[2007] UGCA 78


# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### CIVIL APPEAL NO. 67 OF 2001

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| | SALIM JAMAL | | |----------------|--------------------|------------------------------| | 2. | SHABIR ABJI | | | 3. | AL NOOR JAMAL | }:::::::::::::::::APPELLANTS | | $\overline{4}$ | UGANDA OXYGEN LTD. | |

### **VERSUS**

## B. E. SHAMJI::::::::::::::::::::::::::::::::::::

#### 20 [Appeal from the Ruling of the High Court (Ogoola J) dated 5/6/2001 in H. C. C. S. 282 of 1994]

# JUDGMENT OF KITUMBA, JA

This is an appeal against the ruling of the High Court dismissing the preliminary objection which was raised by counsel for the appellants that service had not been affected on them within time.

The facts giving rise to this appeal are that the Supreme Court in its judgment dated $14/4/1997$ in Civil Appeal No. 64 of 1995 ordered a retrial of High Court Civil Suit No. 282 of 1994. It made five orders and one of them was that the amended plaint was to be filed and served on all the four

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defendants (who are within 21 days from the present appellants ) of the decree. the date o

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On 29/4/7991 counsel for the respondent (who is the plaintiff in HCCS No. 282/94) prepared and filed an amended plaint, Summons were j-ssued on 2/5/L997 and one Augustine Mukasa, a process server, went to the defendant's place of work to serve them. He was told that the appellants were out of the country. On 5/5/7991 the process server went to the chambers of M,/s Katureebe, Twinomukunzi Company Advocates and served Mr. Babigumira as counsel who had represented the appellants in the Supreme Court. Mr. Babigumira declined service. However, the process server left the summons with him. On the same day Mr. Babigumira wrote to counsel- for the respondent stating that he could not accept service because he did not have instructions. He returned the summons and copj-es of the amended plaint to the respondent's counse1. Counse1 for the respondent sent the process server to M/s Muhanguzi & Co. Advocates, the lawyers who had previously represented the appellants 1n the High Court. M/ s Muhanguz j- & Co. Advocates, too decl-ined service. Counsel- for the respondents successfully applied for substituted service. On 22/72/1991 the summons and the plaint were published in the East African and in the New

Vision newspapers. Then Mr. Babigumira entered appearance and filed a written statement $of$ defence for the appellants.

When the case came up for hearing in the High Court the appellants' counsel raised a preliminary objection. He stated that there had never been due service of the summons to enter appearance on the appellants because the substituted service was effected after the lapse of 21 days. The time within which the Supreme Court had ordered to serve the appellants had been exceeded. The respondent had not applied for extension of time. There had been no application for change of the mode of service. The learned trial judge dismissed the preliminary objection. He found that counsel for the appellants, was duly served.

- Dissatisfied with the learned trial judge's $20$ ruling, the appellants have filed the appeal in this court on the following grounds: - ".1. The Learned Trial Judge misconstrued the Judgment and Decree of the Supreme Court as regards service. - Trial Judge misconstrued the 2. The Learned Judgment and Decree of the Supreme Court as regards the Rule of Procedure to be complied with.

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- 3. The Learned Trial Judge erred in law and fact when he held that there was service within the time set by the Supreme Court. - 4. The Learned Trial Judge erred in law and fact when he decided the Application on a matter that was not argued before him. - 5. The Learned Trial Judge erred in law and fact when he overlooked the inconsistency between Augustine Mukasa's Affidavit of Service dated 5^th May 1997, and the Affidavit in Support of Chamber Summons dated 7^th May 1997. - 6. The Learned Trial Judge erred in law and fact when he held that it was not necessary for the Plaintiff to seek for extension of time and verification of the mode of service of the Supreme Court. - 7. The Learned Trial Judge erred in law when he held that the High Court has powers to vary/alter the terms of the retrial set by the Supreme Court."

Counsel for both parties were permitted by court to file written submissions. M/s Babigumira and Company Advocates represented the appellants and M/s Kalenge Bwanika Kimuli and Company Advocates were counsel for the respondent.

his submissions learned counsel for the Tn appellants argued the seven grounds of appeal in two batches. In the first batch he dealt with grounds $1,2,6$ and $7$ together and in the second batch he argued grounds $3,4$ and $5$ jointly.

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I wr11 deal wlth the grounds in the same order beginning with t.he second batch. The gist of counsel's complaint in grounds 3, 4 and 5 is that the learned trial judge erred in law and in fact to hold that counsel who represented the appellants during the hearing of the appeal in the Supreme Court was served withln 21 days.

