[2004] UGCA 40

#### 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 S. G ENGWAU, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO. 14 OF 2002

# THE CITY DIVISION COUNCIL OF RUBAGA :::::::APPELLANT

#### **VERSUS**

#### **JIMMY MUYANJA :::::::::::::::::::::::::::::::::::**

[Appeal from the judgment and order of the High Court at Kampala (Mwondah J) dated in High Court Civil Suit No. 1758 of 2000]

#### JUDGMENT OF C. N. B. KITUMBA, JA 20

This is an appeal against the judgment of the High Court (Mwondha J) dated 14-1-2002 whereby the appellant, which was the defendant was ordered to pay to the respondent the following:

- General damages of Shs. $20,000,000/$ = plus interest of $(a)$ 10% from the date of judgment till payment in full. - Exemplary damages of Shs. $5,000,000/=$ and $(b)$ - Costs of the suit. $(c)$

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The following are the brief facts leading to the appeal.

In the morning of 28^th day of July 2000 the respondent, who was the plaintiff at the trial, was going to work. The servants' employees or agents of the appellant in the course of their employment stopped him. They demanded from him a graduated tax ticket of 2000, which he produced. They also demanded from him the graduated tax ticket of 1999, which he was unable to produce. He, however, explained to them that he had paid graduated tax for the year 1999 though he was not

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legally bound to do so because he was not resident in Uganda then. He further explained that he had not carried the ticket with him but would be able to produce it within six hours if they released him.

The agents/officials/employees of the appellant instead of granting the respondent's request, roughed him up assaulted him and locked him up for 2Yz hours with twenty strangers. By use of his mobile phone he contacted his lawyer and relatives. At that time the agents/officials/employees of the appellant were ridiculing him that he was wasting money on the mobile phone instead of paying graduated tax. They said that they would knock the English out of his head. Later his people brought him the graduated tax of 1999 and he was released.

The respondent filed a suit against the appellant seeking for general and exemplary damages for torts and violations of his constitutional rights committed by the servants and I or employees agents of the appellant for which the appellant was vicariously liable. In paragraph 12 of the plaint the respondent averred that notice of intention to sue was duly served on the appellant.

In its written statement of defence the appellant denied most of the averrements contained in the plaint regarding tortuous acts allegedly committed against the respondent. The appellant specificaliy denied paragraph 12 of the plaint regarding service of the statutory notice. It averred that it would pray at or before the hearing that the suit be dismissed with costs. The appellant filed a reply to the written statement of defence.

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In paragraph 2 of that reply it averred that the statutory notice to sue dated l"t August 2000 addressed to the Assistant Town Clerk of City Division Council, Rubaga Division. It was copied to the Town Clerk Kampala City Council. It was served on the Assistant Town Clerk of Rubaga Division on 3.d August 2000 under delivery No. 030 and on the Town Clerk of Kampala under Delivery No. 029 of 4tt August 2000. The notice was attached and marked Annexture "A".

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Before commencement of the hearing Mr. Nerima, learned counsel for the appellant raised a preliminary point arising out of paragraph 12 of the plaint. Counsel stated that his client had never been served with the statutory notice, which is mandatory according to the provisions of section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 7969. He submitted that according to regulahon 26 of the 3.a schedule to the Local Government Act the statutory notice should have been served on the Principal Assistant Town Clerk of the Division. He argued that there was no evidence of such service.

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Mr. Kangwamu, learned counsel for the appellant, disagreed. He submitted that the statutory notice had been served as per averrements in paragraph 2 of the rejoinder to the written statement of defence. He submitted that evidence would be produced to prove service of the statutory notice.

In her ruling, the learned trial judge considered the relevant law and authorities, which were quoted by counsel. She held that the point of law which counsel for the appellant had raised

would be decided after the evidence had been adduced. She accordingly dismissed the objection and trial proceeded. Both sides called evidence. The learned trial judge decided in favour of the respondent as already stated, hence this appeal on six grounds namely; -

- $"1.$ The learned trial judge erred in law and in fact when she failed to make a finding on whether a statutory notice had been served. - 2. The learned trial judge erred in law when she held that $10$ the respondent's arrest and detention was unlawful. - 3. The learned trial judge erred in law when she made findings of fact without evidence to support them. - 4. The learned trial judge erred in law when she held that general damages are just presumed by court. - 5. The learned trial judge erred in law and fact when she awarded exemplary damages.

### 6. The learned trial judge erred in law and in fact when she awarded excessive damages."

The gist of counsel's complaint in ground 1 is that the learned trial judge erred in law and in fact when she failed to make a finding whether the statutory notice had been served.

On this ground counsel submitted that at the beginning of the trial the appellant raised a preliminary objection that no 30 statutory notice had been served as required by section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 20 of 1969. In her ruling of $17/8/2001$ the learned trial judge dismissed the objection and ruled that the respondent be given a chance to produce evidence of service of the required notice.

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However, at the end of the trial, the learned trial judge did not evaluate the evidence of service and make a finding.

