Wakilii

Salim and Another v Shamji (Civil Appeal No. 67 of 2001)

Court of Appeal · [2003] UGCA 49 · 2003 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 summons
Decision
Appeal dismissed with costs to the respondent; the High Court ruling that there was effective service stands.

Observed later treatment

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Holding

The Court of Appeal dismissed an appeal against the High Court's refusal to uphold a preliminary objection on service. The Court held that service on the appellants' advocates, who had represented them before the Supreme Court and had not been shown to have withdrawn from the matter, was good and effective service under the Supreme Court Rules. Where a party has given an advocate's address as the address for service, that address remains valid until changed by notice under rule 18. The respondent's subsequent resort to substituted service was a superfluous act that did not render the already effective personal service on counsel ineffective. The appeal was found devoid of merit.

Outcome

Appeal dismissed with costs to the respondent; the High Court ruling that there was effective service stands.

Facts

The Supreme Court, in a judgment dated 14 April 1997, ordered a retrial of a High Court suit and directed that the amended plaint be filed and served on all four appellants within 21 days. The respondent's process server attempted to serve the appellants' advocates, who had represented them before the Supreme Court, on 5 May 1997. Counsel (Mr. Babigumira) wrote a letter dated 5 May 1997 declining service, stating he had no instructions. The respondent then effected substituted service by advertisement in the New Vision newspaper. Mr. Babigumira subsequently entered a statement of appearance and filed a written defence for the appellants. At the hearing of the retrial, the appellants' counsel raised a preliminary objection that there had never been due service of the summons because the substituted service was effected after the 21 days had lapsed without any application for extension of time. The High Court (Ogoola J) dismissed the objection, holding that counsel had been duly served, prompting this appeal.

Issues

  1. Whether the appellants' counsel who represented them before the Supreme Court was validly served with the amended plaint and summons within the 21 days ordered.
  2. Whether service on former counsel constituted good service where the appellants had given that firm as their address of service.
  3. Whether resort to substituted service after service on counsel deprived the respondent of the right to rely on personal service to counsel.
  4. Whether the trial judge erred in deciding the objection on a point 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 Advocate as Good Service
Where a party has given an advocate's firm as its address of service, valid service of court process may be effected on that advocate, and such service remains good service so long as the advocate has not been shown to have withdrawn from the matter.
Civil Procedure — Address for Service — Change of Address Requires Formal Notice
A party who has given an address for service may change that address only by lodging a notice of the change and serving copies on all persons who have been served with the previous address, in accordance with rule 18 of the Supreme Court Rules; a mere letter from counsel is insufficient to show a change of address or withdrawal of instructions.
Civil Procedure — Substituted Service — Effect of Superfluous Substituted Service
A subsequent resort to substituted service does not render ineffective an earlier valid personal service on counsel; the substituted service is merely a superfluous act and does not deprive the serving party of the benefit of the effective personal service already accomplished.
Civil Procedure — Preliminary Objections — Court's Power to Evaluate Evidence on Service
A trial judge is entitled to evaluate the evidence on service and to hold that there was effective service even where an argument on service was allegedly abandoned or not specifically pressed by counsel.

Legislation cited (3)

  • Supreme Court Rules rule 17(1) and (2)
  • Supreme Court Rules rule 18
  • Supreme Court Rules rule 22

Cases cited (7)

  • Erukana Kavuma V Mehta [1960] E.A 305
  • Elikana Omuchilo V Ayub Machiwa [1956] E.A. 299
  • Horizon Coaches v Francis Mutabazi and 3 Others (Civil Appeal No. 20 of 2001)
  • Besweri Lubuye Kibuka v Electoral Commission & Another (Election Petition Appeal No. 2 of 1999)
  • Mbogo & another Vs Shah [1958] E.A 93
  • J.Biryo & 5 others Vs Kamanda [1997] HCB 33
  • W. Elkan Vs Narshibhai Patel and Another [1960] 340

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Salim and Another v Shamji (Civil Appeal No. 67 of 2001) [2003] UGCA 49 (20 November 2003)
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.