General International Technical Co. (L.L.C) v AYA Investments (U) Ltd (Miscellaneous Application 2546 of 2023) [2025] UGCommC 152 (12 May 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 2546 OF 2023 (ARISING FROM CIVIL SUIT NO. 873 OF 2023)** 10 **GENERAL INTERNATIONAL TECHNICAL CO. (L. L. C) ::::::::: APPLICANT VERSUS**

### **AYA INVESTMENTS (U) LTD ::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **RULING**

#### 15 Introduction

This application was brought by way of Notice of Motion under **Section 33 of the Judicature Act, Cap. 13 (now Section 37 of Cap. 16)**, **Section 98 of the Civil Procedure Act, Cap. 282, Order 8 rules 1, 2 and 19,** and **Order 52 rule 7 of the Civil Procedure Rules, SI 71-1**, for orders that:

- 20 1. The Court be pleased to strike out the Respondent/Defendant's written statement of defence in *Civil Suit No. 873 of 2023* filed out of time without leave of this Court. - 25 2. Costs of this application be provided for.

#### Background

The background of this application is detailed in the affidavit in support deponed by **Ms. Pheona Wall Nabasa**, an Advocate and the Applicant's lawyer in this matter, and is summarized below:

- 5 1. That the Applicant filed *Civil Suit No. 873 of 2023* in this Court seeking recovery of USD 145,250 arising from breach of contract, interest, general damages and costs of the suit. - 2. That the suit was filed on 9th August, 2023, and the summons to file a defence were extracted on 4th September, 2023. - 10 3. That the summons to file a defence together with the plaint were served on the Respondent on 7th September, 2023. - 4. That, however, the Respondent filed its written statement of defence on 26th September, 2023, nineteen days after the Respondent had been served with the summons to file a defence. - 15 5. That the Respondent filed the written statement of defence without seeking leave of this Court.

In reply, **Mr. Abdul Latif Hamid**, the Respondent's Director and Shareholder, opposed the application contending that:

- 1. The Respondent's written statement of defence was filed on 26th 20 September, 2023 which was within the stipulated 15 days. - 2. The affidavit of Mr. Ssebuuma Lawrence is full of falsehoods as he has never seen or interacted with him, and he has never visited his offices. - 3. The Respondent does not employ anyone called "David" as its legal 25 officer, therefore the averment is a falsehood and this application is liable to be struck out on that ground alone. - 4. A corporation unlike an individual is served with the Court process by serving the registered postal address or the company officials such as the directors or secretary and that anything short of that 30 service would not be proper.

- 5 In rejoinder, the Applicant through an affidavit deponed by **Ms. Pheona Wall Nabasa,** reiterated the previous averments and further contended that: - 1. The Respondent was duly served on 7th September, 2023 and the Respondent's agent received the Court summons and the plaint and - 10 that is how the Respondent got to know of *Civil Suit No. 873 of 2023* and also filed a written statement of defence, out of time. - 2. The Respondent cannot deny their own staff who received the Court summons and the plaint on its behalf and even filed a defence to that 15 effect.

### Representation

The Applicant was represented by Learned Counsel Robinson Wamani of **M/s Nabasa & Co. Advocates,** while the Respondent was represented by Learned Counsel Gibson Munanura of **M/s Lawgic Advocates***.*

20 Both parties filed their written submissions as directed and the same have been considered by this Court.

### Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA*

- 25 *No. 55 of 1995*, I shall rephrase the issues so raised to read as follows: - 1. Whether there was proper and effective service of the summons in *Civil Suit No. 873 of 2023*, on the Respondent? - 2. Whether the Respondent's written statement of defence was filed out of time?

## 5 Issue No.1: Whether there was proper and effective service of the summons in *Civil Suit No. 873 of 2023*, on the Respondent?

Applicant's submissions

Learned Counsel for the Applicant first relied on **Order 29 rule 2(a) of the Civil Procedure Rules** and the cases of *Spencon Services Limited Vs* 10 *Onencan Habib, Civil Appeal No. 92 of 2016* and *Kiganga and Associates Gold Mining Co. Ltd Vs Universal Fold NL [2000] 1 EA 134*, on service of summons on corporations.

