THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 406 OF 2010

ARISING FROM HIGH COURT CIVIL SUIT NO 61 OF 2002

DAVID SSESANGA………………………………………..…………………..……
APPLICANT

VERSUS

GREENLAND BANK LTD (IN LIQUIDATION)

……………………………………………………………….RESPONDENT

Before Hon. Justice Christopher Madrama

Ruling

The Applicant brought this application under order 52 rule 1 and 2, order 36 rule 11 Civil
Procedure Rules and section 98 of the civil procedure act for orders that:

1. the execution of the decree in High Court Civil Suit No. 61 of 2000 be stayed
2. the decree in High Court civil suit number 61 of 2000 be set aside
3. the costs of the application are provided for

The application is supported by the affidavit of the Applicant Mr. David Ssesanga and the
grounds of the application include the following:

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 1. That the order to serve summons by way of substituted service was erroneously
and dishonestly obtained by the respondent.
2. That the purported service of summons by substituted service was ineffective.
3. That is in the interest of justice for all parties that the execution of the decree be
stayed pending determination of the application for setting aside the decree.

The Applicant deposes in his affidavit sworn in July 2010 to the following facts.

In the year 1994 the Applicant obtained an overdraft facility from the Respondent bank which
facility was secured by titled land comprised in Buwalakata in Bulemezi. While he was away in
the UK his family informed him that the Respondent had attached and sold security pledged for
the overdraft facility namely the said land, a BMW saloon car, a Toyota ED, a Jiefang Truck, and
woodwork machinery, which, according to his belief settled his indebtedness to the bank. Since
1995 he has been in the United Kingdom and only came back to Uganda in the year 2008. He
avers that he was never informed of the existence of any suit against him. He only found out
about the suit in June 2010 eight years after its institution when a notice to show cause why a
warrant of arrest shall not issue against him was delivered at his father’s House in Mengo
Kampala. Thereafter the applicant established through his lawyers from court record that a suit
had been filed against him in 2002 by summary procedure and summons to apply for leave to
defend was served by way of substituted service ordered by court. He avers that substituted
service can be ordered where service could not be effected in the normal (or ordinary) manner.
He avers that his physical address was known to the respondent. Consequently, the ground for
the grant of the substituted service that his address was unknown was false and misleading. He
further avers that by the time of the order for substituted service in the New Vision Newspaper of
29th June 2002 he was out of the country. Consequently the applicant avers that service was not
effective.

The Respondent’s affidavit in reply is sworn by one Maliza Kwera Counsel for the Respondent
on the 17th of November 2010. Maliza Kwera avers that the applicant sought and was granted an
overdraft facility by the Respondent but did not settle his indebtedness and by the 8 th of June
2010 the indebtedness of the applicant was Uganda shillings 257,199,602/= including interest
and costs as expressed in the warrant of arrest in execution dated 1 July 2010; The Respondents
representative further avers that the Applicant was properly and effectively served by way of

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substituted service as ordinarily service of court process upon him were futile because his
physical address could not be traced in his file with the Respondent.

Counsel Richard Nsubuga appeared for the Applicant/judgment debtor while Counsel Noah
Wesige appeared for the Respondent/judgment creditor

Counsel Richard Nsubuga submitted that the order to serve service of summons was erroneously
and dishonestly obtained by the Respondent and the purported service was therefore ineffective.
He recounted the facts in the affidavit in support. He submitted the Applicant did obtain a loan
facility from respondent in 1994. However since 1995, the Applicant 1995 had been out of the
country and only returned 2008. He referred court to annexure “A”, “B”, “C”, and “D” to the
Applicant’s affidavit as proof that for the material period in question that the Applicant was a
resident of the United Kingdom. That the applicant was informed that his property had been sold
to satisfy a debt he owed the Respondent while he was in the United Kingdom and before the suit
was filed. The Applicant believed that his debt had been fully settled by sale of his property by
the bank.

Counsel submitted that the Applicant became aware of the suit only after been served of a notice
to show cause, annexure “E” to the affidavit in support. He emphasized that the ground for
substituted service was that the Applicant could not be found neither his physical or postal
address. He submitted that this was erroneous and misleading because the Applicant had availed
his physical and postal address to the Respondent. Further submitted that the warrant of arrest
was fraught with misrepresentations as the Applicant was never served with notice to show
cause. He submitted that the Applicant had a defence in that his property had been sold in
satisfaction of the debt and also that the compound interest could not be legally charged as had
been done in this case. Counsel further submitted that the plaint upon which the decree was
obtained was improper in that even the statement of account of the Applicant was not attached.
Counsel referred to the case of Geoffrey Gatete and Angela Nakigonya vs. William Kyobe
Supreme Court Civil Appeal No. 7 of 2005. The Judgment of Mulenga JSC particularly from
pages 8 second paragraph to page 9 thereof.

