Wakilii

The Registered Trustees of the Jinja Muslim Club v Uganda Moslem Supreme Council & Others (Civil Appeal 68 of 2023)

High Court · [2024] UGHC 79 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Miscellaneous Application No. 318 of 2022 arising from Civil Suit No. 76 of 2023, brought by way of Notice of Motion
Decision
Appeal dismissed on preliminary objection for failure to serve within the mandatory 21-day period stipulated in Order 5 rule 1(2) of the Civil Procedure Rules

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an appeal brought by way of Notice of Motion is governed by Order 5 rule 1(2) of the Civil Procedure Rules, which requires service within twenty-one days from the date of issue. The provision is mandatory in nature. Where the appellant filed the appeal on 21 July 2023 but only served it on 30 August 2023, outside the requisite 21-day period, and failed to apply for an extension of time within which to serve, the appeal was defective and the court lacked jurisdiction to entertain it. Article 126(2)(e) of the Constitution does not operate as a magical wand for defaulting litigants who fail to exercise their procedural rights. The preliminary objection was upheld and the appeal was dismissed with costs to the respondents.

Outcome

Appeal dismissed on preliminary objection for failure to serve within the mandatory 21-day period stipulated in Order 5 rule 1(2) of the Civil Procedure Rules

Facts

The Registered Trustees of the Jinja Muslim Club filed Civil Appeal No. 68 of 2023, which was endorsed by the court on 21 July 2023. The appeal was served on the respondents' counsel on 30 August 2023. During the court hearing on 7 November 2023, counsel for the 1st, 2nd, 3rd and 6th respondents raised a preliminary objection that the appeal had been served out of time in contravention of Order 5 rule 2 of the Civil Procedure Rules. The requisite 21-day period for service would have expired on 11 August 2023. The appellant did not apply for an extension of time within which to effect service. Affidavits of service on the 4th and 5th respondents were filed on 7 November 2023, also showing service out of time.

Issues

  1. Whether this appeal is defective before this court and should be struck out?

Orders

  • The preliminary objection is upheld.
  • The appeal is dismissed with costs to the Respondents.

Rules and key headnotes

Civil Procedure — Service of Process — Appeals by Way of Notice of Motion — Application of Mandatory Timelines
An appeal brought by way of Notice of Motion is governed by Order 5 rule 1(2) of the Civil Procedure Rules, which requires service within twenty-one days from the date of issue, and this provision is mandatory in nature.
Civil Procedure — Extension of Time — Requirement to Apply for Extension Before Effecting Late Service
Where an appellant fails to serve summons in an appeal within the stipulated twenty-one days from the date of issuance, the appellant is required to make a formal application within fifteen days after the expiration of the twenty-one days for extension of time within which to serve the summons on the opposite party, and such application must be satisfied by evidence clearly stating the reasons for permitting service beyond the stipulated period.
Constitutional Law — Substantive Justice Without Undue Regard to Technicalities — Limits on Application of Article 126(2)(e)
Article 126(2)(e) of the Constitution, which provides for the administration of substantive justice without undue regard to technicalities, does not operate as a magical wand in the hands of defaulting litigants who fail to exercise their procedural rights to apply for an extension of time where mandatory procedural requirements have not been met.

Legislation cited (4)

Cases cited (5)

  • Gwabugada Geoffrey v Bitamisi Namuddu (Court of Appeal Civil Appeal No. 23 of 2009)
  • Edison Kanyabwe v Patoli Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Dr. Kizza Besigye v H.E Yoweri Museveni (Election Petition No. 1 of 2001)
  • Nyanzi Muhammad v Nassolo Harriet & 2 Others (High Court Miscellaneous Application No. 14 of 2021)
  • Byaruhanga & Co. Advocates v Uganda Development Bank (Supreme Court Civil Suit No. 2 of 2007)

Full judgment

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

The Registered Trustees of the Jinja Muslim Club v Uganda Moslem Supreme Council & Others (Civil Appeal 68 of 2023) [2024] UGHC 79 (1 March 2024)
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.