That under paragraph 4 of the affidavit of service deponed by Mr. Ssebuuma Lawrence, a Court Process Server who executed the service of 15 summons; stated that he knew Mr. Muhammed Hamid, the Respondent's Chief Executive Officer, Director and Chairman of Aya Investments (U) Ltd, since he had tried serving him with the demand notice in the same dispute. That he further deponed that when he reached the Respondent's premises he found Mr. Muhammed Hamid, who instructed a gentleman who

20 identified himself as David to receive the summons and the plaint on his behalf. That the said David duly signed and received the pleadings and the summons on behalf of Mr. Muhammed Hamid, the Respondent's Chief Executive Officer.

Learned Counsel contended that the narration in the affidavit of service 25 was reiterated during Mr. Ssebuuma Lawrence's cross-examination in Court. That therefore, it is evident that service was effected on the Director of the Company, who also doubles as Chairman/Chief Executive Officer of the Respondent, who thereafter instructed David to receive the summons and the plaint. That all these activities happened at the Company's 30 business place at WIN 5 Hotel & Spa, formerly Pearl of Africa Hotel. In conclusion, Learned Counsel for the Applicant reiterated that the service

5 upon the Respondent was effective and within the provisions of **Order 29 rule 2 of the Civil Procedure Rules.**

Respondent's submissions

Learned Counsel for the Respondent also relied on **Order 29 rule 2(a) of the Civil Procedure Rules**. That during his cross examination, the Court 10 Process Server admitted to having not conducted a search so as to ascertain who the principal officers of the Respondent were and that David was not a company secretary. That therefore, the affidavit of service is marred with falsehoods regarding the Court Process Server contending that he knew Mr. Hamid and the Respondent's registered place of 15 business. Further that the Respondent disputes having employed a one David as its legal officer.

Learned Counsel relied on the case of *Kampala City Council Vs Apollo Hotel Corporation [1985] HCB 77* and submitted that since the Court Process Server did not serve the Respondent by sending the summons by 20 post addressed to the registered office or place of business, then service on a person who was not a principal officer of the company was not effective service.

### Applicant's submissions in rejoinder

Learned Counsel for the Applicant in rejoinder submitted that the identity 25 and position of Mr. Muhammed Hamid as the Company Director of the Respondent is not in contestation as the Applicant's Court Process Server had met him before as stated in paragraph 4 of his affidavit of service.

Learned Counsel further contended that the conduct of the Director of the Respondent delegating the receipt of service of summons to another

5 Company officer does not render the service of summons defective as this was done in the presence of and at his directions to the officer.

Learned Counsel reiterated the submission that the written statement of defence filed by the Respondent without seeking the Court's leave to file the same was done out of time and therefore should be struck out with

10 costs.

### Analysis and Determination

I have carefully considered the pleadings, submissions by both Learned Counsel, their authorities and evidence on the Court record to find as hereunder.

- 15 The Respondent contends that the service of the summons in *Civil Suit No. 873 of 2023* was not effective. In his affidavit in reply, **Mr. Abdul Latif Hamid**, the Respondent's Director and Shareholder deponed that he has never met the Court Process Server and has never employed a one David as a legal officer. - 20 **Order 5 of the Civil Procedure Rules** is instructive on the procedure and manner of effecting Court summons.

In addition, **Order 29 rule 2 of the Civil Procedure Rules** sets out rules governing service against a corporation, and it stipulates that:

*"Subject to any statutory provision regulating service of process, where* 25 *the suit is against a corporation, the summons may be served-*

> *a) on the secretary, or on any director or other principal officer of the corporation; or*

5 b) *by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office, then at the place where the corporation carries on business."*

In the case of *Geoffrey Gatete and Another Vs William Kyobe SCCA No.7 of 2005*, the Supreme Court explained what amounts to effective 10 service when it stated that:

"*The Oxford Advanced Learner's Dictionary defines the word "effective" to mean "having the desired effect; producing the intended result". In that context, effective service of summons means service of summons that produces the desired or intended result… There can be* 15 *no doubt that the desired and intended result of serving summons on the Defendant in a civil suit is to make the Defendant aware of the suit brought against him so that he has the opportunity to respond to it by either defending the suit or admitting liability and submitting to judgment.*"

