[1992] UGHC 74

THE REPUBLIC OF UGANDA IN THE HIGH COURT GF UGANDA AT KAMPALA

## CIVIL APPEAL NO, 13 OF 1989

## (FROM MISC. APPLICATION NO. 33/83)

1. STANLEY BEYENDERA; **5**

APPELLANT 2. ARON BISIRU

## VERSUS

RUKUNGIRI DISTRICT ADMINISTRATION RESPONDENT BEFORE: THE HON. MR. JUSTICE G. M-. OKELLO

## JUDGMENT:

This appeal was cause listed\_for hearing.heforeje to-day 16/4/92\* When it was called for hearing, the appellants and their counsel appeared but. the A+ 4-orney-General¹ s Chambers. \_There being no explanation no representative from the Attorney-General's chambers appeared for the Respondent though there was evidence of due service of Hearing ?iotice on for the .absence, I allowed '■he\* hearing of the appeal to proceed ex-parte under 039 r 14 ^2) of the CPR.

Chief Magistrate's case and to substitute for the defewhich was improperly included as a defendant\* The ground of the application were that the original plaint was drawn by laymen who were not the above section 101 of '\*be Civil Procedure Act for leave of that court, to amend • — The intended amendment sought to^omit the 3r^ Plaintiff'in i ' ' I The appellants had^applied by Notice of Motion dated 9/6/83 +o the court of Kigezi under 0.1 r. 10 (2) of the^CPR.and their plaint. the original plaint as he no longer was interested^in^persuing the ''Rukungiri District. Administration" ndant instead of the ''Administrative Secretary of Rukungiri District" conversant with the art of drafting plaint and thereby made errors which needed to be corrected\*. That^the purpose of the intended Amendment was to enable the court to effectually and completely

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in the suit. In on appealed 'to '■his court. 16/8/89 the Ag. Chief Magistrate this order of dismissal a. adjudicate upon and settle.all questions involved his Ruling which was delivered ^dismissed the application. It was against that the appellants now

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The first Chief Ma^stra ^t ^e *'*^s Ruling in believing \*he contents of ^a mere letter dated 30/9/83 from '■he Attorney-General's Chamber in preference to the Ground four accused the Ag. Shief Magistrate for failure Ground five Seven grounds wore advanced and argued in.this appeal, ground attacked the trial ag. Chief Magistrate for holding and implying that a statutory Notice under section 1 of Act 20/69 is required to be filed in court. The second ground challenged the Ag. 'V. S. D. Ground seven is merely^a summary of grounds ¹ - *6.^* to appreciate tho^purpose of the intended amendment. complained agannst^the Chief Magistrate treating the letter dated 30/9/83 from the Attorney-General's chamber as if it was an amendment to the V/SD and Ground six\_attacked the Chief Magistrate for considering ^hc issue of service of statutory Notice which was not raised in the affidavit which was sworn by Aron Bisiru as to whether the statutory Notice was sc-rved\_on the^intended defendant as required by section 1 of A.ct 20/69 yet the letter did not form part of the proceedings# Ground three questioned the understanding of the Ag.^Chief Magistrate of section 1 of\_Act 20/69 as tp who should be served with the statuting Notice of intention tp sue where a Local Administration was the intended de fondant.

some wrongful acts which were committed against them by servants/Agen-' " The three plaintiffs in the original plaint had jointly instituted the suit against the Administrative Secretary Rukungiri District for

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restrain the amount. qualifecatien. copy of +he Plain\*-. These were passed to the Attorney General's Chambers. On receipt of this process, the Attorney-General defendant. Later the ^rd plaintiff who felt unable to proceed with eneral Damages in The plaintiffs are all laymen without any legal ^he defendant Appearance with a an order for injunction to was duly served with summons to Enter " pict/administration in 'he course of their employment. In +he action, i-he plain+iffs ioinHy claimed G +respassj-o +heir land, defendant from further Chamber duly entered ⁴-ho necessary Appearance and ''lied a WSD for tl commiting^treSpa5S on the plaintiffs land; Compensation for damages^caused the Plaintiffs property on the land during the trespass, cost of\_the action and interest on the decretal The plaint was drafted and signed by one of the plaintiffs for them all. the case dropped out and +he rest of^the plaintiffs instructed M/S Mwebesa & Co. Advocates to prosecute the suit on their behalf.

