THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO 722 OF 2012
SEMBULE STEEL MILLS LIMITED}............................................... APPLICANT
VERSUS
EURO METAL SERVICES}........................................................ RESPONDENT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
RULING
The Applicant applied for review of the ruling of the court in miscellaneous application number 482 of 2012 under the provisions of order 46 rule 1 (a) and (b) of the Civil Procedure Rules and section 82 and 98 of the Civil Procedure Act and for costs of the application to be provided for.
The grounds of the application are that MA 428 of 2012 was struck out on grounds that it was filed out of time. However there was no evidence to show that service had been properly effected on the applicant as required by order 5 rule 16 of the Civil Procedure Rules (CPR). The affidavit of service on court record was defective for non-compliance with the provisions of order 5 rule 16 of the CPR. The honourable court acted on a defective affidavit of service to conclude that the application for leave to appear and defend was filed out of time. Even before MA No. 428 of 2012 was lodged, the respondent had applied for judgment and court could still enlarge the time within which to lodge the application in exercise of its discretion. Finally that there is an error apparent on the face of the record and that is just and equitable that the application is allowed.
The application is supported by the affidavit of Gerald Kiirya, a director in the applicant company. Apart from repeating the grounds in the notice of motion, the deponent avers that the applicant was never served with summons on 10 July 2012 and as such time did not begin to run on 10 July against the defendant company because service was defective. Notwithstanding MA No. 428 of 2012 was lodged before the respondent had applied for judgment and the court could still enlarge the time within which to lodge the application.
The affidavit in reply is sworn by Oyana Richard the court clerk and process server working with Messrs Sebalu and Lule Advocates. He contends he effected the filing and service of the plaint and summons on the applicant company at its registered office in Nalukulongo on 10 July 2012. He further confirms the contents of his affidavit of service the basis of the contention that the application for leave to appear and defend the summary suit was filed out of time. He avers that he has verified and established that the company/applicant is not denying service of summons but identification of who acknowledged service. He goes on to aver that the two people involved in the acknowledgement of service of summons on the applicant's company were Ivan Semakula at the reception and John Mukalazi who signed on the behalf of Mr Francis Sembuya. The applicant further filed a supplementary affidavit in support of the application by Dennis Sembuya, an advocate of the High Court. He avers that the summons served on the applicant is entitled in the names of Sembabule Steel Mills Ltd and not the applicant which makes the summons effective. Secondly that the purported after service is defective for non-compliance with order 5 rule 16 of the CPR because it does not disclose the name of the secretary who identified and witnessed the delivery of summons to the applicant. Consequently the error on the face of the record was that the application was struck out on the ground of a defective affidavit.
The hearing of the application Musa Nsimbe of Kavuma Kabenge & Co. Advocates represented the applicant while James Mukasa Sebugenyi represented the respondent.
Submissions by Applicant’s Counsel
The applicants counsel argued that the core of the application is that there is an error apparent on the face of the record which emanates from the affidavit of service deposed by Oyana Richard and which the court relied on strike out MA No. 428 of 2012. Counsel relied on the affidavit in support of the application and the supplementary affidavit in support summarised above for the grounds of the application. The contention of the applicant is that the deponent does not name the secretary who identified the director upon whom summons were served. Furthermore the process server did not disclose whether the person he served was a company secretary or an ordinary secretary. This offends the provisions of order 5 rules 16 of the CPR which requires the process server to state in his or her affidavit the identity of the person served or the person who introduced the person served. Counsel relied on the case of MB, Automobile versus Kampala Bus Service [1966] EA page 408 where it was held that disclosure of the name and address of the person who identified and witnessed delivery or tender of summons to the defendant at the material time was a statutory duty. Failure to disclose the name of the clerk in the affidavits had the effect of rendering them defective for non-compliance with the provisions of the CPR. Consequently the applicant asserts that it was never served with court summons on 10 July 2012 as alleged by the respondent and time does not start to run on 10 July because service was defective. Consequently because the affidavit of service was defective the plaintiff cannot claim that the application for leave to appear and defend was brought out of time.
Secondly the summons does not indicate that the applicant was the defendant but named a different person namely Sembabule Steel Mills Ltd. The total effect was that there is an error apparent on the face of the record and the honourable court should review and set aside the ruling striking out MA No. 428 of 2012.
