Court name
Commercial Court of Uganda
Judgment date
9 December 2013

National Forestry Authority v Kasese Cobalt Co. Ltd (Miscellaneous Application-2012/110) [2013] UGCommC 206 (09 December 2013);

Cite this case
[2013] UGCommC 206

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 110 OF 2012

[ARISING FROM MISC APPLICATION NO 37 OF 2012 AND HCCS NO 16 OF 2012]

NATIONAL FORESTRY AUTHORITY}..................................................                                                                                            .APPELLANT

VS

KASESE COBALT COMPANY LTD}.....................................................                                                                                                RESPONDENT

BEFORE HON MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application under Order 36 rule 11 of the Civil Procedure Rules for orders that judgement and decree passed in civil suit number 16 of 2012 is set aside and the Defendant is granted unconditional leave to appear and defend the summary suit. It is further for orders that execution in civil suit number 16 of 2012 is stayed. Finally it is for costs of the application to be provided for.

The grounds of the application are that the Applicant has a liaison office in Kampala. Secondly that the Applicant was served with summons to file a defence and it was received by a secretary in the Kampala liaison office on 17 January 2012 and sent to Kasese where it was received on 19 January 2012. Thirdly the Applicant sent the summons to its advocates on 19 January 2012 the very day of receipt of the summons. Fourthly the Applicant’s advocates put in an application for leave to appear and defend in time on 30 January 2012. Fifthly the Respondent’s advocates received the application in protest on the ground that the matter had been concluded. Sixthly the Applicant’s advocates tried in vain to establish whether the matter had been concluded as they could not find the file of the court. Seventhly the Applicant’s advocates later discovered that judgment in the matter had been passed and is under execution. On the eighth ground, there are triable issues of fact and law and therefore the Applicant ought to be granted extension of time to file an application for leave to appear and defend the suit. Finally that it is just and equitable that the judgement and decree passed in the summary suit is set aside and the execution of the decree is stayed and the time within which to file an application for leave to appear and defend is extended.

The application is supported by the affidavit of Byrd Sebuliba, an advocate practising with Messieurs Shonubi Musoke and Company Advocates. The affidavit confirms on oath the grounds in the application and adds that on 19 January summons were received by Aida who was well known to the Applicants advocates as the rightful person to receive summons. The Applicant put in the application for leave to appear and defend on 30 January 2012 and it was fixed for 14 March 2012. The Respondent’s advocates on being served with the application for leave to appear and defend the summary suit received under protest. Thereafter the Applicant's advocates tried to trace the file to ascertain the veracity of the Respondent's statement but failed to find the file. The Applicant's advocates later discovered that judgment had been entered and was under execution. On 12 March 2012 the Applicant was served with notice to show cause why execution should not issue. The deponent deposes that the mistake of an advocate should not be visited on the Applicant. That there are triable issues of fact and law and the Applicant ought to be granted extension of time to file an application for leave to appear and defend the suit. Finally that it is just and equitable that the orders prayed for are granted.

The affidavit in reply is deposed to by Akampurira Jude Baks of Messieurs Akampumuza and Company Advocates, a legal assistant working with the said firm and stated to be familiar with the facts of the case in which capacity he makes the deposition. Upon perusal of the notice of motion and accompanying affidavits he deposes that the application is riddled with falsehoods and is fatally defective. He asserts that the application is intended to delay the course of justice and is an abuse of the process of court. According to the Respondents and the Applicants had 10 days within which to instruct draft and present to court the application for leave to file a defence but simply chose to engage in dilatory conduct. He deposes that the Applicant filed the application for leave to appear and defend outside the time prescribed by law. In paragraphs 9, 10 and 11 of the affidavit in support of the application, there is no defence averred and therefore it would be in equitable and unjust to aid the Applicant’s disobedience of the law not to file the application within the prescribed time. Finally that the Applicant’s application is nugatory because it was brought in bad faith and is based on obvious lies and has been overtaken by events.

