Mulyabintu v Case Western Reserve University (OHIO) and Another (Civil Appeal 190 of 2013)
Observed later treatment
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Holding
The Court of Appeal dismissed the appeal, upholding the trial judge's finding that there was no suit before the court capable of being amended because summons had never been served on the surviving defendant. Under Order 5 rule 1(3) of the Civil Procedure Rules, where summons is not served within 21 days and no application for extension of time has been made or such application has been dismissed, the suit shall be dismissed without notice. Such dismissal is mandatory, not discretionary, and is not on the merits. A suit so dismissed cannot be reinstated; the plaintiff's remedy is to file a fresh suit subject to the law of limitation. Each party was ordered to bear its own costs.
Outcome
Appeal dismissed; the underlying suit remains dismissed and cannot be reinstated, the plaintiff's remedy being a fresh suit subject to limitation
Facts
In 2002 the appellant filed a suit against three defendants, including Case Western Reserve University (Ohio) and Makerere University, seeking compensation for injury at work after allegedly contracting tuberculosis in 1998 while exposed to patients. Only the first and third defendants were served and filed defences, but the suit was withdrawn against them in 2007. An amended plaint was then filed against Case Western Reserve University (Ohio), the surviving defendant, who was never served with summons. In 2011 the Deputy Registrar dismissed an application to extend time for service. The suit was dismissed but reinstated in 2012. The appellant's subsequent application to amend the plaint was dismissed for non-appearance. His application to set aside that dismissal and reinstate the matter was refused by the High Court on the basis that, with no valid service of summons, there was no suit capable of amendment. The appellant appealed to the Court of Appeal.
Issues
- Whether an amendment could be made to a plaint where summons had not been served on the defendant.
- Whether a suit dismissed under the mandatory provisions of Order 5 rule 1(3) of the Civil Procedure Rules for want of service of summons can be reinstated.
Orders
- Appeal dismissed.
- Each party to bear its own costs of the appeal.
Rules and key headnotes
Legislation cited (7)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.