Counsel submitted that the respondent had in arr attempt to prove due service ca-lled Arineitwe Betty, PW2. In counsel's view her evidence did not prove service because she testified that she delivered the document to the secretary of the Assistant Town Clerk at the reception and a gentleman signed her delivery book (Exhibit P5). In cross-examination she stated that she had been instructed to deliver the notice to the Assistant Town Clerk of Rubaga Division whom she did not know. She testified further that she did not know the office of the Assistant Town Clerk. She did not know his name and had never seen him before. Similarly she did not know the secretary to the Assistant Town Clerk and the person who signed her delivery book. Counsel argued that in the instant case the statutory notice should have been served on the Principal Assistant Town Clerk of Rubaga Division. He referred to Michael Sensa and Others V Kampala City Council HCCS No. 482 of 1999 (unreported).

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In reply counsel for the respondent disagreed. He submitted that the appellant's counsel had abandoned the issue of service of the statutory notice. He was present when the issues for determination by court were being framed but did not raise the issue of service of the statutory notice. He must have abandoned that issue, in view of the learned trial judges ruling.

Now the issue for determination, which was not resolved by the learned trial judge in her ruling, is whether the statutory notice was served on the appellant. In order to answer the same, one

has to examine the law concerning the matter and the evidence, which was adduced.

The statutory law provides that before a suit is filed against the appellant, which is a local government authority, a statutory notice had to be served. There is a duty to serve the statutory notice on the respondent. Failure to do so renders the whole suit incompetent. See Kampala City Council V. Nuliyati [1974] E. A. 400. Statutory law provides the mode of service. Section 2 on the of the Civil Procedure and Limitation (Miscellaneous Provisions) Act provides that the statutory notice has to be delivered.

The specified officer in the schedule is the Town Clerk. However in this case as the appellant is a Division of Kampala City the Assistant Town Clerk of the division is the responsible officer who should have been served.

Rule 26 of the third schedule to the Local Government Act (Cap. 243) provides the mode of service on such an officer as

follows:

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#### "26 mode of service of summons etc

- Any summons, notice or other document required or $(1)$ authorised to be served on a district, urban or subcountry council shall be served 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. - In my view the above rule requires that the Town Clerk should 30 be served personally or served by registered post. I agree with the holding in Michael Sensa and Others V Kampala City Council HCCS No. 482 of 1999 (unreported).

The evidence of service, which was adduced by the respondent, was from Betty Arineitwe PW2. PW2 testified that on 3'd August she went to the offices of Rubaga Division where she delivered the notice to the secretary in the office of the Assistant Town Clerk and a certain gentleman whom she did not know signed her delivery book.

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I do not agree with the submission ol the appellant's counsel, that PW2's evidence should not be believed because she did not know the office of the Town Clerk of the appellant and did not also know the Assistant Town Clerk and his secretary. Personal knowledge of the person to be served is not necessary for effective service. Be that as it may I am not convinced that service was effected on the appellant because of the following reasons. Firstly; the statutory notice, which is Annexture "A" to the reply to the respondent's written statement of defence and the delivery book exhibit P5 do not bear either a known signature of the assistant town clerk or the appellant's stamp. Secondly, PW2's testimony is that she typed the statutory notice on 3.d August 2O0O and served 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. It is possible that if she served any document to the appellant it might have been something else and not the statutory notice. I am, therefore, inclined to believe that there was no mandatory service of the statutory notice on the appellant before the suit was filed against it. This rendered the suit incompetent. Ground t has merit and succeeds.

My finding on ground 1 disposes off the whole appeal and there is no need to consider the rest of the grounds.

In the result I would allow the appeal with costs to the appellant.

/( 7t-Dated at Kampala this day of oo4.

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t0 (-r-'Lr\ C. N. B. KITUMBA, JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

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

### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO. 14/2002

#### THE CITY DIVISION COUNCIL OF RUBAGA:::::::::::::::::::::::::::::::::::

**VERSUS** JIMMY MUYANJA:::::::::::::::::::::::::::::::::::

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

I had the benefit of reading in draft, the judgement prepared by C. N. B. Kitumba J. A, I agree with her that the appeal succeeds on only one ground.

Failure by the respondent to comply with the mandatory laid down procedural was detrimental to his suit. Since S. G. Engwau J. A also agrees that the respondent's suit was rendered incompetent for want of effective service on the appellant, the appeal is allowed with costs to the appellant.

DATED at Kampala on this --18th --------day of Mach 2004.

HON. LADY JUSTICE L. E. M./MUKASA-KIKONYOGO DEPUTY CHIEF JUSTICE

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

### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. JUSTICE S. G ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

### CIVIL APPEAL NO. 14 OF 2002.

#### **BETWEEN**

### THE CITY DIVISION COUNCIL OF RUBAGA == APPELLANT

#### AND

**JIMMY MUYANJA ================= RESPONDENT**

(Appeal arising from the judgement and orders of the High Court at Kampala (Mwondah, J.) dated 14^th January, 2002 in HCCS No. 1758 of 2000).

### **JUDGMENT OF HON. JUSTICE S. G. ENGWAU, JA.**

I have had the benefit of reading in draft the judgment of Kitumba. J. A and agree entirely that this appeal be allowed with costs on the sole ground that the appellant was not served with the mandatory statutory notice in accordance with the provisions of section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, 1969. The technicality involved in this appeal is very much regrettable.

I have nothing useful to add.

Dated at Kampala this $\frac{18th}{18}$ day of March 2004.

Jagran Hon. Justice S. G. Engwau Justice of Appeal.