20 Furthermore, in the case of *M/s Semuyaba, Iga & Co. Advocates and Another Vs Attorney General of the Republic of Sudan and 2 Others HCMA No. 4 of 2022* as relied upon by Learned Counsel for the Applicant, **Hon. Justice Stephen Mubiru** stated that:

"*Therefore, in determining whether or not service was effective,* 25 *Court looks at a plethora of factors inter alia; the process server, the conduct of the adversary, the circumstances surrounding the service and the availability of the adversary to deduce whether service was effective or merely good*." 5 In the instant case, the Applicant vide *Civil Suit No. 873 of 2023*, instituted a suit against the Respondent for recovery of USD 145,250.00, interest, general damages and costs of the suit.

On 4th September, 2023, summons to file a defence in the suit were extracted. According to annexure "**B**" attached to the affidavit in support, 10 an affidavit of service dated 22nd September, 2023, deponed by Mr. Ssebuuma Lawrence a licenced Court Process Server, the summons and

plaint were served on the Respondent on 7th September, 2023.

According to annexure **"B"**, Mr. Ssebuuma Lawrence averred that after receiving the summons in *Civil Suit No. 873 of 2023*, on 7th September,

15 2023, he proceeded to the Respondent's Chief Executive Officer's office located on the 1st floor, Pearl of Africa Hotel Building (now Win 5) at Nakasero. Mr. Ssebuuma Lawrence further deponed that he knew the Respondent's CEO Mr. Muhammed Hamid since he had attempted to serve him with the Applicant's official demand notice in the same dispute, three 20 times, in vain.

Considering that the Court Process Server had previously interacted with the Respondent's CEO at Win 5, Nakasero, a fact that was not disputed even during his cross examination, then it was not necessary, in my view, for the Court Process Server to conduct a company search so as to 25 ascertain the Respondent's place of business or its principal officers.

Furthermore, according to annexure **"B"**, when Mr. Ssebuuma Lawrence introduced himself and the purpose of his visit, Mr. Muhammed Hamid, the Respondent's CEO instructed David, who introduced himself as David the Respondent's legal officer, to receive the documents on his behalf. That

30 David, the Respondent's legal officer acknowledged service on behalf of Mr. Muhammed Hamid.

5 The above averments were reiterated and confirmed by Mr. Ssebuuma Lawrence when he appeared in Court on 3rd and 28th March, 2025, for cross-examination on the same.

I have looked at the acknowledgement of receipt, on annexures **"B"** and **"C"**, the summons and plaint attached to the affidavit of service, showing

10 that the summons and plaint were received by David, a legal officer for the Respondent, on 7th September, 2023.

Learned Counsel for the Respondent contended that service of summons and the plaint on a legal officer and not a secretary or director of the Respondent was not effective service. However, in the case of *Crane Bank*

15 *Ltd Vs Kabuye Victoria HCMA No. 719 of 2007,* **Hon. Justice Lameck N. Mukasa** held that a legal officer qualifies as a principal officer of the company, especially in cases where the papers being served are legal documents.

Further, although the Respondent disputes the said service, contending 20 that it was received by David, who is unknown to them, the Respondent's Director does not dispute the averment that the Court Process Server met its CEO at its place of business and handed him the summons.

I have also observed that much as the Respondent disputes the said service, it does not state or adduce any evidence showing when or how it 25 got to know about the case against it for them to file the written statement of defence in issue. A written statement of defence is filed after receipt of the summons and the plaint and it contains the Defendant's defence.

In light of the above analysis, I am convinced by the averments in the affidavit of service and the Court Process Server's testimony during cross-30 examination on the service, and without any evidence to the contrary, this

- 5 Court is convinced that the Respondent was served the Court documents through its CEO who directed that a one David, who identified himself as the Company's legal officer receives the summons and who indeed acknowledged receipt of the summons and the plaint and as result, the Respondent was able to know about the suit against it and consequently - 10 filed the written statement of defence in issue.

Considering that service is deemed effective if the Defendant gets to know of the case against it, then in the circumstances of this case, the Respondent got to know of the case against it and even filed a written statement of defence in its defence.