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Counsel contended that the learned trial judge was wrong to find that the appellantrs former counsel had been served. He submitted that the case for the respondent, as argued by counsel, was that there was an unsuccessful attempt to effect service on the appellant's former counsel. Vihen that failed he resorted to substituted service. The respondent had, therefore, waived his right to rely on service to former counsel and was estopped form doing so. H€, further, submitted that counsel for the respondent simply mentioned an attempt to serve appellants' former counsel. Counsel argued that where a party seeks to rely on an act or set of facts she or he has to press and argue the same and that mere mention is not enough. Counsel- criticised the learned triaf judge for deciding the preliminary objection on a point that was not put and argued before him. l0 l0

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He submitted that the learned trial judge was wrong to hold that as no prejudice had been caused to the appellant, servj-ce was proper. Counsel argued that the issue of prejudice does not come i-nto the determination of the competence of service of process.

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In support of his submission he relied on Erukana Kawuma V Mehta [1960] E. A 305. Elikana - Omuchilo V Ayub Machiwa t19561 E. A. 299. Horizon Coaches Vs Francis Mutabazi and 3 others Civil Appeal No. 20 of 2001 Supreme Court (unreported). Besweri Lubuye Kibuka Vs Electoral Commission & Another Election Petition Appeal No. 2 of 1999 (unreported) .

In rep1y, learned counsel for the respondent contended that when the appellant's counsel was served on 5th May 1997 service was ef f ect j-ve and was within 2l days as the Supreme Court had ordered on 14/4/799'7. Counsel submitted that Mr. Bab!-gumira's letter dated 5th May 1991 refusing service on the ground that he had no instructions was an attempt by him to deliberately delay the course of justj-ce. Counsel urged this court not to a.l-Iow him to do so.

Counsel argued that Court Rufes provides of the Supreme of process on ^a rul-e for t'7 (1) s e rvi- ce

person or any person entitled under rul-e 22 of the same rules to appear on his or her behalf. The advocate is a person entitled to appear on someone's behalf. As the appellant's advocates were served that was proper service.

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Counsel argued that the appellant's had 1n Supreme Court Appeal No. 55 of 1995 given their address as Katureebe, Twinomukunzj- & Co. Advocates. If they wanted to change their address they should have done so accordi-nq to rule 18 of the Rules of the Supreme Court by lodging a notice to that effect and serving it to all those persons who are concerned.

Similarly, if they wanted to change counsel representing them they should have lodged ^a notice to that effect and served it on alf concerned. According to counsel a letter by the appelJ-antrs counsef was not enough to show that they had changed their address or withdrawn instruct j-ons from counsel. In support of his arguments he relied on Mbogo & another Vs Shah t19681 E. A 93, J. Biryo & 5 others Vs Kamanda t19971 HCB 331 Elkan Vs Narshibhai Patel and Another t19501 340

In addition to vehemently denied the that above in his arguments submi s s i-on counsel at the

trial, Mr. Mubiru-Kalenge abandoned the argument that they had effectively served counsel for the appellants. Alternatively, even if the argument had not been raised by counsel the court was entitled to take that fact into account. Thev supported the learned judge in his finding that counsel for the respondent was entitled to believe that Mr. Babigumira was still representing the appellants and were, therefore, right to serve him.

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The Supreme Court ordered that the amended plaint should be filed in court and served on the appellants within 21 days from the date of The procedure, which had to be judgment. followed in serving the appellants, is provided by law. Rule $17(1)$ and $(2)$ provides for service as follows:

20 "17 (1) Where any document is required by these Rules to be served on any person, service may be effected in such a way as the Court may, in any case, direct which shall normally be away in which a comparable process of the High Court could be served; and in the absence of any special direction, it shall be made personally on the person to be served or any person entitled under rule 22 to appear on his or her behalf.

Where any document is required to be $(2)$ served on the appellant or on the respondent and two or more appellants or respondents, as the case may be, are represented by one # advocate, it shall be sufficient if one copy of the document is served on that advocate."

The appellants had given their address of service as Katureebe Twinomukunzi & Co. Advocates. $\mathbf{I}$ agree with the submission of the respondent's counsel that if the appellants had wanted to change their address of service, they should have done so according to the law which is laid down in Rule 18 of the Supreme Court Rules as follows:

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"18. A person who has given an address for service may, at any time, change his or her address for service by lodging a notice of the change in the registry and serving copies of it on all persons who have been served with the previous address."

The law is that service to former counsel for the party is good service. W. Elkan See Narshibhai Patel & another (supra). 20

In his ruling the learned trial judge found that the respondent were right to serve Mr. Babigumira in his capacity as counsel who had represented the appellant before the Supreme Court and who received the judgment of the court. The learned trial judge stated thus:

"There was no evidence at all of counsel 30 informed his clients having ever that subsequent to the Supreme Court's remission of the Applicant's case back to the High Court, he would no longer represent them as their lawyer/agent in this matter. Similarly, there is absolutely no evidence, and none was claimed, that the Defendants ever withdrew

their instructions from their counsel during that period. And there is certainly no document on the record of the Supreme Court or evidencing $of$ the High Court any such withdrawal by counsel from this case in the course of the 3 or so weeks that followed the Supreme Court's judgment."

