[2013] UGCA 2049

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA, AT I(AMPALA

## CIVIL APPEAL NO. 016 OF 2OO4

THE CITY COUNCIL OF KAMP APPELLENT

#### AND

### CRESTED CRANE TOURS AND TRAVEL LTD:::::::::::::::::: RESPONDENT

# CORAM: HON JUSTICE SOLOMY BALUNGI BOSSAJA; 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"t August 2003 in Civil Suit No. 966 of 1999.

The appellant was the defendant in the original suit and in which judgment was entered in favour of the respondent2ll8l2003.

At the hearing of this appeal Mr. Bernard Mutyaba Ssempa appeared for the appellant and Mr. Benson Tusasiirwe appeared for the respondent.

lnitially there were three grounds of appeal set out in the Memorandum of Appeal. However, at the commencement of this appeal tvlr. Mutyaba Sempa learned counsel for the appellant withdrew grounds 2 and 3leaving

only ground one for determination. I must state that learned counsel for the appellant rightly withdrew the grounds because they were too general and offended, in my view the provisions of Rule 86 of the Rules of this court. Had he not withdrawn them I would still have been inclined to strike them out.

Therefore, there is left only one ground for determination in this appeal, that is ground one, which states as follows:

(l) "The learned trial judge erred in law and in fact when he made a finding that the appellant was duly serued with the statutory notice.".

It is not in dispute that the appellant is a statutory body, a Local Government, and as such the respondent was required to serve upon it a Statutory Notice of lntention to sue under the provisions of the Civil Procedure and Limitations (Miscellaneous Provisions) Act.

Counsel for the appellant urged that the appellant was not served with a Statutory Notice of lntention to sue. That no evidence whatsoever was adduced 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 81211999, it was never effectively served. However, he conceded that a copy of the notice was annexed to the plaint. He also conceded that it bears a stamp of appellant's legal department, the City Advocate's Office.

He urged that, the stamp and signature as indicated on the copy of the notice were not enough to prove effective seryice upon the appellant. Counsel contended that the mode of service of a Statutory Notice of lntention to sue is set in Regulation 26 of the third schedule of the Local Government Act, Cap 243 which provides that summons and notices or other documents required to be served upon a District or urban councils shall be served by delivering it to or by sending it by registered post to the Chief Administrative Officer or the Town Clerk.

He relied on the case of Micheal Sansa and others veftius Kampala City Council (HCCS No 482 of 1999) (unreported) in which the High Court held, in that particular case, that a notice served which was on 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 of 2002,) which cited the case of Micheal Sansa and others Versus Kampala City Council (Supra) with approval.

ln reply learned counsel for the respondent urgued that, the service was effective. He contended that service upon the City Advocate was effective service upon the Town Clerk. He urged that although the matter was framed as an 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 finding of the learned trial judge.

It is trite law that failure to serve a Statutory Notice of lntention to sue upon government, Local Government or scheduled Corporation, before filing a suit, renders the whole suit incompetent. See: Kampala City Council Versus Nuliyati [1974] EA 400.

The Mode of Service of the Statutory Notice is set out under Rule 26 of the third schedule of the Local Government Act Cap 243 which provides as follows:-

"26 Mode of Seruice of summons etc

(l) Any summons, notices or other document required or authorised to be serued on a district, urban or sub-county council shall be serued by delivering it to or by sending it by registered post addressed to, the Town Clerk, Chief Administrative Officer or Chief of the subcounty of the council."

It was contended by counsel for the appellant that there was none compliance with this rule as service was never affected on the Town Clerk, therefore there was no effective service. However, in his submission before this Court he conceded that the City Advocate was an agent of the Town Clerk and that service upon him would be effective service.

I entirely agree that service upon the City Advocate{ is effective service upon the Town Clerk.

lndeed this 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) which was cited and relied upon by the counsel for the appellant. At page 8 of his judgment he states as follows:

"lf service had been effected on the Advocates, it would have been effective seruice for the purpose of Regulation 26, see lmpact Proces Ltd (Supra). This is because a City Advocate is a clear agent of the Town Clerk, who is known to be responsible for legal matters of the City Council". (Emphasis mine)

ln the case of lmpact Process Ltd Vs City Council of Kampala HCCS No ⁹²⁹of 1997 (unreported) . Hon J. H. Ntagoba (P. J) (as he then was) held that service upon the City Advocate was effective service upon the Town Clerk. He however struck out the suit, as the Statutory Notice in that particular case had been served upon a filing clerk in the office of the City Advocate. Clearly therefore the issue for determination in this appeal is whether the learned trial judge erred when he held that there was effective service upon the City Advocate as an agent for the Town Clerk.

