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Last Updated: 25 May 2007
Kampala City Council V Victoria International
Trading Co. Ltd- HCT-00-CC-MA-0666-2006 [2007] UGCommC 19 (26
February 2007)
THE REPUBLIC OF UGANDA
IN THE HIGH
COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT
DIVISION)
HCT-00-CC-MA-0666-2006
(Arising out of Civil Suit
No. 21 of 2006)
Kampala City Council
Applicant
Versus
Victoria International Trading Co. Ltd
Respondent
26th February
2007
BEFORE: THE HONOURABLE MR. JUSTICE YOROKAMU
BAMWINE
R U L I N G
This application is
purportedly under 0.11 r (d) of the Civil Procedure Rules; S. 2 (1)
of the Civil Procedure and Limitation (Miscellaneous
Provisions) Act,
Cap. 72 and Regulation 26 (1) of the Third Schedule to the Local
Governments Act, Cap 243. It is for orders that
on the grounds set
out in the attached affidavit of Mrs Ruth Kijjambu, the plaintiff’s
action against the defendant be struck out
with costs; and that costs
of this application be provided for.
The application arises out of
HCCS No. 21 of 2006, Victoria International Trading Co. Ltd
–Vs- City Council of Kampala, wherein the
plaintiff claims that it entered into a market management contract
with the defendant and that the defendant has breached
terms of the
contract by advertising for bids in the Daily Monitor Newspaper of
23/12/2005. It is the plaintiff’s contention in
that case that it
will suffer great loss and damages if its prayers in the plaint are
not granted by this Honourable Court as the
plaintiff has invested a
huge sum of money in the development of the said market.
In
its written statement of defence, the plaintiff avers that the suit
is incompetent and unsustainable due to non-compliance with
the Civil
Procedure and Limitation (Miscellaneous Provisions) Act and the Local
Government (sic) Act. The two cited laws relate to
the mode of
service of summons, etc. In paragraph 8 of the plaint, the plaintiff
avers that Notice of Intention to sue was duly served
on the
defendant who ignored it. The defendant having denied the contents of
paragraph 8 of the plaint, the service of the statutory
notice became
an issue for determination in that suit. Accordingly, it was not
necessary, in my view, to file yet another application,
the instant
one, since the issue could have been determined therein. I’m saying
so because under 0.7 r. 11 (d) of the Civil Procedure
Rules, once it
is proved that the suit is barred by any law, the plaint must be
rejected and struck out. So why would it be necessary
to file yet
another application when the issue can be addressed in the main suit
itself?
Be that as it may, it was submitted by Mr. Sendege,
counsel for the defendant/applicant, that no notice of intention to
sue was served
on the defendant before the suit was instituted. That
this is averred in the affidavit of Ruth Kijjambu in support of the
application.
That after the issue had been raised, Mr. Bashasha swore
an affidavit in general and sweeping terms contending that service
had been
effected. Counsel has taken issue with this case because the
deponent does not state who was served or even who effected service.
Counsel concedes that the copy of the Notice purportedly served on
the defendant bears a stamp, a signature and the word ‘received’,
but that these are not enough. In these circumstances, counsel states
that there was non-compliance with the law and that the suit
should
accordingly be struck out.
The two learned counsel for the
defendant do not agree. They think that the application is
incompetent, given that Ruth Kijjambu who
swore the affidavit in
support of the chamber summons was not the Town Clerk at the material
time. They think that as such, her averment
that what she states in
that affidavit is based on knowledge is false. That based on the
falsehood, the affidavit is bad and it should
be rejected. In the
alternative, learned counsel have argued that after the issue of the
alleged non-service of the statutory notice
was raised, they produced
to the defendant a duly stamped and signed copy of the same. In their
view, until it is shown that the
stamp is not that of the Town
Clerk’s office, the defendants cannot be said to have proved their
claim. They also raise another
issue: that 0.11 r. (d) on which the
application is based is non-existent. At the hearing, Mr. Sendege for
the applicant conceded
to the fact that 0.11 r. (d) does not exist.
In view of that concession, I don’t intend to waste any more time,
ink and paper on
that issue. In my view, the applicant intended to
rely on 0.7 r. 11 (d) of the Civil Procedure Rules. I’m not sure
that citing
the wrong law has in this case occasioned any failure of
justice.
As to the point of law raised by the applicant, both
parties agree that service of a notice of an intended suit was
mandatory. In
view of that agreement, the only issue for
determination is whether any such notice was served on the defendant.
I have given due
regard to the arguments of all counsel.
Following
the defendant’s denial of paragraph 8 of the plaint, one Bashasha
Herbert has sworn an affidavit stating that the defendant
was served.
He has attached a copy of a statutory notice dated 15 November, 2005.
The same bears a stamp of the Town Clerk of Kampala
embossed on it, a
word ‘Received’ and a signature of someone who received
it. In my view, once the defence puts up the operation of the law
relied herein, relating
to service or non-service of the Statutory
Notice, the burden shifts to the plaintiff to prove that the
necessary notice was served
upon the defendant. Such proof can take
different forms. In law a fact is said to be proved when the Court is
satisfied as to its
truth. The evidence by which that result is
achieved is called the proof. The general rule is that the burden of
proof lies on the
party who asserts the affirmative of the issue or
question in dispute. When that party adduces evidence sufficient to
raise a presumption
that what he asserts is true, he is said to shift
the burden of proof: that is, his allegation is presumed to be true,
unless his
opponent adduces evidence to rebut the presumption.
