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t. Had he not withdrawn them I would still have been inclined to strike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