Magson Construction Co. Limited v Uganda Airlines Corporation (Civil Suit 104 of 1990) [1990] UGHC 39 (17 July 1990)

Full Case Text

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 1OA OF 1990

M/S MAGSON CONSTRUCTION CO., LTD PLAINTIFF. VERSUS

UGANDA AIRLINES CORPORATION . ... DEFENDANT. BEFORE:- The Honourable Mr, Ag. Justice J. W. N. Tsekooko'

## R U L I N G

When this suit came up for hearing before me on 12th July. 1990 learned counsel for the defendant Mr. Kabugo, raised a preliminary point to the effect that the suit was incompetent because it was instituted before notice of intention to sue was \*cerved upon the defendant as required by the provisions of the Civil Procedure And Limitations (Miscellanous Provisions) Act, 1969.

Mr. Ayigihugu, learned counsel for the plaintiff in response stated that the notice of intention to sue was effected by his lav; clerk, Willy Mukasa whom he produced to verify this. I put Mukasa on oath. He testified that he had been handling Mrt Ayigihugu's file concerning this case. He testified that on 5th December, 1989 he delivered a notice of intention to sue to the office of Corporation Secretary of the defendant. His crucial piece of evidence is this. 1!0n going to the office of Corporation Secretary., I found two girls. One is called Gladays. After introducing myself and the purpose of ray presence Gladays received the letter and offered me a seat. She then entered the office of Corporation • : <V. •' . . : r • Secretary where she stayed for about five minutes. She then came out and said "you can go it is okey". I took only

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1 copy of the letter.. On returning to chambers I wrote on office file cover of this case".

The witness produced the file which was then in custody of Mr. Ayigihugu since he. was using. it as his case file. . I perused .the^chronological entries on the cover file and noted an entry in black ink dated 5th December, 1989 which read nNotice of intent io,i; ,t.ci .sue Uganda Airlines11 This was followed by many other subsequent various entries., Mr. Kabugo was shown the same. I did not find it necessary to retain the file.

In cross-examination the witness explained how he has been serving court process and Notice of intention to sue.. He stated that at the time the firm!s delivery book had been exhausted so he could not use it on this occasion and hadnft yet acquired another. The witness did not take to the Corpo-Secretary rationytwo copies of the notice for purposes of securing receipt acknowledgement endorsed on the second, copy because previously the same Corporation officials had declined to so endorse on a letter dated 29th November, 1989 written and delivered to them connected with this suit. This letter was shown to Mr. Kabugo. ' .

In the course of his cross-examination of this witness Mr. Kabugo surprised me when he produced for the cross-examination of tho witness the same notice of intention to sue whose existance and service upon the defendant, he had denied. I was left wondering whether Mr. -Kabugo did not receive adequate instructions from his clients or whether the preliminary objection was not raised in serious voin in which case the preliminary objection would in my considered view be perils-

usly close to ah abuse of court process\* Mr. Kabugo did not in anyway attempt to remove these impressions VLhen he made his submissions, - •

Be that as it nay, the notice Mr. Kabugo produced and which the witness .said\* he' had delivered is dated 5th December", '1989\* Upon it there is a stamp purporting to be of Corporation Secretary Uganda Airlines Corporation with the date 22nd January, 19909 It doesn't show whether it is a stamp for receiving or for any other purpose. Within the space covered by the stamp there is no other writing either in a form of signature or name of Corporation official or any explanation as to why the stamp was put there.

The witness denied that he in fact delivered the notice on 22nd January, 199p.

In continuation c.f his submissions Mr, Kabugo contended that the suit is incompentent for lack of notice; that the notice dated 5th December, 1989 was in fact delivered on 22nd January, 1990 and not earlier, that as the notice is a legal requirement delivery of it should be supported by documentary proof. He submitted that the record on Mr. Ayigihugu file cover was not reliable.

In response Mr. Ayigihugu submitted in effect that the requirements of the law had been complied with in serving the notice, that there was no requirement that service of the notice should be acknowledged in as much as nude of service has' not been laid down. He further submitted that since there is sworn evidence in support of service it was now incumbent upon the defendant to produce evidence rebutting the claim that service was in fact effected on 5th

December, 1989\* That the existance of stamp on the notice with date 22nd January, 1990 is not enough evidence that it was served on 22nd January, 1990. He. finally submitted that the note on his. cover file is corroboration of the testimony of the witness who .effected service.

*Li - . .*

It is provided by the Civil Proceudre And Limitation (Miscellahous Provisions) Act, 1969 under section 1 as follows;

"1 (i) After the coming into force of this Act, not withstanding the provisions of any other Written law,tno suit shall lie or be instituted against: c • (c) a scheduled Corporation until the expiration of sixty days next after written notice has been delivered to or left at the office of the person specified in schedule 1 to this Act, stating the name, description and place.of residence of the intending plaintiff, the name of the court in which it is intended the suit is to be instituted, ± . the facts constituting the cause **01?**

action .?.o the value of the-'subject matter of the intended suit.

(2) The written notice required by the provisions of this section shall be in the form set cut in schedure 2 to this Act and every plaint subsequently filed shall contain a statement that such notice has been delivered o.y left in accordance, with the provisions of this section.".

And according to schedule 1 to the Act a person at or to whose office notice is to be delivered or sent in the case of a scheduled Corporation which the defendant is in our case is the Secretary of the Corporation.