The application was filed on court record on 13 March 2012 and the affidavit in reply was filed on court record on 26 March 2012. On the 16th of May 2012 the Respondent filed skeleton arguments. On 18 August 2012 the Respondent through Peter Muloba filed a supplementary affidavit in reply. He deposes that the Applicants served the Respondents advocates with a hearing notice of the application but the hearing notice has no basis as it purports to arise from civil suit number 16 of 2012 which was determined and execution issued and completed. Secondly that the Applicant is asking the court to set aside the judgement and decree and stay execution of the matter whose execution of the final orders of the court was concluded. That the Applicant participated in execution proceedings during which its lawyers applied for and were granted an adjournment to enable them to show cause why execution should not issue but they never turned up on the appointed day and execution was issued. The Applicant never challenged the orders of execution. Thereafter the Respondent applied to change the mode of execution to garnishee and garnishee proceedings were determined inter partes. The Applicant was effectively served with orders of the court. The Applicant was aware that execution was completed and the principal judge advised the Applicant that execution was completed and that it should follow the judicial process and file an application and further undertook to have it heard immediately during court vacation if it had any basis but the Applicant failed to do so. Consequently the deponent deposes that continuing with this application is a waste of courts available time and an abuse of the process of this honourable court.

The Respondents Counsel objected to the application on preliminary points. And objections were overruled by the court on 25 September 2012 and application proceeded for hearing on the merits. Counsel Peters Musoke represented the Applicant while Dr James Akampumuza represented the Respondent. On 21 August 2013 it was agreed that Counsels would address the court in written submissions. The court directed that submissions be restricted to 5 pages each.

The Applicant filed written submissions of 6 pages while the Respondent filed a reply of 23 pages in disregard of the directives of the court. This is in addition to its skeleton arguments filed on the 16th of May 2012 comprising of four pages.

In the written submissions the Applicant addressed three issues namely:

  1. Whether the judgment and decree that was entered against the Applicant as well as execution should be set aside.
  2. Whether the Applicant is entitled to leave to appear and defend civil suit number 16 of 2011.
  3. Whether the Applicant is entitled to any remedies.

Whether the judgment and decree that was entered against the Applicant as well as execution should be set aside?

I will consider the first issue first as its resolution would determine whether to consider the other issues. The Applicants Counsel submitted that service of summons means service of summons that produces the desired or intended effect which is to make the Defendant aware of this suit. He relied on the case of Geoffrey Gatete and Angela Maria Nakigonya versus William Kyobe SCCA number 7 of 2005 and the case of Lakhan Bhimji vs. Manor Developments Ltd Miscellaneous Application Number 105 of 2010. Summons was served at the Applicants liaison office in Kampala upon an administrative officer according to the affidavit of service sworn by one Owino Matthew. The affidavit of service indicates that on 17 January 2012 he proceeded to the Applicant's office and served summons on the Administration Officer who acknowledged receipt of summons. The Applicants case is that service ought to have been served on a principal officer of the Applicant in Kasese or on Messieurs Shonubi, Musoke and Company Advocates. Furthermore Counsel relied on Order 29 rule 2 of the Civil Procedure Rules for the proposition that service of summons is to be served upon a secretary or director or other principal officer of the Corporation or by sending it by post to the registered office or where the Corporation carries on business. Counsel relied on Crane Bank Ltd versus Kabuye Victoria High Court miscellaneous application number 719 of 2007 and Kampala City Council versus Apollo Hotel Corporation [1985] HCB at page 77. Senior officers of the Corporation include the Corporation manager, Chairman, President, and Chief Executive officer. Grace Kayongo who was served was neither a director, secretary, manager, chairperson, President, chief executive officer nor a legal officer of the Applicant according to the affidavit of Byrd Sebuliba which has not been challenged. 10 days within which the Applicant ought to have applied for leave to appear and defend the suit after being effectively served was 29th of January 2012 which was a Sunday and the application for leave was filed on Monday 30th of January 2013. Consequently the registrar entered judgement against the Applicant contrary to the law. A decree entered illegally should not be allowed to stand and ought to be set aside on grounds of illegality according to the case of Uganda Telecom limited versus AIRTEL Uganda limited Miscellaneous Application Number 30 of 2011. Finally Counsel submitted that Order 36 rule 11 empowers the court to set aside execution.

In reply of the Respondent Counsel submitted that on 14 March 2012 the court ordered the consolidation of miscellaneous application number 110 of 2012 and miscellaneous application number 37 of 2012 but the Applicant in submissions abandoned the latter and concentrated on the former.

