[1992] UGHC 63

The Hon. mr. Justice Lyanda Wende.

## THE REPUBLIC OF WOARDA IN THE HIGH COURT WE DESTROA AT KAMPALA CIVIL SUIT NO. 937 OF 1990

FRANK TURYATUNGA :::::::::::::::::::::::::::::: PLAINTIFS RESPONDENCE VERSUS

DLFLADANT/APPLICANT SIETCO. INTERNATIONAL ::::::::::::::::::::::::: Bi. FORE: The Honourable Mrs. Justice M. Kir ju $R U L I N G.$

This is an application brought under Cr. 3 rr. 3, 24 and 26 of the Civil Procedure Rules. The applicant weeks orders of this court that the judgement entered in it or of the respondent/plaintiff be set sside and the definient/applicant be given leave to enter an appearance and this defence.

The applicant was represented by Nios Icone Mulyagonja of mulira & Co. Advocates and the respondent has represented by Mr. Akamparina of Fateba & Cb. Advocates. The application was supported by the affidavit of Hiu Hong, activation manager of the applicant firm, dated $26/6/92$ . The grounds of the application as narroted in the affidavit and rested by counsel were that although the applicant use buly served, service was effected on one Ar. Wang an amployer of the applicant who soon thereafter left the Country without instructing the Manager or other employees to tring instructions to the advocares of the firm. The applicant cale to know about the suit through ats advocates M/s Muldiev & Co. advocates what it was cause listed for delivery of the jud ement on 23/6/92. It was at this at ge that the split is tructed its lawyers to take an necessary action.

<span id="page-0-0"></span>The last ground was that, the application is used defence to the claim^as police investigations had coveal d that the

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respondent's driver was at fault and therefore negligent. Counsel for the applicant contended that in the oxparte judgement is not set aside the applicant form that the respondent may go ahead to execute judgement paired the applic nt. Counsel prayed that the judgett to actived against the applicant be set aside and the applic nt be given leave to enter appearance and fil- a defence.

Mr. Akampurira in reply submitted that it was not disputed that service was effected and that failure of the defendant to enter ap eurance was due to its own nucligation. Councel submitted that if the defendant/applicant and the rest in appearing the person who was served should nove instructed the lawyers before he left the Country. He refure d court to the case of Zilabamuzule Vs. Andrew Corret & Longa Miver Matate Ltd. MCCS No. 637 of 1981 where Ag. Justics Jennet held that failure to give proper instruction: it an advocate cannot possibly constitute a sufficient cause for non-a curance at the hearing. Counsel contended that the definition counsel were watre of the suit because they were served on 11/3/92 when the suit was being set down for formal proof to oridonced by the affidavit of service on record. Count is samilted that the test was whether the defendant had intended to appear at the hearing and he did his best to do so. Connect cited the . case of Lake Victoria Bottling Company Vs. And may Constance Ruis 's 6 196' in support of this proposition. He will can' that in the present case the defendant just helt the country and did not take steps to see that summons readed him at the hearing of the suit. Counsel submitted to the summons were just filed answ instead of being man to another officer. Counsel contended that the application ac intered to delay the course of justice with a ward therefore be dismissed with costs. $...13$

Miss Mulyagonja in response further submitted that it was not true that there was negligence on para of the defondant by its employee filing the summons away. Counted referred to the case of Zirabamuzale cited. above and a id it was distiguishable from the present case as four work no proper given to the advocate. Council referred instructions court to the case of Zikampata Vs. Uganda Lysin. Trading Co. HCB $\sqrt{1979}$ 52 where summons were served on eig employee of a company who never brought them to the addunction of the Managing Director. An application to not and/o axports judgement was granted as the summans were served on the indicator. Counsel submitted that the defendant and the minkayee are two different people. Counsel further submit. I that court should not have relied on the affidavit of arrvice as it could have been false. Counsel submitted to the through could not have accepted service without instructions.

This application particulary falls under Or. 9 $r.24$ as the respondent in this case has already on and judgment and decree. Or. 9 $r.2^{l_1}$ . is as follows:-

> " In any case in which .. door... is passed exp rte againtt defendant he may apply to the corp by which the decree was passed for an order to set it usual that if he satisfies the court that summens was not duly a.rv.d. or that he was nowented by any sufficient cause from Ly v rong when the sait was called on io hearing, the court small with an order setting oside the Outrie agsinst him....".

$\tilde{\mathcal{L}}$

In order to find out whether the applicate/defondant was duly served with summons it is necessary to stand a the

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$3 -$

"2. ThaT on the 12th November, 1990, I was given summons to did r appearance together with a pleant in the above suit by Mesors KULUBYA AND COMPANY, ADVOCILLIS with instructions to serve the same on SIaTCC InParamillant.

