THE REPUBLIC OF UGANDA
IN
THE COURT OF APPEAL OF UGANDA, AT KAMPALA
CIVIL APPEAL NO. 016 OF 2004
THE C
ITY COUNCIL OF
KAMPALA··.·..·.·.·.·..·.·.·.·..·.·.·.·..·.·.·.·..·.·.·.·..·.·.·.·..·.·.·.·..·.·······APPELLENT
AND
CRESTE
D CRANE TOURS AND TRAVEL L
TD:::::::::::::::::: RESPONDENT
CORAM:
HON JUSTICE SOLOMY BALUNGI BOSSA JA;
HON JUSTICE RICHARD BUTEERA, JA;
HON JUSTICE KENNETH KAKURU, JA.
JUDGMENT OF HON JUSTICE KENNETH KAKURU, JA
This
appeal arises from a decision of Hon.Justice V.F. Musoke-Kibuuka
dated 21
st August 2003 in Civil Suit No. 966 of 1999.
The app
ellant was the defendant in the original suit and in which judgment
was ent
ered in favour of the respondent 21/8/2003.
At the h
earing of this appeal Mr. Bernard Mutyaba Ssempa appeared for
t
he appellant and Mr. Benson Tusasiirwe appeared for the respondent.
I
nitially there were three grounds of appeal set out in the Memorandum of
Appeal
. However, at the commencement of this appeal Mr. Mutyaba
Sempa l
earned counsel for the appellant withdrew grounds 2 and 3 leaving
1
only gro
und one for determination. I must state that learned counsel for
the app
ellant rightly withdrew the grounds because they were too general
and offe
nded, in my view the provisions of Rule 86 of the Rules of this
cour
t. Had he not withdrawn them I would still have been inclined to strike
them ou
t.
There
fore, there is left only one ground for determination in this appeal, that
IS
ground one, which states as follows:
(
1) "The learned trial judge erred in law and in fact when he made a
fi
nding that the appel/ant was duly served with the statutory notice. J~
It is n
ot in dispute that the appellant is a statutory body, a Local
Govern
ment, and as such the respondent was required to serve upon it a
Statutory
Notice of Intention to sue under the provisions of the Civil
Proced
ure and Limitations (Miscellaneous Provisions) Act.
Counse
l for the appellant urged that the appellant was not served with a
S
tatutory Notice of Intention to sue. That no evidence whatsoever was
add
uced at the trial to show that the notice was served upon the appellant
by the
respondent in accordance with the law. That although a Statutory
Notice
was issued by the respondent dated 8/2/1999, it was never
effecti
vely served. However, he conceded that a copy of the notice was
a
nnexed to the plaint. He also conceded that it bears a stamp of
appell
ant's legal department, the City Advocate's Office.
2
He urge
d that, the stamp and signature as indicated on the copy of the
notice wer
e not enough to prove effective service upon the appellant.
Counsel c
ontended that the mode of service of a Statutory Notice of
Intention t
o sue is set in Regulation 26 of the third schedule of the Local
Governme
nt Act, Cap 243 which provides that summons and notices or
other doc
uments required to be served upon a District or urban councils
shall be s
erved by delivering it to or by sending it by registered post to the
Chief Ad
ministrative Officer or the Town Clerk.
He rel
ied on the case of Micheal Sansa and others versus Kampala City
Council (
HCCS No 482 of 1999) (unreported)
in which the High Court held,
(f; I
.Af {jVV
in that p
articular case, that a notice served which was} Qft the City
Advocate
's Office did not comply with Regulation 26 of the Local
Government
Act. He also cited the decision of this court, in:
The City
Division Council of Rubaga Versus Jimmy Muyanja, (Civil Appeal
No. 14 o
f 2002,)
which cited the case of Micheal Sansa and others Versus
Kampala
City Council (Supra)
with approval.
In reply l
earned counsel for the respondent urgued that, the service was
effective.
He contended that service upon the City Advocate was effective
service u
pon the Town Clerk. He urged that although the matter was
framed as a
n issue it was never pleaded and was not canvassed by either
party
in evidence in chief or cross examination. He fully associated himself
with the fi
nding of the learned trial judge.
3
It is trite
law that failure to serve a Statutory Notice of Intention to sue upon
governm
ent, Local Government or scheduled Corporation, before filing a
suit, ren
ders the whole suit incompetent. See: Kampala City Council
Versus
Nuliyati [1974] EA 400.
The Mod
e of Service of the Statutory Notice is set out under Rule 26 of the
third sch
edule of the Local Government Act Cap 243 which provides as
follows
:-
"26Mod
e of Service of summons etc
(1) A
ny summons, notices or other document required or authorised to
be
served on a district, urban or sub-county council shall be served
by
delivering it to or by sending it by registered post addressed to,
th
e Town Clerk, Chief Administrative Officer or Chief of the subcounty
of the counc
il. "
It was c
ontended by counsel for the appellant that there was none
complia
nce with this rule as service was never affected on the Town Clerk,
therefore
there was no effective service. However, in his submission
before thi
s Court he conceded that the City Advocate was an agent of the
Town Cl
erk and that service upon him would be effective service.
