Wakilii

Jamal and Others v Shamji (Civil Appeal No. 67 of 2001)

Court of Appeal · [2007] UGCA 78 · 2007 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing a preliminary objection on service of process
Decision
Appeal dismissed with costs; High Court ruling dismissing the preliminary objection upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that service of the amended plaint on the appellants' former counsel who had represented them before the Supreme Court was good and effective service, as the appellants had given that firm as their address for service and had never lodged a notice changing their address or withdrawing instructions under the Supreme Court Rules. The respondent's later resort to substituted service was a superfluous act that did not render the effective earlier service ineffective, and the respondent was not estopped from relying on it. The trial judge was entitled to evaluate the evidence of service even on a point counsel arguably did not press.

Outcome

Appeal dismissed with costs; High Court ruling dismissing the preliminary objection upheld

Facts

The Supreme Court, in a 1997 judgment, ordered a retrial of a High Court civil suit and directed that an amended plaint be filed and served on the four defendants (the appellants) within 21 days. The respondent filed the amended plaint and obtained summons. A process server, told the appellants were out of the country, served their former counsel who had represented them before the Supreme Court; that counsel declined service, claiming lack of instructions, and returned the documents. The respondent then obtained substituted service by newspaper publication. The appellants' counsel later entered appearance and filed a defence, then raised a preliminary objection that service was defective because substituted service occurred after the 21 days had lapsed and no extension of time had been sought. The trial judge dismissed the objection, finding counsel had been duly served. The appellants appealed.

Issues

  1. Whether the appellants' former counsel was validly served with the amended plaint within the 21 days ordered by the Supreme Court.
  2. Whether the respondent, having later resorted to substituted service, was estopped from relying on the earlier personal service on former counsel.
  3. Whether the trial judge decided the preliminary objection on a point that was not argued before him.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondent.

Rules and key headnotes

Civil Procedure — Service of Process — Service on former counsel as good service
Service of process on the advocate who represented a party in earlier proceedings, at the address given for service, constitutes good and effective service where the party has not lodged a notice changing the address for service or withdrawing instructions.
Civil Procedure — Address for Service — Change requires formal notice
A party who has given an address for service may change it only by lodging a notice of change in the registry and serving copies on all persons served with the previous address; a letter from counsel declining service does not effect a change of address or a withdrawal of instructions.
Civil Procedure — Substituted Service — Effect on prior effective personal service
Where personal service has already been validly effected, a party's subsequent resort to substituted service is a superfluous act that does not render the earlier effective service ineffective, and the party is not estopped from relying on it.
Civil Procedure — Preliminary Objection — Court's power to evaluate evidence
A trial judge determining a preliminary objection is entitled to evaluate the evidence of service on the record and make findings even on a point that counsel may not have expressly pressed in argument.

Legislation cited (4)

  • Supreme Court Rules r.17(1)
  • Supreme Court Rules r.17(2)
  • Supreme Court Rules r.18
  • Supreme Court Rules r.22

Cases cited (7)

  • Erukana Kawuma V Mehta [1960] E.A 305
  • Elikana Omuchilo V Ayub Machiwa [1956] E.A. 299
  • Horizon Coaches v Mutabazi and 3 Others (Civil Appeal No. 20 of 2001)
  • Besweri Lubuye Kibuka v Electoral Commission and Another (Election Petition Appeal No. 2 of 1999)
  • Mbogo & another Vs Shah [1968] E.A 93
  • J.Biryo & 5 others Vs Kamanda [1997] HCB 331
  • Elkan Vs Narshibhai Patel and Another [1950] 340

Full judgment

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Jamal and Others v Shamji (Civil Appeal No. 67 of 2001) [2007] UGCA 78 (5 June 2007)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.