Wakilii

Odeba and Others v Oryema (Civil Appeal No. 16 of 2021)

High Court · [2023] UGHCCD 87 · 2023 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from lower court; preliminary objection raised before commencement of hearing
Decision
Preliminary objection dismissed; main suit to proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that failure to return summons for directions within 14 days under Order XIA rule 1(3) of the Civil Procedure Amendment Rules 2019 does not render the summons invalid. The word 'shall' in the rule is directory, not mandatory, and the rule's intention is to mitigate delays and inefficiencies, not to serve as a weapon for an adverse party. The preliminary objection was overruled and dismissed with costs to abide the main cause.

Outcome

Preliminary objection dismissed; main suit to proceed

Facts

The appellants, suing on their own behalf and on behalf of 327 others, claimed that disputed land belonged to the Lwalo clan through customary occupation spanning 3-4 generations since the 18th century. Around 2017, the respondents, as administrators of the estate of the late Peter Oryema Gwokto, claimed approximately 186 hectares covering 3 villages and began selective evictions. The appellants discovered the respondents had obtained a leasehold certificate of title (LRV1980, Folio 25, Block 4, Jonam County, Nebbi District) which they alleged was fraudulently acquired. Before the hearing commenced, the respondents raised a preliminary objection that the appellants had taken out summons for directions on 10 November 2021 but only served them on 26 November 2021, failing to return them to court within 14 days as required by Order 11A r.1(3) of the Civil Procedure Amendment Rules 2019.

Issues

  1. Whether failure to return summons for directions within 14 days as required by Order XIA rule 1(3) of the Civil Procedure Amendment Rules 2019 renders the summons invalid.

Orders

  • Preliminary objection overruled.
  • Application dismissed.
  • Costs shall abide the main cause.

Rules and key headnotes

Civil Procedure — Summons for Directions — Failure to Return Within Statutory Period — Effect on Validity
Failure to return summons for directions within 14 days as stipulated under Order XIA rule 1(3) of the Civil Procedure Amendment Rules 2019 does not render the summons invalid, as the word 'shall' in the rule is directory and not mandatory.
Statutory Interpretation — Mandatory versus Directory Provisions — Use of 'Shall'
The word 'shall' in a statutory provision is sometimes intended to be directory only and may be construed as equivalent to 'may' where necessary to carry out the legislative intention, particularly where no penalty is prescribed for non-compliance.
Civil Procedure — Preliminary Objections — Purpose of Procedural Rules
Procedural rules such as Order XIA rule 1(3) are intended to mitigate delays and inefficiencies in civil proceedings and should not be used as a weapon by an adverse party; a holistic and judicious approach to their application should be adopted by the courts.

Legislation cited (2)

Cases cited (4)

  • Geoffrey Wasswa v Army for Africa Ltd (Civil Suit No. 127 of 2020)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Mathias Lwanga Kaganda v UEB (HCCS No. 124 of 2003)
  • Kagimu Moses Ggava and Others v Sekatawa Muhammad and Others (HC Misc. Appeal No. 25 of 2020)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Odeba and Others v Oryema (Civil Appeal No. 16 of 2021) [2023] UGHCCD 87 (31 March 2023)
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.