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On perusing the original plaint, questions in dispute between +he\_parties. that «-he plaint, needed amendment to effectually determine t.he\_raal\_^e Hence that application the counsel for the Plaintiffs decided dismissal of vfh:» ch is the subject of this Appeal.\_ I shall consider- the ^rounds of this Appeal in the order in which they were argued.

filed in court fnr him to see. Magistrate erred in law in holding and implying^that required under the provision of section 1 of Act 20/69 should have been The first ground of xhe Appeal was that tho\_lcarned\_Ag.\_Chief ^a a statutory Notice

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Chief Magistrate said on page one of his Ruling thus:- Arguing '■his ground, Mr. Mwebesa pointed out that while considering the question whether '•he statutory Notice\_was\_served on '-he defendant as required by sec'-ion 1 of Act 20/69, the '-rial Ag.

"It is regrettable that the A. G.'s office has been aware of '■his date but has not sent a representative. Bo that it may, according '-o schedule 1 of Act 20/69, the Administrative Secretary of '■he District is -stated to be delivered or sen' in case of a local .idminis4-ration. I appreciate 'ha' some Notice could have b.een given to the Administrative Secre'ary. However, such No'-ice is not on record before me. -Since it was filed\_by a layman^t court is no' sure whether '■he s+atu'ory Notice of. 60 days was complied with. The plaintiffs words in the affidavit of 11/1/84 is not enough".

20/69 was required be filed in cour+. Counsel submitted that, tended defendant but no⁴- Magistrate implied that the statutory Notice und-r'section ¹ of that was erroneous ⁷ n\*erprelation of '■he provesion\_of section ¹ of the xct. That '-he section merely required '■hat such Notice be served on the inon '•he court. Mr.- Mwebesa contended that by the above passage, '■he trial Chief

by the learroi counsel fha\* '•he As. Chief seems that it was. a requirement of the provision of section l~of Ac' 20/69 that the statutory Notice should be fil^d in court. \_If, to me clear that the learned Chief Magistrate was in that passage implying expressing his doubt as '■n '-he form of^'-he Notice which '-he deponent claimed '-o have served on '-he defendant. He was doubting whether the Appellant a layman could issue •'•he form of statutory Notice required I do not perceived from the above passage the meaning portrayed Magistrate was thereby

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under served on the Notice was no\*- on the record before him. was not enough. It was copy^of what was claimed t^o have beenserved on the statutory *Not*ice For /this reason this ground must fail. necessary for a defendant as see ion 1 of /ict 20/69. That he had no way of verifying •'•he ponent s^claim in the affidavit that \*he statutory ^otice was ! defendant since such a That the words of the dep -nent in the affidavit He was considering the evidence before him. a statutory notice to have been annexed to the affidavit. and placed^on record before him to veri fy that the document served was indeed a statutory Notice as required by section 1 of act 20/69-

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Tne next is ground 2, It was 4-ha4- the learned ng. Chief Magistrate further erred in law by believing the contents of a mere letter dated ?O/9/8p from the Attorney - General's Chamber and disregarded the ³ ffidavit dated 11/1/84 by Aron . Bisiru which form the court proceeding while the letter does not.

passage in the Ruling Arguing this ground ^J Mr. Mxvebesa referred to a of the Chief Magistrate where- the trial Magistrate said:-

> '' Since it was filed by a layman, court is not sure whether the statutory Notice of 60 days was complied with"

That WSD. the letter dated 30/9/83^from the 4+torney-General's chambers. in any case the defendant did not deny service of such Notice on his The learned counsel submitted that the~above statement was misplaced because there was evidence-by-affidavit dated 11/1/84 by Aron Bisiru one of the Appellants showing that the statutory Notice was-'-served on the Administrative Secretary Rukungiri on 20/10/82. That it was erroneous for the trial Magistrate to have ignored that affidavit in preference for