I agree with the holding of the learned trial judge. I am unable to appreciate the appellant's $10$ counsel's argument that since the respondent's counsel resorted to substituted service after counsel had declined service the respondent should not be allowed to rely on personal service to counsel. I do not see how a superfluous act would render service, which was effective, ineffective. In my view the respondent's superfluous acts are understandable. They were faced with a difficult counsel who was trying to obstruct and delay the course of justice. They 20 went to unnecessary length to make sure that the appellants were served whereas they were already legally and effectively served through that counsel.

Counsel's argument that the learned trial judge decided the ruling on a point, which was not argued before him, is not tenable. I have carefully perused the record and I find that there is no where counsel for the respondent abandoned the argument that appellant's counsel was served. In my view even if that was the case

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the learned trial judge was entitled to evaluate the evi-dence on service and 1f he found that appelJ-ants' counsel- had been served he was justj-fied to hold that there was effective service. Grounds 3, 4 and 5 therefore fail-.

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As the holdj-ng on grounds 3, 4 and 5 dlsposes of the whole appeal I wiIl, therefore, not deal- with qrounds 1, 2, 6 and 7. This appeal is devoid of meri-t. I would dismi-ss i-t wi-th costs to the respondent.

G\_ Dated at Kampala this....... AP day or..lM\*I.'.2003.

C^tS f{'\*f"^ ' C. N. B KITI'MBA WSTICE OF APPEAI

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

## CIVIL APPEAL NO. 67 OF 2001

- $1.$ **SALIM JAMAL** - $2.$ **SHABIR ABJI** - **ALNOOR JAMAL** 3. - 4. **UGANDA OXYGEN LIMITED**

**}:::::::::::::::::: APPELLANTS**

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## **VERSUS**

B. E. SHAMJI::::::::::::::::::::::::::::::::::::

[Appeal arising from the ruling of the High Court (Ogoola J) dated 5/6/2001 in H. C. C. S. 282 of 19994]

### JUDGEMENT OF L. E. M. MUKASA-KIKONYOGO, DCJ

I have had the benefit of reading the Judgement in draft prepared by Hon. Justice Kitumba J. A and I agree with her that for the reasons she gave and conclusions she made, this appeal must fail.

Since Hon. Twinomujuni J. A holds a similar view, by unanimous decision of this Court the Appellant's appeal is dismissed with costs to the Respondent.

Movement 2003. Dated at Kampala this .....

L. E. M. MUKASA-KIKONYOGO DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

## CIVIL APPEAL NO.67 OF 2001

| 1. SALIM JAMAL | | |-----------------|----------------------------| | 2. SHABIR ABJI | | | 3. ALNOOR JAMAL | | | | 4. UGANDA OXYGEN LIMITED } |

# **VERSUS**

**B. E. SHAML....................................** ......................................

(Appeal arising from the ruling of the High Court (Ogola J) dated 5/6/2001 in H. C. C. S. 282 OF 19994)

# **JUDGMENT OF A. TWINOMUJUNI, JA**

I have had the benefit of reading the Judgment in draft by her Lordship Hon. Justice Kitumba J. A.

I agree with it and I have nothing useful to add.

Dated at Kampala this ....................................

Justice A. Twinomujuni JUSTICE OF APPEAL

### **REPUBLIC OF UGANDA**

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORUM: HON LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO.67 OF 2001

1. SALIM JAMAL $\mathcal{L}$ 2. SHABIR ABJI 3. AL NOOR JAMAL }::::::::::::::::::::::::::::::::::::: 4. UGANDA OXYGEN LTD.

### **VERSUS**

B. E. SHAMJI ::::::::::::::::::::::::::::::::::::

[Appeal from ruling of the High Court (Ogoola J) dated 5/6/2001 in H. C. C. S. 282 of 1994]

#### DECREE.

This appeal coming on this $20^th$ day of November 2003 for final disposal before the HON. LADY JUSTICE L. E MUKASA-KIKONYOGO, DCJ, HON. MR JUSTICE A. TWINOMUJUNI, JA, and HON. LADY JUSTICE C. N. B. KITUMBA, JA in the presence of MR BABIGUMIRA for the Appellants and MR MUBIRU-KALENGE for the Respondent.

IT IS HEREBY ORDERED AND DECREED that this appeal be dismissed and that costs be paid by the Appellants to the Respondent.

We approve: sihugg.

BABIGUMIRA & CO. ADVOCATES.

**COUNSEL FOR APPELLANTS**

GIVEN under my hand and seal of this Court this ....................................

REGISTRAR .""1

Extracted bv: KALENGE. BWANIKA, KIMUI-I & CO. ADVOCATES, KBK CHAMBERS. PLOI'IO KAFU ROAD. P. O. BOX 8352. KAMPALA, UCANDA.