THE REPUBLIC OF UGANDA
THE COURT OF APPEAL OF UGANDA, AT KAMPALA
CIVIL APPEAL NO. 016 OF 2004
ITY COUNCIL OF
D CRANE TOURS AND TRAVEL L
HON JUSTICE SOLOMY BALUNGI BOSSA JA;
HON JUSTICE RICHARD BUTEERA, JA;
HON JUSTICE KENNETH KAKURU, JA.
JUDGMENT OF HON JUSTICE KENNETH KAKURU, JA
appeal arises from a decision of Hon.Justice V.F. Musoke-Kibuuka
st August 2003 in Civil Suit No. 966 of 1999.
ellant was the defendant in the original suit and in which judgment
ered in favour of the respondent 21/8/2003.
At the h
earing of this appeal Mr. Bernard Mutyaba Ssempa appeared for
he appellant and Mr. Benson Tusasiirwe appeared for the respondent.
nitially there were three grounds of appeal set out in the Memorandum of
. However, at the commencement of this appeal Mr. Mutyaba
earned counsel for the appellant withdrew grounds 2 and 3 leaving
und one for determination. I must state that learned counsel for
ellant rightly withdrew the grounds because they were too general
nded, in my view the provisions of Rule 86 of the Rules of this
t. Had he not withdrawn them I would still have been inclined to strike
fore, there is left only one ground for determination in this appeal, that
ground one, which states as follows:
1) "The learned trial judge erred in law and in fact when he made a
nding that the appel/ant was duly served with the statutory notice. J~
It is n
ot in dispute that the appellant is a statutory body, a Local
ment, and as such the respondent was required to serve upon it a
Notice of Intention to sue under the provisions of the Civil
ure and Limitations (Miscellaneous Provisions) Act.
l for the appellant urged that the appellant was not served with a
tatutory Notice of Intention to sue. That no evidence whatsoever was
uced at the trial to show that the notice was served upon the appellant
respondent in accordance with the law. That although a Statutory
was issued by the respondent dated 8/2/1999, it was never
vely served. However, he conceded that a copy of the notice was
nnexed to the plaint. He also conceded that it bears a stamp of
ant's legal department, the City Advocate's Office.
d that, the stamp and signature as indicated on the copy of the
e not enough to prove effective service upon the appellant.
ontended that the mode of service of a Statutory Notice of
o sue is set in Regulation 26 of the third schedule of the Local
nt Act, Cap 243 which provides that summons and notices or
uments required to be served upon a District or urban councils
shall be s
erved by delivering it to or by sending it by registered post to the
ministrative Officer or the Town Clerk.
ied on the case of Micheal Sansa and others versus Kampala City
HCCS No 482 of 1999) (unreported)
in which the High Court held,
in that p
articular case, that a notice served which was} Qft the City
's Office did not comply with Regulation 26 of the Local
Act. He also cited the decision of this court, in:
Division Council of Rubaga Versus Jimmy Muyanja, (Civil Appeal
No. 14 o
which cited the case of Micheal Sansa and others Versus
City Council (Supra)
In reply l
earned counsel for the respondent urgued that, the service was
He contended that service upon the City Advocate was effective
pon the Town Clerk. He urged that although the matter was
framed as a
n issue it was never pleaded and was not canvassed by either
in evidence in chief or cross examination. He fully associated himself
with the fi
nding of the learned trial judge.
It is trite
law that failure to serve a Statutory Notice of Intention to sue upon
ent, Local Government or scheduled Corporation, before filing a
ders the whole suit incompetent. See: Kampala City Council
Nuliyati  EA 400.
e of Service of the Statutory Notice is set out under Rule 26 of the
edule of the Local Government Act Cap 243 which provides as
e of Service of summons etc
ny summons, notices or other document required or authorised to
served on a district, urban or sub-county council shall be served
delivering it to or by sending it by registered post addressed to,
e Town Clerk, Chief Administrative Officer or Chief of the subcounty
of the counc
It was c
ontended by counsel for the appellant that there was none
nce with this rule as service was never affected on the Town Clerk,
there was no effective service. However, in his submission
s Court he conceded that the City Advocate was an agent of the
erk and that service upon him would be effective service.
agree that service upon the City Advocates is effective service
upon the T
his is what Hon Justice V. Zehurikize (J) of the High Court held,
stated in the case of Micheal Sansa Ltd and others VS KCC
h was cited and relied upon by the counsel for the appellant.