Secondly Counsel objected to the application on the ground that the affidavit of the Sebuliba in support filed on 13 March 2013 is riddled with falsehoods. Firstly in paragraph 2 he admits that the Applicant was served with summons to file a defence. Secondly that the summons was received by the Kampala liaison officer on 17 January 2012. Thirdly the liaison officer then sent the summons to her superiors in Kasese who received the same on 19 January 2012. Counsel attacked the affidavit on the ground that the source of information is not stated and the grounds of knowledge are not given. Consequently he submits that the affidavit offends order 19 rule 3 (1) and (2) of the Civil Procedure Rules.

Counsel further attacked the affidavit of the Sebuliba that summons were received on 19 January 2012 by Aida. He contends that the averment is without any basis or source of information, and is hearsay and for swearing on contentious matters because the names of the said Aida are not disclosed. Secondly he alleges that the advocates of the Respondent knew her but he does not indicate which advocate. The acknowledgement of summons attached does not support the contention that it was signed on 19th of January 2012 by Aida. It does not contain the names, received stamp and signature of the liaison officer for 17 January 2012. Annexure "C" is not signed or stamped and its origins are unknown. Aida never swore an affidavit to corroborate that of Byrd Sebuliba.

Secondly Counsel asserted that there is a further false affidavit in rejoinder of Byrd Sebuliba which contains a blatant falsehood that it is in rejoinder to the affidavit of Rob Jennings filed on court record on 30 January 2012. It does not mention that Byrd Sebuliba ever read the affidavit of Rob Jennings. The conclusion of the affidavit that all he stated was true to the best of his knowledge and belief was false because he cannot be at SM Chambers, Applicant's office, and Kasese office almost at the same time. Counsel relied on several authorities to the effect that an affidavit which contains obvious falsehoods becomes suspect and is incompetent and an application supported by it cannot be sustained.

In reply to the issue of whether the judgment and decree that was entered against the Applicant as well as the execution should be set aside?

The Respondent’s Counsel submitted that service was effected on the company and at its premises and this was effective service in law. On the basis of the affidavits the Defendant/Applicant was served on 17 January 2012 but the Applicant chose the date of 19th of January 2012 as the proper service date. After creating the two dates, Counsels contend that the mistakes of an advocate should not be visited on the client. This is a contradiction to the submission that the application was filed in time. There was clearly dilatory conduct on the part of the Applicants. Failure to file an application in time leads to the consequences of Order 36 rule 3 (2) of the Civil Procedure Rules.

The Respondents Counsel submits that there is admission of negligence by Counsel which is not a defence and secondly there are falsehoods in the affidavits referred to above. Negligence of Counsel are not be possible where the affidavit in support deposes that the application was filed in time. Once the application is not filed in time, the Plaintiff/Respondent is entitled to a decree for the amount claimed under Order 36 rule 2 (a) (i) and 3 (2) of the Civil Procedure Rules. The registrar of the court was satisfied based on the affidavit of service that no application had been filed within the mandatory period and entered judgment accordingly. Taxation was conducted by the registrar commercial court immediately after giving judgement under rule 50 of the Advocates (Remuneration and Taxation of Costs) Rules ex parte.

The Respondents Counsel further submitted that service was good and effective. The affidavit in support confirms that service was effected on 17 January 2012. 10 days from 17 January 2012 is 26 January 2012. However Counsel submits that the acknowledgement attached to the affidavit in support annexure "C" is at variance with that of the process server annexure "A" and prayed that the court notes the various differences pointed out in his submissions. There is no number to the alleged application for leave to appear and defend the suit allegedly filed on 30 January 2012. On the other hand the Respondents Counsel agrees with the authority of Geoffrey Gatete and Angela Maria Nakigonya versus William Kyobe (supra) and that of Lakhan Bhimji vs. Manor Developments Ltd HC MA 105 of 2010 (supra). The argument is to the effect that effective service of summons means service that produces the desired or intended result which is to make the Defendant is aware of the suit. Counsel reiterated submissions that the service in the "liaison office "of the Applicant was effective service. He contends that neither the liaison officer nor the company disputed the authority and signature/seniority of the liaison officer. Counsel relied on section 274 (1) of the Companies Act 2012 which provides for service of documents. A document may be served on a company by sending it by registered post, serving on an officer of the company, sending it to an e-mail or known electronic address of the company or leaving it at the registered office of the company. Furthermore Order 29 rule 2 (a) of the Civil Procedure Rules permits service to be made on the secretary, or any director or other principal officer of the Corporation. An administrative officer even if it is admitted as a liaison officer is a principal officer. That is why her signature is accompanied by a received stamp of the company. Additionally the Respondents Counsel submits that the evidence that service was made on the liaison officer is a submission from the bar because the person who actually served deposes in the affidavit of service that service was made on the Applicant/Defendant and with copies of the stamped acknowledgement. Neither the process server nor Grace Kayongo support the application with an affidavit to indicate the capacity of the person who received court process. An office administrator in any case is a principal officer of any company. The administrative officer immediately took action after receiving summons. Additionally the Applicant’s application was endorsed by the registrar on 7 February 2012 and not on the received stamp of 30th of January 2012.