In this case Hon. Mulenga JSC examines order 36 rule 11 and at page 8 looked at what is
deemed good service and effective service. The Hon Judge of the Supreme Court held that the

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term “effective” means having the desired effect or producing the intended/desired result.
“Effective service” means service having the intended or desired effect and the contrary is true.

He submitted that the Respondent would to have known that the Applicant was out of the
country. In any event there was no effective service and the defendant was not given an
opportunity to defend himself. He submitted that the Applicant as a responsible person would
have taken steps to defend the suit had he known. That the bank charged compound interest
which was not lawful. That in any case the suit was barred by the statute of limitations.
Consequently there are triable issues.

Counsel Noah Wesige opposed the application. He submitted that counsel for the Applicant Mr.
Nsubuga added another remedy which is to seek leave to appear and defend. According to him
the orders quoted for the application do accommodate such a remedy. He prayed that court takes
note of that. That the application substantially challenges service and gives grounds for stay of
execution and setting aside. On the other hand Counsel for the Applicant advances other grounds
which are erroneous. He invited court to have submissions on extraneous matters outside the
pleadings expunged from his submissions.

Counsel for the Respondent’s reply on the submission quoting rule 11 of order 36 and the
definition of Hon. Justice Mulenga JSC was that, the word “effective” means service producing
the intended result. That should be by serving defendant personally. From the affidavit in support
paragraphs 3 and 4, he submits that the Applicant admits that he was not there to be served
personally because from 1995 he was not in Uganda but in the United Kingdom. The Applicant
does not show that he had notified the Respondent Bank when he left the country.

In his opinion the Applicant left the bank no choice. Furthermore referring to the affidavit of
James Kalende paragraph 3 thereof, the Applicant’s physical address at the time of execution of
the loan was not known. According to the bank the loan application documents which were
executed did not have the Applicant’s physical address.

The Respondent’s counsel submitted that prior efforts had been made to serve the applicant in an
ordinary manner. But they failed on account that his physical address could not be found and
secondly because it was impossible because the applicant was outside jurisdiction which by
default left the bank with the only option of seeking service through the media. However the
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bank had no knowledge that the applicant was resident outside jurisdiction. This is important
to take note of. Counsel invited court to note that the applicant had been informed by his family
while he was outside the country that the bank had attached his property. (Like saying why did
they not inform him about the suit when advertised in the papers?) In his submission the
applicant imposed a duty on the bank that it ought to have known that he was out of the country.
That if they had done investigations they should have known. In his view the bank was not
obliged to do that or investigate where he was. The duty of the Respondent bank was only to
look for the place where he ordinarily resided. Once they failed to establish this they had to seek
orders for substituted service.

Counsel for the Respondent wondered why if the bank had sold the Applicant’s property, there
was no documentation of any kind? Where is the evidence? He submitted that it was obvious that
the Applicant did not have the evidence. Whether property was attached by the bank with respect
to the specific debt is the issue which the applicants counsel ought to have found evidence for.
Regarding the propriety of the respondents specially endorsed plaint for a summary suit, he
submitted that the statement of account of the applicant was attached contrary to the submissions
of the applicants counsel paragraph 5 of the plaint refers. As far as the issue of interest is
concerned he submitted that upon closure the interest on the principle should have stopped
running.

As far as the issue of limitation is concerned, counsel for the Respondent submitted that this was
speculative. In his opinion banks can choose when to recall the facility. This can, knowing the
nature of loan facilities, stretch for up to 10 years before the loan is recalled after default. Some
loans are recalled earlier and this is a matter of the discretion of the bank.

Order 5 CPR rule 18 deals with ordinary service. An order was made and adverts were run. All
that is required is that the plaintiff should have served the summons in a manner prescribed by
court. To that extent, service was effective and proper. Orders made pursuant to substituted
serviced were effective. He prayed that the application is rejected wit costs.

In rejoinder Mr. Richard Nsubuga counsel for the Respondent submitted that leave to appear
and defend under order 36 rule 11 of the Civil Procedure Rules and rule gives court power where
a decree is set aside to give leave to defendant to appear and defend. This is a consequential

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remedy and may be given in the interest of justice. He submitted that there are various modes of
service. The preferred service is service on the person. He submitted that it is banking practice
that banks do not give money without personal details. He reiterated his submission on
compounded interest. As far as substituted service is concerned he wondered whether they
looked for the Applicant’s physical address.