As submitted by Mr. Ayigihugu the mode in which the notice is to be served ia not specified. Section 1 talks of "after written notice has been delivered to or left at the office of the person specified in schedule 1". Similarly the schedule 1 talks of "person at or to whose office notice to be delivered or sent". There is no evidence of any established method or practice of service of notice such as

that advocated for by learned .counsel for the defendant\* The word ''deliver" ordinarily means ''take to" and the word ''left" \* which in this sense is the past participle of ''leave" means ordinarily "allouod"or" caused to remain in a. certain place". Whatever word may be preferred, .the obvious construction to be placed on "delivered"of "left" 'or ''Sent" would not in my view be such a construction that would include an element making it mandatory for the intended plaintiff to obtain an acknowledgement by the intended-defendant of receipt of notice of intention to sue. Naturally it is convenient and good practice for the plaintiff to have evidence of service such a postal registered letter receiptsignature in delivery book.,/..endorsement by defendant on duplicate copy of the-notice or

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On the evidence available I am satisfied that the notice was effectively served upon the defendant. This case is different from the cgse of LYAKIYE Vs. Attorney-Gnera'l /19737 IULR 124 where defendant's employee received a notice which was not signed by either the plaintiff or his advocate. The employee referred the notice back to the plaintiff's advocate with advice that the notice should be signed which was not done. Lubogo, J, as he then was, quite rightly in my considered view, held that service was not effective because the unsigned notice was defective.

acknowledgement reply but but these are not legal requirements.

I therefore hold that-Mr. Kabugo's submission that there was no service has no basis.

In that connection and within the context of this matter it should be borne in mind that effective service is very defferent from no service at all in as mpch as it is also

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fundamently defferent from instituting intended suit prematurely, that is, before the expiration of the 60 days. I should therefore now consider whether service was effected on 5th December, 198-9 os submitted by Mr. Ayigihugu- or on 22nd January, 1990 as Mr. Kabugo eventually, suggested, In the latter case filing the suit on 1Jth February-,- 1990 would-be premature\*

The plaintiff has produced evidence on oath that service was effected on 5th December, 1989 by Willy Mukasa who firmly maintained that service was effected on 5th December, 1989 as shown by the entry on his office file of same date. The contents of the note read "Notice of Intention to sue Uganda Airlines" Mr. Kabugo did not probe the witness on -the meaning to be attached to the note. The witness stated that that was his evidence to show that he took the notice- to the defendant. The witness named Gladys as the employee of the defendant who received the- notice. The note on the file is as much consistent with saying that the notice- was issued that day as much as in showing that it was served on that day. However there is sworn evidence to support the letter view. As I have said the witness named an employee of the defendant to whom he claims to have served . the notice. The witness was not taken to task on the.meaning of the contents of the note. It was open to the defendant to produce Gladys tp... challenge the assersion of Mukasa, This was not done. No suggestion was made to say she nevpr received it or that she is not an employee of defendant.

Further the notice whose service had been denied was eventually produced by the same counsel for the defendant who had denied its service..

*h..* The notice is dated 5th December, 1989. It bears some stamp, purporting to be that of Corporation Secretary of the defendant. Defence counsel submitted that I should- hold that in fact.the notice was served on 22nd January, 1990- I am afraid,; I, am not persuaded that this is so nor is there evidence toshow that service was in fact effected on 22nd January, 1990 and not on 5th December, 1989- Defence counsel says that the record on Mr. Ayigihugu's file is unreliable\*. I looked at the file. It had entries dated before and after 5th December, 1989 chronologically showing stops taken on the case.' There did not appear to be any suspecion about the entry. In the context of his matter I find nothing suggestive of the inference of unreliability. I have considered all the circumstances of this case this far and I consider the date 22nd January, 1990 to be inconclusive and even meaningless to me. Nobody knows when and-^or what purpose the stamp was put on the **'letter.** I can't place importance on the date when counsel had at first denied the service of the notice on the defendant.

I am satisfied that service of the notice was effected on 5th December, 198\*9 and I so find as a fact.

According to section 3^ (1) (a) of the Interpretation Decree, 1976, in computing time for the purpose of any Act, a period of days from ••• the doing of any act or thing shall be deemed to be exclusive of the day bn which the act or thing is "done. Accordingly I find that the statutory period of 60 days after service -6f notice of intention to sue began on 6th Decomber-, -19.89. and expired on 3rd February, 1990. Since the suit whs instituted on 13th February, 1990 I find that

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the suit was not filed prematurely and therefore the same is properly before the court. I would have dismissed this objection on this score.

I may also observe that on 26th February, 1990 the defer. ndant filed notice of motion seeking leave to defend the suit, Neither the notice of motion nor the accompanying affidavit referred to non service of statutory notice of intention to Further the plaint averred in paragraph 8 thereof that, sue. inter alia, statutory notice was served. Prematurity as such of institution of the suit was not raised in Written Statement of Defence. I know matters of notice of intention to sue are matters of law which can be raised at any stage in the proceedings but the case for the defence was handled by experienced advocates and I am tempted to believe that if the notice had not been served or the suit filed prematurely this would have been as important matter to be raised when seeking leave to defend since if established it would result in the end of the suit during the consideration of the Notice of motion. In these circumstances I believe the notice was served.in due time.

For the reasons I have given the objection fails and is dismissed with costs to the plaintiff.

$\cdots \quad \ldots \quad \ldots$

J. W. N. TSEKOOKO $AG. J U D G E$

$17/7/1990.$

19/7/1990.

Plaintiff present. Resida for plaintiff. Mr. Kabugo for Defendant. Muwonge •' interpreter. Ruling delivered in presence of the above.

J. VI. N. TSEKOOKO

AG. JUDGE 19/7/1990