Wakilii

E.B. Nyakaana & Sons Ltd v Kobusingye & 16 Ors (Miscellaneous Application 13 of 2017)

Supreme Court · [2017] UGSC 65 · 2017 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by the 12th to 17th respondents to be struck out of a miscellaneous application for failure to be served, the miscellaneous application itself arising out of Supreme Court Civil Appeal No. 02 of 2017
Decision
The 12th to 17th respondents struck out for non-service; the application directed to proceed between the applicant and the 1st to 11th respondents.

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Holding

On an application by the 12th to 16th respondents and the 17th respondent (the Official Receiver) to be struck out of a miscellaneous application, the Court held that service of the notice of motion and supporting documents on all necessary parties not less than two clear days before the hearing under Rule 47(1) of the Rules of the Supreme Court is couched in mandatory terms. The duty to effect service rests on the party who files the application unless leave to dispense with service is obtained or the Court orders otherwise. As the applicant had failed to serve these respondents, the Court struck them out under Rule 2(2) and directed the application to proceed between the applicant and the 1st to 11th respondents.

Facts

The applicant filed Miscellaneous Application No. 13 of 2017 in the Supreme Court, arising out of Supreme Court Civil Appeal No. 02 of 2017. Counsel for the 12th to 16th respondents and counsel for the 17th respondent, the Official Receiver, applied to have those respondents struck out of the application on the ground that the applicant had failed to serve them with the application and the supporting documents. The Court noted that after it adjourned the hearing on 23 May 2017 to prepare the ruling, an affidavit of service dated 23 May 2017 deponed by Yesse Mugenyi was lodged and placed on the court record by registry staff, conduct to which the Court took strong exception and indicated it would address in the main application.

Issues

  1. Whether the 12th to 17th respondents should be struck out of the application for the applicant's failure to serve them with the notice of motion and supporting documents as required by Rule 47(1) of the Rules of the Supreme Court.

Orders

  • The prayer of the 12th to 16th respondents and the 17th respondent to be struck out of Misc. Application No. 13 of 2017 is granted.
  • The 12th to 17th respondents are struck out of the application due to non-service of documents by the applicant.
  • The application shall proceed between the applicant and the 1st to 11th respondents.

Key headnotes

Civil Procedure — Service of Process — Notice of Motion — Mandatory Service Under Supreme Court Rule 47(1)
Rule 47(1) of the Rules of the Supreme Court, requiring that the notice of motion and copies of all affidavits be served on all necessary parties not less than two clear days before the hearing, is couched in mandatory terms; necessary parties are those directly affected by the application or the appeal from which it emanates.
Civil Procedure — Service of Process — Duty to Effect Service on the Filing Party
The duty to effect service of an application or appeal rests on the party who files it, unless that party has obtained leave of the Court to dispense with service or the Court decides on its own volition to effect service itself.
Civil Procedure — Service of Process — Consequence of Non-Service — Striking Out the Non-Served Party
Where a party fails to serve a necessary party directly affected by the matter, and has neither obtained a direction dispensing with service nor had the Court order service, the unserved party is justified in seeking, and the Court may order, that it be struck out of the proceedings under Rule 2(2) of the Judicature (Supreme Court) Rules.

Legislation cited (3)

  • Rules of the Supreme Court r.47(1)
  • Judicature (Supreme Court) Rules r.2(2)
  • Rules of the Supreme Court r.74(1)

Cases cited (1)

  • Edward Rurangaranga and Another v Horizon Coaches Ltd (Civil Application No. 21 of 2008)
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.