At page 8 o
f his judgment he states as follows:
if service had been effected on the City Advocates, it would have
effective service for the purpose of Regulation
26, see Impact
es Ltd (Supra). This is because a City Advocate is a clear agent
e Town Clerk, who is known to be responsible for legal matters of
Council': (Emphasis mine)
In the case o
f Impact Process Ltd Vs City Council of Kampala HCCS No
929 of 19
97 (unreported). Hon J. H. Ntagoba (P.J) (as he then was) held
e upon the City Advocate was effective service upon the Town
Clerk. He h
owever struck out the suit, as the Statutory Notice in that
se had been served upon a filing clerk in the office of the City
learly therefore the issue for determination in this appeal is
e learned trial judge erred when he held that there was effective
on the City Advocate as an agent for the Town Clerk.
In the case o
f Impact Process Ltd Vs City Council of Kampala (Supra)
s adduced to show that service had been effected on a filing
the case of Micheal Nsansa and others Versus KCC, (supra) it was
y evidence in court that service had been effected on one Esther a
clerk in t
he City Advocates Office. Court rightly found that there was no
ervice upon the City Advocate.
the case of City Division of Rubaga Versus Jimmy Muyanja, (Civil
l No. 14 of 2002). (unreported)
was required to determine an issue that had been raised at the
h had not resolved by the trial judge. That is:
Whether the Statutory Notice had been served upon the appellant in
hat case. "
that case the matter had been brought in issue by way of preliminary
ion. Court decided to resolve it upon hearing evidence. Evidence
in court on this issue, was that the person who is said to have
ervice delivered the document to the Secretary of the Town Clerk
at the rec
eption of the Town Clerk's Office and a gentleman signed her
her lead judgment, Hon Lady Justice C.N.B Kitumba (as she then was)
Personal knowledge of the person to be served is not necessary for
ective service. Be that as it may, I am not convinced the service
effected on the appellant because of the following reason:
stly, the Statutory Notice which is annexture A in reply to the
pondent's written statement of defence and the delivery book
bit P5 does not bear either a known signature of the Assistant
wn Clerk or the appel/ant's stamp.
ondly, PW2's testimony is that she typed the Statutory Notice on
rd August 2000 and served it on the appellant on the same day.
wever, the Statutory Notice is dated 1stAugust 2000.
rdly, PW2 testified in cross examination that she does not know
at a Statutory Notice is. It is possible that if she served any
ument to the appellant it might have been something else and not
atutory Notice. "
om the above, evidence was adduced in court as to service. The
Notice did not bear any stamp of the office at which it was served.
rectly found that there was no effective service.
ve case is clearly distinguishable from the one from which this
rises. In this case Paragraph 4 of the plaint specifically avers that
The Statutory Notice of Intention to Sue was duly served upon the
fendant. It is annexed to the plaint as annexture 'F'."
e 'F' bears a rubber stamp with the following inscriptions:
O. Box 7010 Kampala
also bears a signature. In the appellant's written statement of
which has only 4 paragraphs none of them specifically traverses
h 4 of the plaint. Paragraph 2 of the written statement of defence
ates that paragraph 4 of the plaint is denied.
At the h
earing of this appeal Mr. Mutyaba Sempa strongly argued that
3 of the written statement of defence effectively traversed
h 4 of the plaint. Paragraph 4 of the written statement of defence
reads as f
The suit is barred by Act 20 of
1969 and the Local Government Act,
99 and the defendant will move court at or before the hearing that it
struck out with costs. If
the hearing of the case proceeded at the trial, Mr. Mutyaba Sempa
who was i
s also counsel for the plaintiff, now appellant did not raise any
ry objection at all, in regard to the Statutory Notice.
e, whether or not the suit was barred by statute was never raised
as a prel
iminary objection neither was it framed as an issue. It seems to
of the service of Statutory Notice was framed as an issue at the
ling conference. The Statutory Notice was not listed among "agreed
" at the conferencing.