Reply by Respondent’s counsel
In reply the respondents counsel submitted that the applicant is only relying on one ground which is that there was an error on the face of the record and not discovery of new facts as had been pleaded. They had therefore abandoned the ground that the there was discovery of new facts. Counsel submitted that the applicant filed the application for review on 15th of November 2012 and the application was endorsed and issued by the registrar on 20 November 2012 however the applicants counsel deliberately decided to serve it on 21 January 2013. Within two days the respondent filed two affidavits and served them and the court should take that into consideration.
The affidavit in support of the application which the court dismissed was sworn by Ronald Kizito. In that affidavit there was no denial of service. It confirmed that there was service of summons and plaint and affidavit in support. This is what the deponent had a chance to read and respond to. Consequently the aspect of non-service on 10 July 2012 only arises in this application. As far as the proceedings on that day were concerned the applicants counsel did not raise at any time the issue of non-service on 10 July 2012. Consequently it was an afterthought and not a new discovery. Counsel prayed that the court disregards the arguments that there was non-service on 10 July 2012.
Secondly there was no defective affidavit of service because an affidavit of reply had been filed. It confirms that service was effected on 10 July 2012 and on two persons who are mentioned. A defective affidavit does not remove the fact that there was service on 10 July 2012. In the cases relied on by the applicants counsel, there was a total denial of service or absolutely no affidavit of service on record.
Rejoinder of Applicant
In rejoinder the applicants counsel submitted that the affidavit of service was relied upon by the court in making its ruling striking out the applicant’s application in miscellaneous application number 428 of 2012. The court cannot rely on the current affidavit of service purportedly filed by the respondent to correct those anomalies.
Ruling
The main ground of the application for review is that there is an error on the face of the record. The error is that the court in reckoning the time within which MA No. 428 of 2012 was filed, which application was seeking leave to appear and defend a summary suit, relied on a defective affidavit. The defect counsel points out is contained in paragraphs 4 and 5 of the affidavit of service of the summary plaint and summons deposed to by Oyana Richard. Paragraphs 4 and 5 thereof provides as follows:
"4. That on reaching the premises of the defendant company, I found a secretary to whom I introduced myself and tendered copies of the said summons and plaint for acknowledgement."
5. That the secretary forwarded copies of the above documents to the Company director who accepted service by signing on copy of the summons. See the same attached hereto and marked annexure "A"."
The contention of the applicant is that the above paragraphs offend the provisions of order 5 rule 16 of the CPR. Rule 16 provides as follows:
"The serving officer shall, in all cases in which the summons has been served under rule 14 of this order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons were served, and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons."
In the case of M B Automobiles v Kampala Bus Service [1966] 1 EA 480 (HCU) at 486 Sir Udo Udoma CJ held on the above rule as follows:
“The disclosure of the name and address of the person who identified and witnessed delivery or tender of the summons to the applicant at the material time is a statutory duty. It was therefore mandatory as a matter of law for Musa Umar Amreliwalla to have done so. It is also most astonishing that he did not even take down the correct and full name of the applicant at the time of the service.
In my view, failure to have disclosed the name of the so-called clerk in the two affidavits sworn to by him in this matter has had the effect of rendering the two affidavits defective for non-compliance with the provisions of O. 5, r. 17 of the Rules of this Court. It was wrong, therefore, for the Registrar to have acted on such almost incurably defective affidavit of May 17, 1966.
I have used the expression “incurably defective” in describing the affidavit of May 17, 1966, advisedly. The affidavit of October 14, 1966, also sworn to by Musa Umar Amreliwalla never attempted to cure that defect. Indeed, in the latter the man alleged to have identified the applicant for service is described as “a clerk (or person)”, the word “person” being subsequently struck out, which, in my view, is some evidence that Musa Umar Amreliwalla was himself not sure of the status or office of the so-called identifier, if there was any.”
On the basis of the above authority, counsel submitted that it was erroneous for the court to rely on the affidavit of service to reckon time. Counsel contended that there was no affidavit of service and therefore the defective affidavit of service cannot be the basis for reckoning time for purposes of striking out the applicant’s application for leave to appear and defend the suit. I have carefully considered the submissions of counsel for the respondent that it was not in dispute at the hearing of miscellaneous application 428 of 2012 that there was no service on the applicant.
The record shows that the applicants counsel submitted on the merits of MA No. 428 of 2012. His contention was that the applicant disputes the claim in the plaint and should be given a hearing on the matter. Secondly the applicants counsel attacked the affidavit in support of the summary suit. In reply the respondents counsel objected to the application on the ground that it was filed out of time. He contended that the application was filed on 24 July 2012 whereas summons had been served on 10 July 2012 on the applicant. In reply the applicant’s counsel submitted that the summons served on the applicant were blank. That they did not have a suit number so it was difficult to determine the suit which the applicant was responding to. Secondly that the summons was defective. Thirdly he raised the issue of the affidavit of service. He contended that the acknowledgement bears a signature of a person who is unknown and a date which is not clear. He contended that the applicant found out about the summary suit when it came to the court registry.