I entirely
agree that service upon the City Advocates is effective service
upon the T
own Clerk.
4
Indeed t
his is what Hon Justice V. Zehurikize (J) of the High Court held,
when he
stated in the case of Micheal Sansa Ltd and others VS KCC
(Supra) whic
h was cited and relied upon by the counsel for the appellant.
At page 8 o
f his judgment he states as follows:
{l
if service had been effected on the City Advocates, it would have
been
effective service for the purpose of Regulation
26, see Impact
Proc
es Ltd (Supra). This is because a City Advocate is a clear agent
of th
e Town Clerk, who is known to be responsible for legal matters of
the City
Council': (Emphasis mine)
In the case o
f Impact Process Ltd Vs City Council of Kampala HCCS No
929 of 19
97 (unreported). Hon J. H. Ntagoba (P.J) (as he then was) held
that servic
e upon the City Advocate was effective service upon the Town
Clerk. He h
owever struck out the suit, as the Statutory Notice in that
particular ca
se had been served upon a filing clerk in the office of the City
Advocate. C
learly therefore the issue for determination in this appeal is
whether th
e learned trial judge erred when he held that there was effective
service up
on the City Advocate as an agent for the Town Clerk.
In the case o
f Impact Process Ltd Vs City Council of Kampala (Supra)
evidence wa
s adduced to show that service had been effected on a filing
clerk.
5
In
the case of Micheal Nsansa and others Versus KCC, (supra) it was
shown b
y evidence in court that service had been effected on one Esther a
clerk in t
he City Advocates Office. Court rightly found that there was no
effective s
ervice upon the City Advocate.
In
the case of City Division of Rubaga Versus Jimmy Muyanja, (Civil
Appea
l No. 14 of 2002). (unreported)
This court
was required to determine an issue that had been raised at the
trial whic
h had not resolved by the trial judge. That is:
"
Whether the Statutory Notice had been served upon the appellant in
t
hat case. "
In
that case the matter had been brought in issue by way of preliminary
object
ion. Court decided to resolve it upon hearing evidence. Evidence
adduced
in court on this issue, was that the person who is said to have
effected s
ervice delivered the document to the Secretary of the Town Clerk
at the rec
eption of the Town Clerk's Office and a gentleman signed her
del
ivery book.
In
her lead judgment, Hon Lady Justice C.N.B Kitumba (as she then was)
observed
as follows:
'
Personal knowledge of the person to be served is not necessary for
eff
ective service. Be that as it may, I am not convinced the service
was
effected on the appellant because of the following reason:
6
Fir
stly, the Statutory Notice which is annexture A in reply to the
res
pondent's written statement of defence and the delivery book
exhi
bit P5 does not bear either a known signature of the Assistant
To
wn Clerk or the appel/ant's stamp.
Sec
ondly, PW2's testimony is that she typed the Statutory Notice on
3
rd August 2000 and served it on the appellant on the same day.
Ho
wever, the Statutory Notice is dated 1stAugust 2000.
Thi
rdly, PW2 testified in cross examination that she does not know
wh
at a Statutory Notice is. It is possible that if she served any
doc
ument to the appellant it might have been something else and not
a St
atutory Notice. "
Clearly fr
om the above, evidence was adduced in court as to service. The
Statutory
Notice did not bear any stamp of the office at which it was served.
Court cor
rectly found that there was no effective service.
The abo
ve case is clearly distinguishable from the one from which this
appeal a
rises. In this case Paragraph 4 of the plaint specifically avers that
"
The Statutory Notice of Intention to Sue was duly served upon the
de
fendant. It is annexed to the plaint as annexture 'F'."
7
Annextur
e 'F' bears a rubber stamp with the following inscriptions:
L
egal Department
City
Advocates Office
12
Feb 1999
P.
O. Box 7010 Kampala
The stamp
also bears a signature. In the appellant's written statement of
defence
which has only 4 paragraphs none of them specifically traverses
paragrap
h 4 of the plaint. Paragraph 2 of the written statement of defence
simply st
ates that paragraph 4 of the plaint is denied.
At the h
earing of this appeal Mr. Mutyaba Sempa strongly argued that
paragraph
3 of the written statement of defence effectively traversed
paragrap
h 4 of the plaint. Paragraph 4 of the written statement of defence
reads as f
ollows:
"
The suit is barred by Act 20 of
1969 and the Local Government Act,
19
99 and the defendant will move court at or before the hearing that it
be
struck out with costs. If
When
the hearing of the case proceeded at the trial, Mr. Mutyaba Sempa
who was i
s also counsel for the plaintiff, now appellant did not raise any
prelimina
ry objection at all, in regard to the Statutory Notice.
8
The issu
e, whether or not the suit was barred by statute was never raised
as a prel
iminary objection neither was it framed as an issue. It seems to
have been
abandoned.
The issue
of the service of Statutory Notice was framed as an issue at the
schedu
ling conference. The Statutory Notice was not listed among "agreed
documents
" at the conferencing.