ln the case of lmpact Process Ltd Vs City Council of Kampala (Supra) evidence was adduced to show that service had been effected on a filing clerk.

ln the case of Micheal Nsansa and others Versus KCC, (supra) it was shown by evidence in court that service had been effected on one Esther a clerk in the City Advocates Office. Court rightly found that there was no effective service upon the City Advocate.

ln the case of City Division of Rubaga Versus Jimmy Muyanja, (Civil Appeal No. 14 oI2OO2). (unreported)

This court was required to determine an issue that had been raised at the trial which had not resolved by the trialjudge. That is:

"Whether the Statutory Notice had been serued upon the appellant in that case."

ln that case the matter had been brought in issue by way of preliminary objection. 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 service delivered the document to the Secretary of the Town Clerk at the reception of the Town Clerk's Office and a gentleman signed her delivery book.

ln her lead judg ment, 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 effective seruice. Be that as it may, I am not convinced the seruice was effected on the appellant because of the following reason:

Firstly, the Statutory Notice which is annexture A in reply to the respondent's written statement of defence and the delivery book exhibit P5 does not bear either a known s ature of the Assistant Town Clerk or the appellant's stamp.

Secondly, PW2's testimony is that she typed the Statutory Notice on 3d August 2000 and serued it on the appellant on the same day. However, the Statutory Notice is dated l"t August 2000.

Thirdly, PW2 testified in cross examination that she does not know what a Statutory Notice is. lt is possible that if she serued any document to the appellant it might have been something else and not a Statutory Notice."

Clearly from 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 correctly found that there was no effective service.

The above case is clearly distinguishable from the one from which this appeal arises. ln this case Paragraph 4 of the plaint specifically avers that

"The Statutory Notice of lntention to Sue was duly serued upon the defendant. lt is annexed to the plaint as annexture 'F'."

Annexture 'F' bears a rubber stamp with the following inscriptions:

LegalDepartment City Advocates Office 12 Feb 1999 P. O. Box 7010 Kampala

The stamp also bears a signature. ln the appellant's written statement of defence which has only 4 paragraphs none of them specifically traverses paragraph 4 of the plaint. Paragraph 2 of the written statement of defence simply states that paragraph 4 of the plaint is denied.

At the hearing of this appeal Mr. Mutyaba Sempa strongly argued that paragraph 3 of the written statement of defence effectively traversed paragraph 4 of the plaint. Paragraph 4 of the written statement of defence reads as follows:

"The suit is barred by Act 20 of /969 and the Local Government Act, 1999 and the defendant will move court at or before the hearing that it be struck out with costs."

When the hearing of the case proceeded at the trial, Mr. Mutyaba Sempa who was is also counsel for the plaintiff, now appellant did not raise any preliminary objection at all, in regard to the Statutory Notice. The issue, whether or not the suit was barred by statute was never raised as a preliminary objection neither was it framed as an issue. lt seems to have been abandoned.

The issue of the service of Statutory Notice was framed as an issue at the scheduling conference. The Statutory Notice was not listed among "agreed documents" at the conferencing.

The suit then proceeded with the testimonies of witnesses.

The plaintiff called three witnesses and the defendant now appellant called one witness. None of the witnesses testified on the issue of service of the Statutory Notice at all. Counsel for the defendant then did not raise it at all in the cross examination.

Surprisingly, both counsel submitted on the issue in their written submissions.

ln his submission on appeal Mr. Mutyaba Sempa did not deny knowledge of annexture '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 conceded that service on the City Advocate was effective service on the Town Clerk 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 be effective seruice.

He relied on the authorities of the City Division of Rubaga Versus Jimmy Muyanja Civil Appeal No 14 of 2002 (Court of Appeal) (unreported). (supra) and Micheal Nsansa and others Versus KCC (HCCS No 482 of 1999). (unreported).

I have already noted that in these two cases the facts are clearly distinguishable from those from which this appeal arises. ln both cases cited above, evidence was adduced as to service, witnesses were called and cross examined.