"3. TakT on the same day I wint to the Defendant's premism: W BLOT 19LUTHULI AVERUE, BUCCLCET and served the same on one LANG, Deputy General Man. er, who acknowledged receipt by signing on the original summers and retained together with the plaint, I herewith return the copy of supports".

Upon submission of the affidavit of worker, judgement was entered by the Deputy Cheif Registrar und e Or. 9 r. 6 on 18/2/91. The rules r gulating issue and service of summons are contained in order 5 of the Civil Procedure Rules. Or.5 R. 15 provides that where a duplicate of the summons is only delivered to the defendant personally or to in their or other person or his behalf, the defendant or such a gent or other person shall be required to endorse an admontangement of service on the original suchons. I shall see that a provide to the rule as it is not applicable in this camp. The rules also contain specific requirements for an affid via of convine where summons have been served in accordance with the served in Or.5 r.17 require the serving officer, in all call in which the summons have been served under rule 15 to $\mu/\mathrm{k}_\nu$ or annex. to the original summons an offidavit of service stating the time

$...15$

## $\therefore$ 4 $\cdots$

when and the manner in which the sum-nuns .ervjd, and the name and address of ciu person, if any, in-ifying the person served and witnessing the delivery or c..1 r of summons. The above requirments which must ^b c-.-uplied with pertain to matters of substance and not for:... They ore part and parcel of the contents of th<. affidavit. To comment on these requirments, when they talk of tiro, I think they do not mean exact time but one should stat, the \L. .nd whether it is morning, afternoon, evening or nignt. 1.. the present case the 'affidavit did not state the tin of ?:.;rvic-.j but at least the d-te of service was stated. Tn. ..recess server docs not say who¹ indentified the -Deputy General hen . r to him as the person to be served or whether he kn ^w v.2 \* Deputy General Manager, personally. Looking at the endorse'-ic/.t on the summons there is no indication that the person .vii. .-;rot words "deceived on 12/11/90" and signed in a l.-.ngu. b.ich looks like Chinese was signing on beh.-lf of Sivtc- international, not tf&y so and there Wv.s no bi-.tco stamp affixed. The affidavit swhrn by tn- Assisit General Manager of the applicant company, ..vers that the p-rrsun who was served by the process server ;as an employee '. counsel for the applicant said that he was a clerk. Th- position would n^ve been clearer if the process ^s -rver ⁿ ^d stated who indentified the person served to nim.

although the process server'complied i.itb th-.. second requirment of stating the manner in which tn was served, he failed to comply with the requir...,r.t of giving the name and address of the person, if any,ind vnLiTying the person, served and witnessing the delivery or t ndc-r 'f th summons .and he also did not completely comply wit;. ti...c requirement as he did not stat \*, when service w-.s off.ct. d.

*5*

For the resons I have given above, I find that the affidavit of service sworn by the process Server WSS so defective that this court cannot rely on it to declare that the summons in this suit was duly served. The fridavits of service in support of the hearing notice were also defective they do not state time of service and $tn_{ij}$ r f z is the person served as the Manager, no other particul ro or cach mation as to how he was indentified is given.

The Deputy Chief Registrar therefore world in act ring an interlocutory judgement against the data in v/pplicant as it had not been satisfactorily proved that it had been duly served. Under Or. 9 r. $2^l$ , already referred in above, the court has power to set aside an ex-parts decrea if the defendant satisfies the court that summons was not only conved or that he was prevented by sufficient c.u. from appending when the suit was called for hearing. This works that once the court is satisfied that the defondant as not $\mathrm{d}^u\mathrm{ly}$ served it is unnecessary to go into the marits of the case or to look for sufficient cause for setting asso a guarte judgement. An interlocutory judgement with a plant service of the summans when the defendent a bis difective or not satisfactorily proved is bad in 1 with aught to be set uside as was held in Civil Suit No. 975/77 3. Dimenzo & Vs. Lawrence Kaziro In the present cust in attactus been to have been served on an $\text{im}_{\mathbf{F}}\text{oscor}$ as was in $\mathbb{R}$ , $\mathbb{R}$ on of Zikampanta cited above. I wish to comment with the real party wishes to proceed expirts on the strength of an affidavit of service, the courts should be a grountleus when accepting the affidavit of service to the contains to the rules.

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$6$ .

In the result I shall allow this applic tion, set aside exparte judgment and decree and older that the defendant/ applicant be served with $\tilde{h}$ sn summans within $\tilde{m}$ d yo from to-day so that it can enter appearance and ii. a written statment of defence in the normal manner and 3 tone case be heard on its merits.

The costs of this application will be sented in the cause.

M. KIREJU M. $\frac{J U D G E}{11/9/92}$

## $11/9/92$

$\mathbf{r}$

Miss Mulyagonja - for the Applicant. Mr. Akampurira - for the respondent Fir. Huwonge - Court Clerk. Ruling delivered before the above.

$\frac{11/9/92}{\sqrt{11/9/92}}$

$-7$ --