The suit th
en proceeded with the testimonies of witnesses.
The plaintif
f called three witnesses and the defendant now appellant called
one witnes
s. None of the witnesses testified on the issue of service of the
Statuto
ry Notice at all. Counsel for the defendant then did not raise it at all
i
n the cross examination.
Surpris
ingly, both counsel submitted on the issue in their written
submissio
ns.
In his subm
ission on appeal Mr. Mutyaba Sempa did not deny knowledge
of annextu
re 'F' to the plaint. His argument was that service was not
effective as
the notice was not served on the Town Clerk in person. He
later conce
ded that service on the City Advocate was effective service on
the Town C
lerk for the purpose of Rule 26 of Schedule 3 of the Local Govt
Act
.
He strongly
argued that service on any person at the City Advocates Office
could not b
e effective service.
9
He relied
on the authorities of the City Division of Rubaga Versus Jimmy
Muyan
ja Civil Appeal No 14 of 2002 (Court of Appeal) (unreported). (supra)
and M
icheal Nsansa and others Versus KCC (HCCS No 482 of 1999).
(
unreported).
I
have already noted that in these two cases the facts are clearly
dist
inguishable from those from which this appeal arises. In both cases
cited ab
ove, evidence was adduced as to service, witnesses were called
and c
ross examined.
However
, in this particular case before me, the judge and the parties seem
to ha
ve accepted annexture 'F' to the plaint as part of the evidence at the
trial
. The only issue was its evidential value.
The lea
rned trial judge was satisfied that the Statutory Notice was received,
stamped
and signed in acknowledgement of receipt by the legal
depa
rtment of City Advocates Office, Kampala on 12th Feb 1999.
In
my view annexture 'F' was prima facie evidence of service. Since, the
respon
dent had presented prima facie evidence of service, in my view he
discha
rged his evidential burden. The evidential onus then shifted to the
appella
nt. The onus shifted to the appellant to show that service was not
effectiv
e. It was up to him to show that it had been effected upon a
"
sweeper" or "tea girl" or a clerk as counsel for the appellant submitted, in
t
his court.
10
It was, u
pon the appellant to show or prove that the stamp was a forgery or
the signa
ture was unknown. He did not. I hasten to add that because he
had no
t pleaded any defence to paragraph 4 of the plaint, rules of evidence
would not
have permitted him to adduce evidence on a matter that was not
pleaded in
defence.
Be tha
t as it may, he ought to have raised the issue at least in cross
examinatio
n. He did not.
It is trite l
aw that one who alleges must prove. The burden of proof
therefo
re lies on the plaintiff. However, once this burden is discharged, the
evidentia
l burden shifts to the defendant, or respondent as the case may
be.
In the cas
e of Col (Rtd) Dr. Besigye Kizza Vs Museveni Yoweri Kaguta and
another, S
upreme Court Election Petition No 1 of 2001 (unreported). Hon.
Odoki C
.J had this to say on the shifting onus at page 176 of his
judgement
.
'~s
far as the shifting of the burden of adducing evidence is
conc
erned, it is stated in Sarker's Law of Evidence Vol
1, 14'h edition
Rep
rint
1997, pages 1338 - 1340 as follows:
It ap
pears to me that there can be sufficient evidence to shift the onus
from o
ne side to the other if the evidence is sufficient prima facie to
esta
blish the case of the party on whom the onus lies.
11
Wh
at is meant is that in the first instance the party on whom the onus
lies
must prove his case sufficiently to justify a judgment in his favour
if th
ere is
170 evidence. Sloney Vs Easlborne Rd Council (1927) 1
Ch
.
367, 397"
In the sam
e case Besigye Vs Museveni (supra) Justice Tsekooko JSC
states on p
age 143 of his judgment.
':.
..Once the petitioner had proved fabrication and falsity, the burden
shifte
d to first respondent to prove otherwise"
See also the j
udgment of this court in the case of James Mboijana Vs
Caroline M
boijana (Civil Appeal No 87 2002) unreported."
In my view, t
he respondent discharged his burden when he produced a
copy of the
Notice of Intention to Sue, duly stamped and signed as already
indicated a
bove. At that point the evidential burden shifted to the appellant
to prove tha
t the notice was never received. He failed to do so. In fact he
opted not to c
hallenge the service both in his written statement of defence
and in cros
s examination.
Consequen
tly, the evidence on record as to service of the notice remained
unchallenged.
This is how this case is distinguishable from that of Micheal
Ssansa (su
pra) and that of Jimmy Muyanja (supra).
Suffice it to s
ay, I entirely agree with the reasoning and conclusion of the
learned tr
ial judge on this issue.
12
This grou
nd therefore must fail. Since it is the only ground for
determinat
ion, this appeal fails, and it is accordingly dismissed with costs,
in this court
and in the court below.
Dated at K
ampala, this 27th day of September 2013.
Kenneth Kakuru
~
JUSTICE
OF THE COURT OF APPEAL
13