Relating the above principle to the instant case, the defendant
alleged in its
WSD that it had not been served with the statutory
notice. It should be recalled that attaching it to the plaint at the
time of filing
is not a legal requirement. Therefore, raising the
issue in the WSD created an obligation on the plaintiff to show, or
rather prove,
that the notice had actually been served. It has
produced to the defendant a copy of the notice indicating evidence of
service.
Under S.2 of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act, service of the notice should be
delivered to or left
at the office of the officer specified in the
schedule, who is a Town Clerk in the instant case. Regulation 26 (1)
of the Local Governments
Act takes the matter of service further.
Under this regulation, any summons, notice or other document required
or authorized to be
served on an urban council shall be served by
delivering it to, or by sending it by registered post addressed to,
the Town Clerk.
The plaintiff’s argument in this case is
that the notice was delivered to the office of the Town Clerk.
Evidence for that, according
to them, is the stamp on the copy they
have produced, the word ‘Received’ on it and a signature of some
person who received it.
In my view, this was sufficient evidence
adduced by the plaintiffs raising a presumption that what they assert
about service of notice
in their plaint, is true. At this stage, the
burden shifts to the other party to rebut the presumption. And this
is where the point
made by the respondents herein becomes pertinent.
The defendant has not adduced any evidence to show that the stamp
appearing on
the notice is not the genuine stamp of the Town Clerk;
or that the signature appearing next to the stamp is not that of the
officer
specified in the schedule, the Town Clerk, in the instant
case. The person who has sworn the affidavit in support of the
Chamber
Summons, Ruth Kijjambu, was not in office at the material
time, according to the respondents. This fact has not been challenged
by
evidence. The person who was in office at the time as the Town
Clerk has not sworn any affidavit disowning the signature. This Court
does not know the signatures of any of the defendant’s officers at
the time, or at all, to raise the inference that the signature
appearing on the impugned notice is not that of the person authorized
at the time, to receive summons, notice or other documents
on behalf
of the defendant. In these circumstances, the defendant has not
adduced any evidence to rebut the presumption that what
the plaintiff
asserts in its paragraph 8 of the plaint is true. For this reason
alone, I would find no merit in the preliminary point
of law raised
by the defendant and disallow it.
Mr. Sendege cited to me a
number of authorities. They include HCCS No. 482/99 Michael Sansa
& Others –Vs- K.C.C (unreported). In that case, what was in
issue was service by the plaintiff, on a Clerk in the office of the
City Advocate, of documents
meant for the defendant. The Court held
that the service was improper. The facts of that case are clearly
distinguishable from the
facts herein.
Counsel also cited to me
Fancy Stores Ltd & Anor –Vs- UCB, HCCS No. 9/92
reproduced in [1994] IV KALR 18. In that case no
service of the notice had been made. The plaintiff conceded so. The
Court held that the suit was barred by law because
of non-service of
the notice. Clearly also, that case is distinguishable from the
instant one.
I have addressed my mind to the arguments of
counsel regarding the affidavit of Ruth Kijjambu. She states in that
affidavit that she
is the Ag. Town Clerk of the defendant and that as
such, she is competent to swear the affidavit on the defendant’s
behalf. In
the crucial paragraph, No. 3 thereof, she states:
"3. That I have noted that contrary to the statutory requirements under S.2 (1) (b) of the Civil Procedure & Limitation (Misc. Provisions) Act, Cap 72 for service of statutory notice of 45 days on the Local Government before commencement of a suit against it, no such notice was served upon the applicant/defendant before institution of HCCS NO. 21 of 2006 by the respondent/plaintiff".
She then swears that whatever she has stated
is true to the best of her knowledge. From the records, the notice is
said to have been
served in November, 2005 and the suit was filed in
January 2006. From the unchallenged evidence of the plaintiff, Ruth
Kijjambu did
not become the Ag. Town Clerk till September 2006.
Surely what she states in her affidavit, that is, that the fact of
the alleged
non-service of notice is based on her own knowledge,
cannot be true. It is a naked falsehood. O.19 of the Civil Procedure
Rules provides
the manner and when affidavits must be sworn. Under
this law, an affidavit must be confined to such facts as the deponent
is able
to his or her own knowledge to prove, except on interlocutory
applications on which statements of his/her belief may be admitted.
Even then, the grounds thereof must be stated. Bearing in mind the
above Rule, and the unchallenged evidence of the respondents
regarding
when Ruth Kijjambu became the Ag. Town Clerk, I think the
affidavit sworn for the applicant would nowhere be near an affidavit.
What
she states can at best be an opinion not based on any facts,
except perhaps allegations other people have told her. An opinion is
not evidence at all. In these circumstances, I would agree with
learned counsel for the respondent’s argument that there is no
affidavit accompanying the Chamber Summons. That being so, the
application is incompetent.
For the reasons I have
endeavoured to give, I have found no merit in the preliminary point
of law raised by counsel for the applicant.
It is dismissed with
costs to the respondent, certified for one counsel only.
Yorokamu
Bamwine
J U D G E
26/02/2007
26/2/2007
Mr. Sendege for
applicant/defendant.
Mr. Tendo Simon holding brief for Mr. Kavuma
Kabenge.
Court: Ruling delivered.
Yorokamu Bamwine
J
U D G E
26/2/2007
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