The question of whether the affidavit of service was acknowledged by an unknown person was a matter in controversy and the court ruled on it. This appears between pages 4 and 5 of the ruling of the court delivered on 9 November 2012 which are reproduced as follows:
“Learned counsel for the Applicant contended that the summons served on the applicant was blank because it had no suit number so it was difficult to determine which suit the applicant was responding to. He concluded that summons served on the defendant were defective. Furthermore the signature of the person who acknowledged service was unknown to counsel and there is a date which is not clear. It reads 10.7. Consequently he contended that service was not done effectively on the applicant based on the affidavit of service. The applicant found out about the suit only from the court registry.
The evidence on record shows that summonses were issuedon 28 June 2012. Subsequently the plaintiff through Oyana Richard in an affidavit sworn on 25 September 2012 avers that he received the summons on 10 July 2012. On the same day he proceeded to the defendant's premises and on reaching the premises, he found the secretary to whom he introduced himself and tendered copies of the summons and plaint for acknowledgement. The secretary forwarded copies of the summons and plaint to the company director who acknowledged service by signing on the copy of the summons. The acknowledgement shows that it was signed on 10 July though the year is not stated. However, the affidavit of service has not been contradicted by any counter evidence. Pursuant to the service the applicant filed the application on 24 July 2012.”
The basis of the applicant’s submissions in miscellaneous application number 428 of 2012 are contained in the affidavit in support of that application for leave to appear and defend sworn by one Ronald Kizito. The affidavit avers that Ronald Kizito is a director in the applicant company and that he read and understood the contents of the plaint and supporting affidavit. The director responded to the merits of the summary suit in his affidavit. I therefore agree with the respondents counsel that the issue of whether the applicant was served or not did not arise as the applicant had responded by applying for leave to appear and defend the suit albeit out of time. In any case, if the applicant was not served, why should the application for leave to appear and defend be reviewed? Non service goes to the root of an issue as to whether the action should be maintained at all.
I have considered the applicants authority M B Automobiles v Kampala Bus Service [1966] 1 EA 480 (HCU) as tothe interpretation of order 5 rule 16 of the Civil Procedure Rules. In that case it was held that the affidavit of service was defective. In other words there was no proper service of summons on the defendant. In this particular case the applicant who is the defendant to the summary suit filed an application for leave to appear and defend and thereby corroborates the affidavit of service. The applicant further in this application seeks it to have the application for leave to appear revived. Paragraph 4 of the affidavit of service of the summary suit which I have quoted above does not indicate the address of the defendant company/applicant company. It however states that the process server found the secretary to whom he introduced himself and tendered copies of the summons and plaint for acknowledgement. The secretary forwarded copies of the documents to the company director who accepted service by signing on a copy of the summons. Consequently what is material in this application is whether the court erred in law to hold that service was effected on 10 July 2012. The applicant is estopped from challenging the validity of service because it waived the right to object when it responded to the summons by filing an application for leave to appear and defend the summary suit and also seeking to have that application which has been dismissed revived.
Secondly the alleged misnomer in the name of the applicant did not mislead the applicant that an action had been filed against the applicant company and the applicant responded accordingly. It is a defect that can be corrected through amendment had there been further proceedings between the parties. However the plaint itself correctly describes the applicant as Sembule Steel Mills Ltd.
Taking all the above factors into account, there was no prejudice occasioned to the applicant in the ruling of the court that the application was time barred on the basis of the affidavit of service of Oyana Richard. There was no error occasioning a miscarriage of justice. The remedy of the applicant was to apply for extension of time to file the application. Last but not least the error apparent on the face of the record is not an error because the court was not addressed on the issue of service in terms of order 5 rule 16 of the Civil Procedure Rules and could not have misconstrued what it never addressed its mind to. In the premises, the applicant’s application for review is without merit and stands dismissed with costs.
Ruling delivered in open court this 25th of January 2013
Christopher Madrama Izama
Judge
Ruling delivered in the presence of:
Musa Nsimbe for the applicant
Michael Mafabi holding brief for James Mukasa
Charles Okuni Court Clerk
Christopher Madrama Izama
Judge
25th of January 2013
