Automated Summary
Key Facts
The court dismissed Kampala City Council's application to strike out Victoria International Trading Co. Ltd's contract breach suit. The plaintiff provided a notice with stamp and signature, and the defendant failed to rebut the service. The applicant's affidavit was invalid as it was based on a person not in office at the time.
Issues
- The applicant's affidavit by Ruth Kijjambu, who claimed to be the Assistant Town Clerk, was challenged for being based on hearsay rather than personal knowledge. The court ruled her statements in the affidavit were not factual evidence but unverified opinions, rendering the application incompetent under Order 19 of the Civil Procedure Rules.
- The applicant referenced a non-existent legal provision (Order 11 r. (d)) to justify striking out the plaint. The court noted this error but concluded it did not affect justice, as the applicant likely intended to rely on Order 7 r. 11 (d). The court dismissed the application due to reliance on an invalid legal basis.
- The court determined whether the plaintiff served the mandatory 45-day statutory notice of intent to sue on the defendant (Kampala City Council) as required by Section 2(1)(b) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72, and Regulation 26(1) of the Local Governments Act, Cap 243. The defendant challenged the service, arguing no valid notice was delivered, while the plaintiff provided a stamped and signed copy of the notice allegedly received by the Town Clerk's office.
Holdings
- The court rejected the applicant's argument that the statutory notice was not served on the defendant. The plaintiff provided a notice bearing a Town Clerk's stamp, 'Received' notation, and a signature, which the court deemed sufficient to shift the burden of proof to the defendant. The defendant did not produce evidence to challenge the authenticity of the stamp or signature, failing to rebut the presumption of valid service.
- The court dismissed the applicant's preliminary application with costs to the respondent, finding no merit in the legal argument that the plaintiff's action should be struck out for non-service of statutory notice. The court held that the plaintiff's evidence of service (a stamped and signed notice) created a presumption of valid service, which the defendant failed to rebut. Additionally, the application was deemed incompetent due to the affidavit supporting it being sworn by an individual not in the relevant position at the time and based on opinion rather than firsthand knowledge.
Remedies
The application is dismissed with costs to the respondent, certified for one counsel only.
Legal Principles
- The court emphasized that the burden of proof lies with the party asserting the affirmative of an issue. In this case, the defendant's denial of service shifted the burden to the plaintiff to prove that the statutory notice was served, as required by law. The plaintiff's production of a stamped and signed notice created a presumption of service, which the defendant failed to rebut with evidence.
- The court applied the principle that evidence sufficient to raise a presumption of truth (such as a stamped and signed notice) requires the opposing party to disprove it. The defendant did not challenge the authenticity of the stamp or signature, leaving the presumption unrefuted and the plaintiff's claim standing.
Precedent Name
- Fancy Stores Ltd & Anor -Vs- UCB
- Michael Sansa & Others -Vs- K.C.C
Cited Statute
- Civil Procedure and Limitation (Miscellaneous Provisions) Act
- Civil Procedure Rules
- Local Governments Act
Judge Name
Yorokamu Bamwine
Passage Text
- 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... What she states can at best be an opinion not based on any facts... 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.
- 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.