In rejoinder on the first issue the Applicants Counsel first addressed the question of the affidavit evidence of Mr Byrd Sebuliba. The Applicants Counsel submits that the affidavit of Byrd Sebuliba does not offends Order 19 rule 3 of the Civil Procedure Rules. The facts deposed to were within the knowledge of the deponent as an advocate who had personal conduct of the matter. It need not disclose sources of information on matters that were within his knowledge and belief. Messieurs Shonubi, Musoke and company advocates are the registered secretaries of the Applicant. Secondly the Respondent never pointed out the falsehoods contained in the affidavit or brought contrary evidence. Regulation 9 of the Advocates (Professional Conduct) Regulations does not forbid advocates from giving evidence but only forbids them from acting as Counsel in a matter in which they are called or likely to be called to give evidence.

On the question of service of summons on the Applicant Counsel reiterated submissions that the Applicant was not effectively served. Order 29 rule two of the Civil Procedure Rules governs service on corporations or companies. Service has to be effected either on the secretary, director, or principal office of the company or left at the registered office. According to Black's Law Dictionary 8th Edition, “Principal Officer” means an officer with the most authority out of the office is being considered for some purpose.

Secondly Mukwasi House where service was effected was not the Respondent registered office. The Respondent does not carry on its business in that house as stated in paragraph 9 of the Respondents submissions. Lastly with reference to the Companies Act 2012, the Act came into force on 1 July 2013 a year later than when the plaint was filed and is not applicable to the Applicants case.

Resolution of issue number one

I have duly considered the written submissions of Counsel. Written submissions were directed by court on 21 August 2013. On that day Counsel Peters Musoke appeared for the Applicant while Counsel Harriet Muhindo on holding brief for Dr James Akampumuza appeared for the Respondent. The court directed after it was agreed that it would be addressed in written submissions and that Counsels shall be restricted to 5 pages each. Initially Counsel Dr Akampumuza James objected to the application on the ground that it was an omnibus application for several orders. It was seeking to set aside and at the same time seeking to obtain a stay of execution of the decree. Secondly execution had been completed and could not be set aside.

The objections of the Respondents Counsel were overruled with costs on the 25 September 2012 and the court ordered that the application is heard on the merits. The wording of the ruling as follows:

"In the premises, the objection of the Respondent is overruled with costs and application shall be heard on its merits."

The first point to be made is that the Respondents Counsel grossly breached the rules and directives of this court by making a written submission of a total of 23 pages contrary to the directions of the court restricting submissions to 5 pages. Secondly the Respondents Counsel has gone ahead to raise further and additional preliminary objections on the competence of the application in the face of the ruling of the court that the application shall be heard on its merits after the previous objection. Counsel ought to have used the time of the first objection to raise all the objections on the competence of the application. The second objection raised in the written submissions relate to the affidavits in support of the application. The court cannot be subjected to endless objections. Objections have to be made once so that ruling on all the preliminary matters are completed and if they succeed the application is either rejected or dismissed and if they do not, the matter proceeds on the merits. For the above two reasons, I would proceed to consider the merits of the application without penalising Counsel for total disregard of court directives even if the directives may be unacceptable. The correct course was to apply to the court for leave to file a written submission exceeding five pages. Exceeding five pages by a few pages is tolerable but exceeding it by more than three times the directed number is unacceptable.

