Union Ltd Vs Lawrence Kitts C.A.No.57/001 (unreported)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.