[1994] UGHC 61

THE REPUBLIC OF UGANDA

IN THE EIGrI COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 393 OF 1992

JAMIL RAMJI COFFEE TURING CO. LTD . . PLAINTIFF. VERSUS

FOODS & BEVERAGES LTD, . DEFENDANT. isEFORE:- The Honourable Mr. Justice J. W. N. Tsekookc

## RULING

This ruling essentially concerns the claim by Mr. James Matsiko, learned counsel for the defendants, whether or net he was allegedly served by one Kalungi, a law Clerk in the Chambers of Messrs Sebalu & Lule, Advocates for plaintiff.

On 7th February, 199^? according to the court record, this suit was fixed apparently exparte by counsel for the plaintiff for hearing on 28th February, 199^\* Hearing notice was accordingly duly issued for service upon M/S James Matsike, Advocates, Kampala. The date when the notice was signed by the Deputy Registrar does not appear on the hearing notice, but from the fact that court record is showing hearing date was fixed on 7th February, 199^ and the month when the notice was signed is February, 199^1 I have no doubt that the notice was signed and issued on or after 7th February, 199^\* In that case in my view the date 11th January, 199^ appearing on process server's affidavit as the date when affidavit was received in Civil Registry is an error particularly so since the same affidavit is shoun to have been sworn on 11th . February, 199^» in this regard I must warn the Civil Registry staff to enforce the necessity of noting the dates of receiving and filing of any pleadings er affidavits on the relevant court file.

............./2

Mr. Mautsiko- denied eerricp' Pa-r 28ti- Februaryr 199^ when the case was for hearing. He claims he had not been seryei and therefore waanJ^aKare that the case was due f>r hearing until he saw it on the cause list in the New Vision. <f same day. » Hence hia coming to court late. He actually Niftier c^urt at 10.43 a.m. when the first witne-sa for the plaintiff **war** giving, evidence after I permitted the hearing te precee.4 exparta.

Because of Mr. Matsiko\*s denial wf service\* I permitted b>th sides to adduce evidence about service ef the hearing notice,

Mr. G. Lule, 3,0. learned counsel f«r the plaintiff **falle£** Mr> Kalungi, who had purportedly served Mr. Mataikg.

On Oath Mr. Kalungi testified he has been ^a law clerk **in** Chambers of Sebalu & Lule, Advecates, since **17th January\*** 1994, That on 10th February, 1994 he went te the Chambers •f Mr. Matsiko in the morning and was told by Mr. Kamugiaha\* a Legal Assistant there, that Mr. Matsiko wp#ld not be **bvaila.^** bl-a till 3.00 p.m. At that time (3\*\*O p.m.) Kalungi went **baak,** found Mr. Matsiko in Chambers with ^a visitor.

As he came out Kalungi tendered Hearing Notice ta **Mr.** Matsiko who refused tp accept it claiming there was an appeal filed in Supreme C^urt in respect an Order made earlier in this suit. Actually the order had been madp ¹⁶ th December, ¹⁹⁹³ byBgonda - Ntende J. Anyhow Kalungi left a copy ef the hearing notice with Secretary of Mr. Matsiko in presence of Mr. Matsike and proceeded to **swear** affidavit €< service which he filed an court file, fhat affidavit formed the basis of my permitting the hearing

Mr• Matsiko called legal Assistant Mr. Kamugisha to support non service^c Mr. Kamugisha had been in court during the time when Kalungi gave his evidence. Mr. Kamugisha testified. In his own words in examination-inchief, he stated this:

"¹ don't think Kalungi ever appeared in our Chambers and talked to me, I don't remember seing this hearing notice that day".

He repeated this in cross examination and further stated, inter alia, that:-

"Our Chambers are busy, I can't recall how many people visited us ••••••• But I know Kalungi. If he had come, I would remember? That day was not special. So I cannot remember people who visited the Chambers".

In answer to a quertion by court, he stated ''Following his routine, Mr. Matsiko must have come to office after 9\*00 a.m. that day. That was usual"\*

On the basis of that evidence Mr. Lule. submitted that there was effective service. That neither Kalungi nor "himself had known of the jalleged appeal until Mr. Matsiko talked about it in court/ So Mr. Matsiko must have told Kalungi on 10th February, 199^ that there was an appeal while declining to accept service from Kalungi.