The first issue is whether service of summons was effective. This issue resolves on whether service on the liaison officer on 17 January 2012 (on the Applicants liaison officer) was effective service. It is a common fact agreed by both parties that such service was made. Consequently the only question is whether it was effective service on the Applicant.

I have carefully considered the record. Summons in the summary suit on plaint in HCCS number 16 of 2012 was issued by the registrar on 16 January 2012. The affidavit of service was filed on the High Court record on 2 February 2012. It was sworn by Owino Matthew. He states that on 16 January 2012, he received copies of summons to file a defence issued by this court together with copies of the summary plaint for service on the Defendant. On 17 January 2012 he proceeded to the Defendant's office on Mukwasi House first-floor room 1.3. He then proceeded to the Office Administrators Office. He tendered copies of the court documents to her and she read through and after understanding the contents she acknowledged receipt by signing and stamping on his copies and she retained her copies. The acknowledgement is attached as annexure "A" and "B". The acknowledgement annexure "A" is an acknowledgement received by Grace Kayongo on 17 January 2012 and duly signed. It is stamped with the stamp of Kasese Cobalt Company Limited, Kampala office. Annexure "B" has the same endorsement on the specially endorsed plaint. Annexure "A" on the other hand is the summons in summary suit on plaint. Therefore the issue is whether Grace Kayongo was a duly authorised officer of the company.

The Applicant’s application miscellaneous application number 110 of 2012 arising out of miscellaneous application number 37 of 2012 and arising out of HCCS number 16 of 2012 was filed on court record on 13 March 2012. It is for setting aside the judgement and decree and is supported by the affidavit of Byrd Sebuliba. Annexure "A" to the affidavit of Byrd Sebuliba is the summons in summary plaint. He deposes that the summons in summary suit on plaint was received by one Aida on 19 January 2012. He however acknowledges in paragraph 2 of his affidavit in support that the summons had been received by the Kampala liaison officer on 17 January 2012. The person who received namely the liaison officer proceeded to send the summons to her superiors in Kasese who received it on 19 January 2012. The Applicant relies on the date of 19 January 2012 as the proper date of service of summons. The Respondent on the other hand relies on 17 January 2012 as the proper date of service.

I have carefully considered the submissions of Counsel on this controversy. Two provisions of law are relevant in the submissions. The first provision that needs to be considered is that of the Companies Act 2012. I need not refer to the Companies Act 2012 because it came into force after the act it is sought to be applied to. It cannot have retrospective application and was meant to apply on a date to be appointed by the Minister.

Consequently both Counsels submitted on the provisions of Order 29 rule 2 of the Civil Procedure Rules which provides as follows:

"Subject to any statutory provision regulating service of process, where the suit is against a Corporation, the summons may be served –

  1. on a secretary, or on any director or other principal officer of the Corporation; or
  2. by leaving it or sending it by post address to the Corporation at the registered office, or if there is no registered office, then at the place where the Corporation carries on business."

The above rules clearly indicate that it is permissible to serve summons on the secretary, any director or other principal officer of the Corporation. Both Counsels narrowed down on the question of whether Grace Kayongo also indicated by the Applicants Counsel as the liaison officer of the Applicant was a principal officer. Reading the provisions in context, a principal officer is neither a secretary nor a director. The provision is clear that it has to be either a secretary or a director or other principal officer. By using the disjunctive "or", the categories are alternatives to each other. If it is not served on a secretary, it may be served on any director of the company/Corporation. If it is not served on a secretary or any director, then summons may be served on any other principal officer. The second leg of the rule is that summons may be served by sending it by post addressed to the Corporation at the registered office. If there is no registered office, then at the place where the Corporation carries on business. We need to examine the two categories starting with the category of service on an officer or official of the company.

It is a common position that the Respondent relies on service on the principal officer of the company. The Applicants Counsel relied on Black's Law Dictionary eighth edition for the definition of a ‘principal officer’ as an officer with the most authority of the officers being considered for some purpose. The definition is general. “Principal officer” as far as the above rule is concerned must be an officer other than a secretary or a director of a Corporation. The question of who a principal officer is was considered by Pennycuick J in the case of Re Vic Groves & Co Ltd [1964] 2 All ER 839. In his consideration of the term ‘principal Officer’ under rule 30 of the Companies (Winding up) Rules 1949 which provided as follows:

“Every petition shall be verified by an affidavit referring thereto. Such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by a corporation, by some director, secretary, or other principal officer thereof, and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be prima facie evidence of the statements in the petition.”