I have perused the pleadings and attachments thereto and carefully considered the submissions of
counsel for the parties. The cardinal issue in this application is whether there was effective
service of summons by way of substituted service on the Applicant/defendant. The fact of
the Applicant/defendant being served by way of substituted service in High Court Civil Suit No.
61 of 2002 in the New Vision of 29 th June 2002 is not in dispute. The resolution of the cardinal
question as to whether the substituted service was effective or valid would in my judgment
effectively resolve this application brought under order 36 rules 11 of the Civil Procedure Rules:
Order 36 rule 11 of the CPR provides as follows:

“11. Setting aside decree

After the decree the court may, if satisfied that the service of the summons was not
effective, or for any other good cause, which shall be recorded, set aside the decree, and
if necessary stay or set aside execution, and may give leave to the defendant to appear to
the summons and to defend the suit, if it seems reasonable to the court so to do, and on
such terms as the court thinks fit.” (Emphasis added)

What the court needs to be satisfied about is whether the service of summons in the particular
circumstances of the case was effective or whether there was some other good cause to set aside
the decree. Was service of summons effective or was there some other good cause why the
decree should be set aside or why execution be stayed or set aside and defendant be given leave
to appear and defend the suit? In my judgment where the question of service is decided the court
does not have to look into other matters like whether there are triable issues, which go to the
merits of the suit. Those issues can only be dealt with if the court finds that service was good.
Whether or not there was proper service is a fundamental question affecting the right to be heard
and should be tried first. It deals with the basic principles of natural justice, which principle is
one of fundamental rights and freedoms enshrined under article 28 (1) of the Constitution of the
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Republic of Uganda. Clause 1 thereof provides that: “In the determination of civil rights and
obligations or any criminal charge, a person shall be entitled to a fair, speedy and public
hearing before an independent and impartial court or tribunal established by law.” The question
of fair hearing includes an element of a right to be heard in the matter. The common law adage
for this is “no one should be condemned unheard”. It is not only the right to be heard but a right
to a fair hearing. It is therefore prudent to deal firstly with the fundamental question of whether
the service on the Applicant by substituted service was good or not.

Resolution of this issue revolves on whether substituted service made in ignorance of the
absence of the defendant from jurisdiction is fatal. I do not seek to determine or lay out general
rules or circumstances in which service on a person who at the time of substituted service is
outside jurisdiction for whatever reason is effective or a nullity.

Can substituted service be made on a person who is outside the jurisdiction of the court? If it
cannot but is nonetheless made in ignorance of the fact that the person is outside jurisdiction, can
the service be held to be effective and valid?

We examine the circumstances of this application, there is no dispute as to the fact that the
applicant was outside the country in the United Kingdom between the years 1995 – 2008.
Neither is there a dispute as to the fact that substituted service was ordered in June 2002 for
service on the defendant. There is also no dispute that the applicant by the time he left owed the
Respondent Bank some money which had been advanced him as an overdraft.

Order 14 rule 6 of the civil procedure rules sub rule 1 CPR provides that the court may on its
own motion, and may in its discretion upon the application of any of the parties to the suit, send
for, either from its own records, or from any other courts, a record of any other suit or proceeding
and inspect the record.

Whereas the above provision deals with proceedings in any other suit, I have perused the file of
main suit, namely High Court Civil Suit No. 61 of 2002, and examined the record. The
Respondent filed a suit in February 2002 claiming inter alia 72,660,998 shillings. It is averred
that the applicant over drew his account as at 31st of March, 2001. And that the balance attracted
an interest of 25% per annum. The suit was filed by way of summary procedure under order 33
as it then was of the Civil Procedure Rules (Now order 36 revised edition of the rules).
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Summons was first issued on the 25 th of February, 2002. The record shows that summons were
again re-issued on the 10th of June, 2002. The affidavit of James Bentley Kalende avers as
follows: “...

1. That I am duly authorized to effect court process by the High Court of Uganda
and all courts subordinate thereto and swear this affidavit in that capacity;
2. That summons in summary suit were issued for service upon the defendant but
service could not be effected upon the defendant in the normal manner, as the physical
address of the defendant was not availed to the plaintiff bank;
3. That Mr. Moses Adriko counsel for the plaintiff applied and an order for
substituted service was made…
4. That Moses Adriko instructed me to advertise the said summons in the new vision
newspaper, which appeared on the 29th day of June 2002 [original copy of the newspaper
is hereto attached marked “A”]...”

The affidavit of Bentley Kalende is dated 23 rd of July, 2002. Subsequently, judgment was entered
as prayed for in the plaint on the 31st of July, 2002.

From the affidavit of James Bentley Kalende the reason why the defendant could not be traced
for purposes of service was because his physical address had not been availed to the plaintiff
bank. It should be noted, that the Applicant does not contest the fact that he was indebted to the
bank to the tune of over 72,000,000 Uganda shillings. He avers that his property was attached
when he was out of the country. No documents have been adduced in evidence to prove these
facts. More evidence would be required to establish what the actual facts are as what is available
on record is not sufficient.

