Wakilii

Al Shafi Investment Group LCC v Abu Dhabi Islamic Bank and 2 Others (Miscellaneous Application No. 130 of 2021)

High Court · [2022] UGHC 32 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal arising from dismissal of application to be added as party to originating summons
Decision
Application dismissed for non-compliance with service timelines without leave of court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for leave to appeal dismissed as a non-starter. The court held that service of the application was effected outside the mandatory 21-day period prescribed by Order 5 Rule 1(2) of the Civil Procedure Rules without prior court authorization or application for extension of time. The court found no justifiable reasons for the late service and ruled that the non-compliance was not a mere technicality but went to the substance of jurisdiction. The court further struck out affidavits in reply sworn by advocates purportedly on behalf of respondent companies without formal written authorization.

Outcome

Application dismissed for non-compliance with service timelines without leave of court

Facts

The applicant is a decree holder in Civil Suit No. 695 of 2017 and obtained an order of attachment of shares held by the judgment debtor in the 2nd and 3rd respondent companies on 18th February 2020. Meanwhile, the 2nd and 3rd respondents had obtained a loan from the 1st respondent in 2012, secured by a mortgage over properties registered in their names. Following default, the 1st respondent filed Originating Summons No. 2 of 2020 seeking foreclosure of the mortgaged properties. The applicant filed Miscellaneous Application No. 108 of 2021 seeking to be added as a party to the foreclosure proceedings, arguing that the foreclosure would affect the value of the attached shares. On 14th December 2021, the trial judge dismissed the application. The applicant then filed the instant application on 20th December 2021 seeking leave to appeal, but did not serve it on the respondents until 9th and 11th February 2022, beyond the mandatory 21-day service period prescribed by the Civil Procedure Rules.

Issues

  1. Whether the applicant's failure to serve the application within 21 days of issuance renders the application a non-starter.
  2. Whether the court should grant leave to appeal against the dismissal of the application to be added as a party to Originating Summons No. 2 of 2020.
  3. Whether the affidavits in reply sworn by advocates on behalf of respondents without formal written authorization are valid.

Orders

  • Application dismissed.
  • Affidavit in reply deponed by Counsel Nicholas Mwasome on behalf of the 2nd & 3rd Respondents struck out.
  • Affidavit sworn by Counsel Kirimo Brian on behalf of the 1st Respondent struck out.
  • Each party to bear its own costs.

Rules and key headnotes

Service of Process — Time Limits for Service of Summons — Order 5 Rule 1(2) Civil Procedure Rules
Order 5 Rule 1(2) of the Civil Procedure Rules requires that summons issued shall be served within 21 days from the date of issue, and the time may be extended on application made within 15 days after expiration of the 21 days showing sufficient reasons. Failure to serve summons within the prescribed period without obtaining an extension of time renders the application a non-starter and the summons stale for non-compliance with mandatory procedural requirements.
Extension of Time — Requirements for Valid Extension — No Mechanical Extension
There is no mechanical extension of time for serving summons. An applicant seeking to serve summons beyond the 21-day period must file a formal application by way of summons in chambers showing sufficient grounds for the extension. The court must be satisfied by evidence on record and must state the exact grounds for permitting service beyond the stipulated period. Court cannot extend time by implication merely by issuing schedules for filing written submissions.
Computation of Time — Exclusion of Period Between 24th December and 15th January
Under Order 51 Rule 4 of the Civil Procedure Rules, the period between the 24th day of December in any year and the 15th day of January in the year following, both days inclusive, shall not be reckoned in the computation of time appointed or allowed by the Rules. Under Order 51 Rule 8, where any particular number of days not expressed to be clear days is prescribed, the days shall be reckoned exclusively of the first day and inclusively of the last day.
Article 126(2)(e) — Substantive Justice and Procedural Rules
Article 126(2)(e) of the Constitution enjoins courts to administer substantive justice without undue regard to technicalities but does not empower courts to disregard mandatory procedural rules. A litigant who relies on Article 126(2)(e) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to have undue regard to a relevant technicality. Article 126(2)(e) is not a magical wand in the hands of defaulting litigants.
Affidavits — Authority to Swear on Behalf of Another — Corporate Litigants
Where an affidavit is sworn on one's behalf and on behalf of others, there is need to prove that the others authorized the deponent to swear on their behalf. Proof of such authorization must be by a written document attached to the affidavit. An advocate being conversant with facts of a given application alone does not clothe the advocate with authority to swear evidence on behalf of another. Instructions given to a firm to represent a client do not automatically include instructions to depone affidavits on behalf of the same client. This requirement is stricter where the persons purportedly represented are companies.
Service of Summons — Effect on Jurisdiction — Fundamental Defect versus Technicality
Non-compliance with the requirements of service of summons within the prescribed time is considered a fundamental defect rather than a mere technicality and it cannot be cured by inherent powers since issuance and service of summons goes to the jurisdiction of the court. Until summons have been issued and duly served, the suit is redundant. A court has no jurisdiction to deal with a filed motion until summons have been served and a return of service filed.

Legislation cited (9)

Cases cited (14)

  • Ulex Industries Ltd v Attorney General (SCCA No. 52 of 1997)
  • Horizon Coaches v Edward Rurangarango (SCCA No. 18 of 2009)
  • Horizon Coaches v Edward Rurangaranga and Mbarara Municipal Council (SCCA No. 18 of 2009)
  • Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93
  • Kasirye Byaruhanga and Company Advocates v Uganda Development Bank (SCCA No. 2 of 2007)
  • Fitzpatrick v. Batger & Co. Ltd [1964] 2 All ER 657
  • Mobile Kitale Station v. Mobil Kenya Limited & Another [2004] 1 KLR 1
  • Orient Bank Limited v Avi Enterprises Ltd (H.C. Civil Appeal No. 002 of 2013)
  • Western Uganda Cotton Company Limited v Dr. George Asaba and Three Others (H.C. Civil Suit No. 353 of 2009)
  • Uganda Development Bank v Kasirye Byaruhanga & Co. Advocates (SCCA No. 35 of 1994)
  • Yunusu Ismail T/A Bombo City Store V. Alex Komukamu & Others T/A Ok Bazdri (1992) 3 Kalr 113 (Scu)
  • Taremwa Kamishani & Others v Attorney General (M.A 0038 of 2012)
  • Makerere University v St. Mark Educations Institute (HCCS No. 378 of 1993)
  • Kaingona V Daba Bauban [1986] HCB 59

Full judgment

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Al Shafi Investment Group LCC v Abu Dhabi Islamic Bank and 2 Others (Miscellaneous Application No. 130 of 2021) [2022] UGHC 32 (14 April 2022)
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.