15 In the premises, my considered view is that the Respondent was duly and effectively served with the summons in *Civil Suit No. 873 of 2023*. Therefore, this issue is answered in the affirmative.

Issue No. 2: Whether the Respondent's written statement of defence was filed out of time?

20 Applicant's submissions

In submission on this issue, Learned Counsel for the Applicant relied on **Order 8 rule 1 of the Civil Procedure Rules** for the provision on the filing of the defence and the cases of *Hon. Maj. Gen (Rtd) Kahinda Otafire Vs The New Vision Printing and Publishing Corporation and Others Civil* 25 *Suit No. 505 of 2019* and *Hajji Ali Seguya Vs Namutebi Madina, Misc. Application No. 242 of 2024* for the proposition that a Defendant who has been served with summons to file a defence shall unless some other further order is made, file his or her defence within 15 days after being served with the summons.

5 Learned Counsel further referred to the cases of *Anne Kahunde Manyindo Vs Tom Atuhaire Mugisa Misc. Application No. 23 of 2022* wherein it was emphasized that compliance with the Civil Procedure Rules is a mandatory requirement that cannot be dispensed with.

That in the instant case, the summons to file a defence were served on the 10 Respondent on 7th September, 2023 as evidenced by the affidavit of service deponed by Mr. Ssebuuma Lawrence, however, the Respondent filed its written statement of defence on 26th September, 2023, 19 days after the service of the summons without leave of the Court.

That the Respondent had the option to apply for enlargement of time under

15 **Order 51 rule 7 of the Civil Procedure Rules** to file out of time but it did not.

In conclusion, Learned Counsel for the Applicant prayed for the same to be struck out with costs.

## Respondent's submissions

- 20 Learned Counsel for the Respondent conceded to the provision under **Order 8 rule 1(2) of the Civil Procedure Rules** and submitted that the time within which to file a defence starts to run when there has been proper and effective service. However, that since there was no effective service, then the parties should be allowed to proceed interparty. - 25 Analysis and Determination

## **Order 8 rule 1(2) of the Civil Procedure Rules** stipulates that:

*"Where a Defendant has been served with a summons in the form provided by rule 1(1)(a) of Order V of these rules, he or she shall,*

5 *unless some other or further order is made by the Court, file his or her defence within fifteen days after service of the summons."*

This provision has been emphasized in various cases including; *Stop and See (U) Ltd Vs Tropical Africa Bank Ltd HCMA No. 333 of 2010, Hon. Maj. Gen (Rtd) Kahinda Otafire Vs The New Vision Printing and* 10 *Publishing Corporation and Others (supra)* and *Hajji Ali Seguya Vs Namutebi Madina (supra).*

It is the Applicant's contention that the Respondent herein filed its written statement of defence out of time, though the Respondent insists that the written statement of defence was filed within the required timeline.

- 15 As earlier noted, summons to file a defence in *Civil Suit No. 873 of 2023,* were issued on 4th September, 2023 and served onto the Respondent on 7th September, 2023 as per the affidavit of service, annexure **"B"** attached to the affidavit in support. According to the Court record and as averred by the Respondent, the written statement of defence was filed on 26th - 20 September, 2023.

Therefore, the Respondent filed its written statement of defence 19 days after service of the summons, which was outside the stipulated timeframe of 15 days within which it ought to have filed the same.

I am alive to the fact that Court has the discretion to extend the time within 25 which the written statement of defence can be filed, if sufficient cause is shown. (See: *Hadondi Daniel Vs Yolam Egondi C. A. C. A No. 67 of 2003*). However, in the case at hand, the Respondent has not adduced any evidence to show why it was unable to file the written statement of defence on time nor has it taken any steps to seek leave to file its written statement 30 of defence out of time. I have also noted that the Respondent did not even

5 pray to have the written statement of defence already on record, validated. In the premises, this Court cannot condone this illegality.

Consequently, I hereby strike off the record, the Respondent's written statement of defence dated 26th September, 2023 and filed on the same day.

10 Costs of the application are awarded to the Applicant.

I so order.

Dated, signed and delivered electronically via ECCMIS this **12th** day of **May**, **2025.**

Patience T. E. Rubagumya **JUDGE** 12/05/2025

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