He submitted that there was effective service. He maintained, inter alia, that the important point here is communication of a hearing date to the defence counsel and not, as hinted by defence counsel, whether communication was by an unauthorised process server.

Mr. Matsiko on the-other hand submitted that service of this type must be effected by a process server specifically authorised by law. That he had checked with

................. A

Regimer and did not find Kalungi listed amoung authorised process server. He then submitted that (presumably because of service by unauthorised person) hearing of the case must start denove which was epposed by Mr. Lule. The line of submission adopted by Mr. Matsiko imply that he actually was served by Kalungi but that Kalungi was not a process server authorised to effect service.

I watched Kalungi and Kamugisha give evidence about the contested service of the hearing notice. Kalungi was calm firm and appeared to me to be honest. On the other hand I was totally unhapply with the demeanour of Mr. Kamugisha, I don't believe he was being honest to the court. And in any case he was in court during time when Kalungi was testifying. This fact together with his noncommittal manner of his testimony in-chief leaves no doubt in my mind that Kalungi actually visited Mr. Matsiko's Chambers in the morning of 18th February, 1994 and that Kamugisha advised Kalungi to return in the afternoon. I find as a fact that on the facts available Kalungi did serve Mr. Matsiko in the afternoon and that Mr. Matsiko declined to accept service.

On the issue of whether or net Kalungi is an authorised process server or not, Mr. Matsiko did not cross examine Kalungi on this. Nor did he adduce evidence, other than his statement from the bar, that Kalungi is not a process server. Service of hearing notice is governed by 0.5 Rule 8 which deals with mode of delivering of Summons. It states as follows:

0.5 R.8 (1) "Where the court has issued a Summons to a defendant -

- (a) it may be delivered for service: - (i) to any person for the time being duly authorised by court.

- ⁵ - (ii) to an advocate or an advocate's clerk who may be approved by the court generally to effect service of process;"

Service itself is governed by 0.1^ Rule ⁸ and 0.^+5 Rule j 2 of the Civil Procedure Rules.

0.5 Rule ⁸ (\*1) (a) (ii) is relevant in our case. There is no dispute that Kalungi is ^a clerk of an advocate. There is not evidence showing he has not been approved. So I aan't speculate. Prima facie he is capable of effecting service by law.

In the circumstances I hold that Mr. Matsiko was served with a hearing notice which he declined to accept.

I was therefore justified in acting on affidavit of Kalungi.

Though it had not been argued by Mr. Lule, the matter of whether or not hearing should start denovo is simple.

I don't accept Mr. Matsiko's insistance that PW1 should start testify from beginning simply because Mr. Matsiko found when the witness had already started testifying. Nor do I accept his further reasons that his client must hear PW1 testify. These two positions would perhaps be valid if I held that service was defective. But since I believe that service was effective Mr. Matsiko cannot choose how proceedings should be conducted. Otherwise this would give advocates and or litigants who deliberately refuse process service to go to court at any stage of the proceedings and demand for ^a fresh hearing to start. I think the normal practice and proper procedure is for Mr. Matsiko to be allowed to participate in.the proceedings. If he ohooses. he can ask for adjournment to enable him to ............./6

get copy of the record of evidence so far recorded and copies of documentary exhibits for his perusal and briefing by his clients (defendants) before PW1 can continue to testify. Mr. Matsiko will then be in ^a position to take any steps that may appear proper and legally permissible at the resumed hearing.

- ⁶

For the reasons I have endeavoured to give, I think that the defence contentions are misconceived and are r-ejected with costs to the plaintiff.

TSEKOOKO

\*»

JUDGE 1/3/199^.

V3/1994 at 2.33 p.m. Plaintiff present. Lule for Plaintiff. Matsiko, for defendant. Ssensonga'-court clerk. Ruling read and delivered.

*.-'fc 4' c-*TSEKOOKO

JUDGE T/3/1994.