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do so. of the In the instant case, But. no copy when he said. truthfulness of the affidavit before ho could act on it. of the alleged statutory Notice was annexed to the deponent's affidavit,. Consequently the Ag\* Chief Magistrate chose to disbelieve the affidavit statutory Notice which the deponent claimed served on the^defendant t0-verify \*hc truthfulness of the affidavit# He was perfectly entitled to do that since he must be sure of the He-iS-not bound xo believe everyth© Acr. Chief Magistrate looked for a copy in his affidavit to have f^rm and as such-U Magistrate may disbelieve it affidavit placed before him\* It- is \*0 be no^ed \*ha^an affidavit is evidence in a written^ if he has reason to

xhat and I can no+ fault him on ^uhat. " The words of the plaintiff in the affidavit is not - enough".- - - - He was entitled to

Counsel further^ argued that the defendant's vVSD did not deny service of \*he\_Sta\*utory Notice on it and that it was wrong for the Which letter did not form part of the proceeding. trial Magistrate to have considered that issue which was raised in the letter dated 30/9/83\*

\_It is quite true J-hat the WSD of 21/3/83 did not admit or deny service of statutory Notj.ce on the defendant. But I think the trial Chief de fondant. The defendant in his WSJD denied all the Statements of fact thathave been alleged in the statement of claim. As the fact of service nf Statutory-Notice on the defendant.was not averred in the plaint, I do not see merit in this ground and it must fail. Magistrate was .justified in considering the issue because it was raised in paragraph *h* of Aron Bisiru's affidavit. I think he must have been prompted + 0 be particularly careful about thiS-because the original plaint did not also aver the fact of service of Statutory Notice on the the defendant though-Caroless was .-justified in making that omission.

In ground 3, the .appellant axxacked the Ag. Chief Magistrate as having misdirected himself and clearly misunderstood the provision of

..7.. a local Administration. section l\_0f Act. 20/69 when serve a he held in^effect that it was wrong to statutory^Notice on an Administrative Secretary when the intended defendant is

on page 2 of his Ruling the^trial Magistrate^said. ^.irguing this ground, Mr. Mwebesa contended that an Administrative Secretary was^the right officer t0 be served with a statutory Notice of in+ention to^sue when the intended defendant is a Local Administration. He pointed out that

> ii The Notice though given to the right party is now not on the Rukungiri District Administrationjvhich has never been properly Notified. After all it was Notice to sue a wrong party to wit, Administrative Secretary Rukungiri".

Mr.\_Mwebesa submitted that by the above passage the Ag., Chief Magistrate meant to say ^ha<- it was wrong to serve the statutory Notice of intention to sue on the Administrative secretary when the intended defendant is the District Administration.

must be^no+ed that schedule 1 t0 Act 20/69 tabulates persons to be served with statutory Notice when the intended defendant is one of those shown in section 1^(1) of the Zict. 1 r. The Administrative Secretary of^the administration is the officer to be served with statutory Notice when the Local Administration is the intended defendant.

In the instant case, It would be servece which binds the District Administration. Act 20/69< Rukungiri District Administration. It would be in record with section 1 (1) of mixed up in the above passage of his Ruling. was served^on the^Administrative Secretary Rukungiri District the learned Ag. Chief Magistrate^was surely If the Statutory Notice Administration, it was a proper service if the intended defendant was

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$8:$ $\cdot$

The above passage is in my view contradic+ory +o earlier finding of the Ag. Chief Magistrate in his Ruling. He had found that the defendant was not served with the statutory Notice of intention to sue. He came to his conclusion when he disbelieved the affidavit of Aron Bisiru of 11/1/84 and held that no statutory Notice was served on the defendan+. He did no+ believe +ha+ +he No+ice which +he Plain+iff claimed +o\_have served\_on +he Adminis+ra+ive Secre+ary Rukungiri conformed to the statutory Notice required by section 1 of $Act$ 20/69. There is now no basis for saying that the statutory Notice was served on the administrative Secretary. It is controdictory.

Mr. Mwebesa argued +ha+ since +he righ+ person was served with the statutory Notice but the wrong person was subsequently included as defender: Adminis+ra+ive Secre+ary Rukungiri Local Adminis+ra+ion, there was no prejudice by subs+i+u+ing Rukungiri Dis+ric+ Adminis+ration as +he defendant under 0.1 $r$ , 10 (2) of the CPR.