Pennycuick J  held at page 840 as follows:

“Now Mr Mothio is neither a director of nor a secretary of Shell-Mex and BP Ltd. His position is that of divisional manager. I have been told that there are, in all, thirty-two divisional managers. By s 455 of the Companies Act, 1948, the expression “officer”, in relation to a body corporate, includes a manager, so it seems clear that Mr Mothio is an officer of the petitioner company; but on the material before me it seems impossible to say that he is a principal officer of the company. That expression is not necessarily limited to directors. Various other officials of corporations have from time to time been accepted as principal officers. For example, I imagine, a general manager would be, but I do not find it possible to say that all these thirty-two gentlemen are principal officers of the company.”

The court considered the expression "officer" in relation to a body corporate to include a manager. But out of so many other managers, the judge found it difficult to say that the relevant officer considered in the judgement was a principal officer. In the case of Remco Ltd v Mistry Jadva Parbat and Co Ltd and others [2002] 1 EA 233, Justice Ringera of the Kenyan High Court commercial division considered that the service on the receptionist of the company was not proper service. This is because the case of the Plaintiff was that service was effected on an authorised officer. Secondly the mode of service of leaving the process at the registered office was not open to the Plaintiff because the process server had been unable to find any of the principal officers of the Corporation. In the case of Kampala City Council versus Apollo Hotel Corporation [1985] HCB at page 77, it was argued that the Applicant had not been served with summons and was not aware of any pending suit and therefore could not enter appearance. In the application to set aside the decree Justice Odoki (judge of the High Court as he then was) held that summons have to be served on the secretary to the board, or the chairman of the board or any director or other principal officer in that category of responsibility. Such process must be served on senior officers of the Corporation responsible for the management of the Corporation and in a position to take legal action on behalf of the Corporation. Therefore not any other officer of the Corporation may be served with process. In that case the person served as manager of the Corporation was not a principal officer of the Corporation competent to accept service of process. In the case of Augustine Okurut vs. Gerald Lwasa and Produce Marketing Board [1988 – 1990] HCB at 164 service of court process on the secretary to the managing director of the second Defendant was held to be outside the scope of Order 29 rule 2 of the Civil Procedure Rules (revised). From the authorities reviewed above one gets the impression that the expression "principal officer" has to be determined on the basis of the facts as to whether the person or the officer is the principal officer in the circumstances of the case.

As far as the provisions of the Companies Act are concerned section 107 of the Companies Act Cap 110 provides that the company shall have a registered office with a registered postal address to which all communications and notices may be addressed.

In this particular case Grace Kayongo is said to have forwarded the summons to the office of the Applicant in Kasese and it was allegedly received on 19 January 2012. Paragraph 4 of the affidavit of service clearly indicates that service was made at the Office Administrators office. There is no description of the officer who was served. The question of whether the process server served a principal officer can only be answered if it is proven in the affidavit of service who actually was served. I have duly considered the affidavits in reply; the Respondent does not indicate how service was effected other than as appears in the affidavit of service of Matthew Owino. Order 5 rule 16 of the Civil Procedure Rules provides as follows:

"The serving officer shall, in all cases in which the summons has been served under rule 14 of this order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons."

Rule 14 requires that where the summons is duly delivered or tendered to the Defendant personally or to an agent or other person on his or her behalf, the Defendant or the agent or other person shall be required to endorse an acknowledgement of service on the original summons.

The affidavit of service of Matthew Owino does not state the name and address of the person served. The name of the person is however written by the person who signed as Grace Kayongo and the address is contained in the stamp. There is no statement of the capacity of the person acknowledging service. Byrd Sebuliba deposes that Grace Kayongo who acknowledged service on the behalf of the Applicant is a liaison officer and not a principal officer. He does not state whether there were other principal officers in the liaison office. There is no specific evidence as to whether the liaison office is the registered office of the company. Submissions of the Applicants Counsel on this point is not based on admissible evidence because such evidence is required to be by affidavit. Finally the official stamp of the Applicant address in the acknowledgement of summons indicates that it is the Applicant’s Kampala office. The use of the company seal and the authority to append a signature to the company seal is evidence which has not been rebutted that the officer served was a principal officer authorised to use the company seal on her signature for purposes of acknowledging service. Secondly by using a stamp reading "Kampala office" the Applicant represented to the Respondent and the process server that Kampala office had a principal officer authorised to accept court process.