However, in this particular case before me, the judge and the parties seem to have accepted annexture 'F' to the plaint as part of the evidence at the trial. The only issue was its evidential value.

The learned trial judge was satisfied that the Statutory Notice was received, stamped and signed in acknowledgement of receipt by the legal department of City Advocates Office, Kampala on 12th Feb 1999.

ln my view annexture 'F' was prima facie evidence of service. Since, the respondent had presented prima facie evidence of service, in my view he discharged his evidential burden. The evidential onus then shifted to the appellant. The onus shifted to the appellant to show that service was not effective. lt 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 this court.

It was, upon the appellant to show or prove that the stamp was a forgery or the signature was unknown. He did not. I hasten to add that because he had not 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 that as it may, he ought to have raised the issue at least in cross examination. He did not.

It is trite law that one who alleges must prove. The burden of proof therefore lies on the plaintiff. However, once this burden is discharged, the evidential burden shifts to the defendant, or respondent as the case may be.

ln the case of Col (Rtd) Dr. Besigye Kizza Vs MuseveniYoweri Kaguta and another, Supreme 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.

'As far as the shifting of the burden of adducing evidence is concerned, it is stated in Sa\*er's Law of Evidence Vol 1, 14n edition Reprint 1997, pages 1338 - 1340 as follows:

It appears to me that there can be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies.

What 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 there is no evidence. Stoney Vs Eastborne Rd Council (1e27) I ch.367,397"

ln the same case Besigye Vs Museveni (supra) Justice Tsekooko JSC states on page 143 of his judgment.

".... Once the petitioner had proved fabrication and falsity, the burden shifted to first respondent to prove otherwise"

See also the judgment of this court in the case of James Mboijana Vs Caroline Mboijana (CivilAppeal No 87 2002) unreported."

ln my view, the respondent discharged his burden when he produced a copy of the Notice of lntention to Sue, duly stamped and signed as already indicated above. At that point the evidential burden shifted to the appellant to prove that the notice was never received. He failed to do so. ln fact he opted not to challenge the service both in his written statement of defence and in cross examination.

Consequently, the evidence on record as to service of the notice remained unchallenged. This is how this case is distinguishable from that of Micheal Ssansa (supra) and that of Jimmy Muyanja (supra).

Suffice it to say, I entirely agree with the reasoning and conclusion of the learned trial judge on this issue.

1,2

This ground therefore must fail. Since it is the only ground for determination, this appeal fails, and it is accordingly dismissed with costs, in this court and in the court below.

Dated at Kampala, this day of September 2013.

Kenneth Kakuru JUSTICE OF THE COURT OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 016 OF 2OO4

THE CIry COUNCIL OF KAMPALA. APPELI. ANT

#### AND

CRESTED CRANE TOURS AND TRAVEL LTD ....,...... RESPONDENTS

CORAM: HON. IADYJUST|CE SOLOMY B. BOSSA, JA;

HON. JUSTICE RICHARD BUTEERA, JA

HON. JUSTICE KENNETH KAKURU, JA

### JUDGEMENT OF LADY JUSTICE SOLOMY B. BOSSA, JA

I have had the opportunity to read the draft judgment prepared by my brother Hon. Justice Kenneth Kakuru. I agree that the only issue for determination by this court is whether statutory notice was effectively served by the respondent on the appellant. ^I totally agree with his reasoning and the disposition. I have nothing useful to add.

Dated at September 25,2013

Solomy Balungi Bossa

JUSTICE OF APPEAL

# THE REPUBLIC OF'UGANDA IN THE COURT OF APPEAL OF UGANDA AT AMPALA CIVIL APPEAL NO. O16 OF 2OO4

## THE CITY COUNCIL OF KAMPALA::::::::::::::::: APPELLANT

## AND

## CRESTED CRANE TOURS AND TRAVEL LTD RESPONDENTS

# CORAM: HON. LADY JUSTICE SOLOMY B. BOSSA, JA; HON. JUSTICE RICHARD BUTEERA, JA HON. JUSTICE KENNETH KAKURU, JA

## JUDGEMENT OF JUSTICE RICHARD BUTEERA, JA

I have had the benefit of reading in draft the Judgment prepared by my learned brother Hon. Justice Kenneth Kakuru, JA in this appeal. I agree with the same and do not intend to add anything.

Richard Buteera JUSTICE OF APPEAL COURT