The suit th
en proceeded with the testimonies of witnesses.
f called three witnesses and the defendant now appellant called
s. None of the witnesses testified on the issue of service of the
ry Notice at all. Counsel for the defendant then did not raise it at all
n the cross examination.
ingly, both counsel submitted on the issue in their written
In his subm
ission on appeal Mr. Mutyaba Sempa did not deny knowledge
re 'F' to the plaint. His argument was that service was not
the notice was not served on the Town Clerk in person. He
ded that service on the City Advocate was effective service on
the Town C
lerk for the purpose of Rule 26 of Schedule 3 of the Local Govt
argued that service on any person at the City Advocates Office
could not b
e effective service.
on the authorities of the City Division of Rubaga Versus Jimmy
ja Civil Appeal No 14 of 2002 (Court of Appeal) (unreported). (supra)
icheal Nsansa and others Versus KCC (HCCS No 482 of 1999).
have already noted that in these two cases the facts are clearly
inguishable from those from which this appeal arises. In both cases
ove, evidence was adduced as to service, witnesses were called
, in this particular case before me, the judge and the parties seem
ve accepted annexture 'F' to the plaint as part of the evidence at the
. The only issue was its evidential value.
rned trial judge was satisfied that the Statutory Notice was received,
and signed in acknowledgement of receipt by the legal
rtment of City Advocates Office, Kampala on 12th Feb 1999.
my view annexture 'F' was prima facie evidence of service. Since, the
dent had presented prima facie evidence of service, in my view he
rged his evidential burden. The evidential onus then shifted to the
nt. The onus shifted to the appellant to show that service was not
e. It was up to him to show that it had been effected upon a
sweeper" or "tea girl" or a clerk as counsel for the appellant submitted, in
It was, u
pon the appellant to show or prove that the stamp was a forgery or
ture was unknown. He did not. I hasten to add that because he
t pleaded any defence to paragraph 4 of the plaint, rules of evidence
have permitted him to adduce evidence on a matter that was not
t as it may, he ought to have raised the issue at least in cross
n. He did not.
It is trite l
aw that one who alleges must prove. The burden of proof
re lies on the plaintiff. However, once this burden is discharged, the
l burden shifts to the defendant, or respondent as the case may
In the cas
e of Col (Rtd) Dr. Besigye Kizza Vs Museveni Yoweri Kaguta and
upreme Court Election Petition No 1 of 2001 (unreported). Hon.
.J had this to say on the shifting onus at page 176 of his
far as the shifting of the burden of adducing evidence is
erned, it is stated in Sarker's Law of Evidence Vol
1, 14'h edition
1997, pages 1338 - 1340 as follows:
pears to me that there can be sufficient evidence to shift the onus
ne side to the other if the evidence is sufficient prima facie to
blish the case of the party on whom the onus lies.
at is meant is that in the first instance the party on whom the onus
must prove his case sufficiently to justify a judgment in his favour
170 evidence. Sloney Vs Easlborne Rd Council (1927) 1
In the sam
e case Besigye Vs Museveni (supra) Justice Tsekooko JSC
states on p
age 143 of his judgment.
..Once the petitioner had proved fabrication and falsity, the burden
d to first respondent to prove otherwise"
See also the j
udgment of this court in the case of James Mboijana Vs
boijana (Civil Appeal No 87 2002) unreported."
In my view, t
he respondent discharged his burden when he produced a
copy of the
Notice of Intention to Sue, duly stamped and signed as already
bove. At that point the evidential burden shifted to the appellant
to prove tha
t the notice was never received. He failed to do so. In fact he
opted not to c
hallenge the service both in his written statement of defence
and in cros
tly, the evidence on record as to service of the notice remained
This is how this case is distinguishable from that of Micheal
pra) and that of Jimmy Muyanja (supra).
Suffice it to s
ay, I entirely agree with the reasoning and conclusion of the
ial judge on this issue.
nd therefore must fail. Since it is the only ground for
ion, this appeal fails, and it is accordingly dismissed with costs,
in this court
and in the court below.
Dated at K
ampala, this 27th day of September 2013.
OF THE COURT OF APPEAL