In my humble opinion and in the absence of any clear explanation as to what is meant in the stamp by "Kampala office" of the Applicant, it is deemed to be the proper office or the branch office of the Applicant. I have critically analysed the affidavit of Byrd Sebuliba paragraph 2 thereof which reads as follows:

"That the Applicant was served with summons to file a defence and the said summons were received by the Kampala liaison officer on 17 January, 2012 and then sent to her superiors in Kasese who received the same on 19 January 2012"

Summons cannot be received twice. It was duly received on 17 January 2012 and sent to Kasese for further management. After considering the acknowledgement on the summons attached to the affidavit of Matthew Owino, the evidence of the Applicant is clearly that the officer who acknowledged service of summons duly sent it within two days to her superiors. The issue is when time begins to run namely whether on 17 January 2012 or on 19 January 2012. It is my humble opinion that time begins to run from the date of acknowledgement of summons. This was on 17 January 2012. The Applicant did not disregard the summons. The Applicant was left with eight days within which to file an application for leave to appear and defend and neglected to do so. The date of 19 January 2012 is unknown to the court or the process server. The Applicant duly acknowledged service and the service is confirmed by the affidavit in support of the application. It cannot be avoided by calling the officer who received the summons a liaison officer. In any case the stamp acknowledging service was that of the Kampala office of the Applicant. In those circumstances, since no application was made to defend the action within 10 days from 17 January 2012, Order 36 rule 3 of the Civil Procedure Rules, empowered the registrar who had the only admissible evidence of service in the affidavit of Mathew Owino to enter judgement. Specifically Order 36 rule 3 (2) of the Civil Procedure Rules provides as far as is relevant as follows:

"In default of the application by the Defendant or by any of the Defendants (if more than one) within the periods fixed by the summons served upon him or her, the Plaintiff shall be entitled to a decree for an amount not exceeding the sum claimed in the plaint, together with interest, if any…"

The remedy of the Applicant/Defendant was not to contest the date of acknowledgement. In fact the Defendant/Applicant admits that it was duly served and the service was effective by merely having the summons sent to the relevant person within the organisation within two days. Within the remaining days, the Applicant ought to have taken action. The dairy of the year 2012 shows that 17th of January 2012 was a Tuesday while the 19th was a Thursday. In reckoning time Order 51 of the Civil Procedure Rules gives guidance. For purposes of reckoning time, it is imperative as directed by Order 5 rule 16 of the Civil Procedure Rules that the affidavit of service shall indicate the time of service. This is because rules 8 and 9 of Order 51 makes the time of service relevant. The two rules are reproduced for ease of reference and provides as follows:

“8. Number of days—how computed.

In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the days shall be reckoned exclusively of the first day and inclusively of the last day.

9. Time of day of service.

(1) Service of pleadings, notices, summonses, other than summonses on plaints, orders, rules and other proceedings shall normally be effected before the hour of six in the afternoon, except on Saturdays when it shall normally be effected before the hour of one in the afternoon.

(2) Service effected after the hour of six in the afternoon on any weekday except Saturday shall, for the purpose of computing any period of time subsequent to the service, be deemed to have been effected on the following day; service effected after the hour of one in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.”

Rule 8 provides that where any particular number of days is not expressed to be clear days, the days shall be reckoned exclusively of the first day and inclusively of the last of the. This summons issued clearly provides that an application for leave shall be made within a period of 10 days from the service of the summons. 10 days from 17 January 2012 is 26 January 2012 which is a Thursday. If it is counted from the 18th by exclusion of the 17th of January 2012 would be Friday, 27 January 2012. In those circumstances, the hands of the court are tied and Applicants application to the extent that it seeks an order that summons served was not effective is incompetent and accordingly dismissed with costs.

Ruling delivered in open court this 9th of December 2013

 

Christopher Madrama Izama

Judge

Ruling/Judgment delivered in the presence of:

Priscilla Mugisha for the Respondent

Nicholas Mwasami holding brief for Peter Musoke

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

9th December 2013