I agree with the above argument that where a wrong party is improperly joined in a proceeding, such an error can be corrected by an appropria+e amendmen+. Such amendmen+ is possible under 0. 1 r. 10 (2) and 048 r. 1 of CPR. I however hasten to add that this is only possible if the proceddings is in the first instance properly before court.

In the instant case, this court as a first appellate court is under a du+y +o subjec+ +he en+ire evidence on record +o an exhaus+ive scrutiny to arrive at its own conclusion. The evidence available on record here is the affidavit of arch Bisiru of 11/1/84. It shows that Statutory Notice was served on the Administrative Scoretary Rukuncini on 20/10/82. That after such wervice the Administrative Secretary in $\angle$ letter

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## $: 9 : :$

$($ convened a meeting in his office to which he invited amchest others the Chairman General purpose committee rato discuss the land issues with a two wed that convol on

, where the pointed of a state of state. The must be $\mathcal{L}$ $\mathcal{A} = \mathcal{A} \mathcal{A} = \mathcal{A} \mathcal{A}$ It must be $\int$ cut that A Statutory Notice which is required under sed+ion 1 of ac+ 20/69 is a document which must take a particular and prescribed form. It is a level document to be drawn in a particular in a particular particular particular particular particular particular particular particular particular particular particular particular particular p professional form. The imposing question here is was this the type of documen+ which +he depenen+ served on +he administrative Secretary of Rukungiri Local Adminis+ration on 20/10/82? The answer is that we are. not sure. It was up to the appellant to show that it was the night document which was served on the Administrative Secretary. This could have been done by annexing a copy thereof to the affidavit in support of the application for leave to amend. But this was not done. He chose to arnex only the administrative Secretary Letter. This casts doubt as to whether the document which was served on the Administrative Secretary Rukungiri District Administration on 20/10/82 was infact a statutory Notice within the meaning of section 1 of Act 20/69. This was the reason which led the Ag. Chief Magistrate to disbelieve the depenent's afficult. I agree with him considering the technical farm of the Notice and the fact that it was drawn by a layman.

If a statutory Notice was not served on the defendant, then the subsequent suit was not properly instituted in court and therefore no amount of amendment to the plaint can put it right. For this reason, +his ground must also fail.

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Chief Magistratefailed to ^x to^put right what Ground\_four is that the learned Ag. appreciate that the purpose to amend the plaint was the laymen^should have set out in their original plaint so. as to enable the court to effectively dispose of the case. Arguing this groundj Mr.-Mwebesa-Contended that since^the statutory Notice was served on the right party the subsequent inclusion of the wrong party as the^-\* ' defendant did not^prejudice Rukungiri District Administration and that the intended amendment was necessary +0 correct those errors. c

It is therefore not necessary to repeat it here. I should like tn point out 4-hat this point has already been covered in the discussion of ground J.

when^the lc\*\*or does nob That it was wrong for the learned Chief Magistrato to have believed that letter which did not. form part of the court^ proceodings\_in preference t0 Aron Bisiru's affidavit which formed part of the court proceeding. Grounds 5 and 6 are in effect \*ha\* the learned Ag. Chief Magistrate /on erred in relying—and treating as an amended WSD. Isabirye's Le+ter of 30/9/83 in preference to an affidavit which forms part, of the proceedings

It suffices to add here that while it was wrong for <-he Chief Magistra+e tO-have mado^refcronco to the letter of Isabirye^ofA30/9/83 which did not form part of the proceedings I am of ⁴-he-view that they did no⁺ occasion any miscarriage of justice because the issue of service of the statutory Notice was raised /too It must be pointed out here that this point -4- have already been discussed when discussing ground 2.

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in the appellant'^s affidavit. In \*hat case the trial Chief Magistrate was^bound \*o~consider i\*. For all the reasons riven above, The Appeal I make no order as to cost accordingly dismissed. since the Respondent did not appear. mnst fail, It is

G. M. OKELLO

JUDGE.

V5/92.

of Mr. Stanley Boycndera Judgment delivered in chamber in '■he presence Tst Appellant and Felix Komakech court clerk.

JUD^E. 4/5/92. 'OKELLO gPm?