The sole question is whether service on the Applicant by substitute service when he was a
resident of the United Kingdom between 1995 and the year 2008 was effective service as
envisaged under rule 11 of order 36. The wording of rule 11 would be important for this analysis.
It provides in part that court has to be: “…satisfied that the service of the summons was not
effective ...” Was service not effective? Is effectiveness of service a question of fact? The case of
Geoffrey Gatete and Angela Maria Nakigonya versus William Kyobe Supreme Court Civil
Appeal No. 7 of 2005 is instructive. The judgment of the court was delivered by Mulenga JSC

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with concurrence of the rest of the panel of Supreme Court Judges. At page 8 second paragraph
to page 9 quote:

“It is apparent that in concluding that assumed service on Matsiko Kasiimwe was
effective service, the courts below took the expression “deemed good service” referred to
in order 30 rule 3 and the expression “effective service” referred to in order 36 rule 11 to
mean the same thing and actually use them interchangeably. In my view, the two
expressions are significantly different.

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.
Conversely, in ineffective service of summons means service that does not produce such
result. There can be no doubt that the desired and intended result of serving summons on
the defendant in the 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. The surest mode of achieving that result
is serving the defendant in person. Rules of procedure, however, provide for such diverse
modes for serving summons that the possibility of service failing to produce the intended
result cannot be ruled out in every case.

For example, in appropriate circumstances service may be lawfully made on the

defendant’s agent. If the agent omits to make the defendant aware of the summons, the
intended result cannot be achieved. Similarly, the court may order substituted service by
way of publishing the summons in the press. While the publication will constitute lawful
service, it will not produce the desired result if he does not come to the defendants notice.
In my considered view, these examples of service envisaged in order 36 rule 11 as
“service (that) was not effective.” Although the service on the agent and substituted
service would be “deemed good service” on the defendant entitling the plaintiff to a
decree under order 36 rule 3, if it is shown that the service did not lead to the defendant
becoming aware of the summons, the service is “not effective” within the meaning of
order 36 rule 11. (See Pirbhai Lalji vs. Hassanali (1962) EA 306).

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 The word “deemed” is commonly used in legislation to create legal or statutory fiction. It
is used for the purpose of assuming the existence of the fact that in reality does not exist.
In St Aubyn (LM) vs. Attorney General (1951) 2 All England reports 473, at page 498
Lord Radcliffe describes the various purposes for which the word is used where, he says
–

“the word “deemed” is used a great deal in modern legislation. Sometimes it is

used to impose for the purpose of the statute an artificial construction of the word
or phrase that would not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be uncertain. Sometimes it is
used to give a comprehensive description that includes what is of use, what is and
certain and what is, in the ordinary sense, impossible.”

In my view, the expression “service that is deemed to be good service” is so broad that it
includes service that would not produce the intended result, which therefore is not
effective.”

The court makes a clear distinction between deemed service and effective service. A service that
is deemed to be good service does not have to be effective however; effective service must
produce the desired effect, which is to make the defendant aware of the suit. Using the analogy
of the above case, there was no effective service on the applicant because he was not aware of
the suit. He only became aware when he was served with notice to show cause why a warrant of
arrest should not issued against him. Secondly he was out of jurisdiction. Rule 11 of order 36
would have been sufficient to define the service as not effective. This is not however the end of
the inquiry.

Counsel for the respondent, submitted that the plaintiff/respondent was not aware that the
defendant was out of jurisdiction. In other words the respondent acted bona fide and without
notice that the applicant was out of the country. Had the respondent been aware, it was open to
them to apply for service outside jurisdiction or to commence proceedings or issue a bankruptcy
notice. The above case is clearly distinguishable because it deals with the substituted service in
cases where the defendant is within jurisdiction. The case does not apply to circumstances where
the defendant is outside the jurisdiction except by analogy.

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Mode of service is provided for under order 5 rule 8 of the Civil Procedure Rules. Rule 8
provides:

“Service of the summons shall be made by delivering or tendering a duplicate of the

summons signed by the judge, or such officer as the judge appoints for this purpose, and
sealed with the seal of the court.”

Where there are several defendants service shall be made on each defendant. (See rule 9 of order
5). Specific provision is made for service on agents under rule 10 of order 5. What is important
to note is that the rule provides that “Wherever it is practicable, service shall be made on the
defendant in person, unless he or she has an agent empowered to accept service, in which case
service on the agent shall be sufficient.” It follows that the Civil Procedure Rules provide for
service on the Defendant in person or on an agent empowered to accept service. The current
application is not related to service on agents at all but is concerned with impractical service on
the defendant by reason that his physical address had not been availed to the bank.

Furthermore it is instructive to read order 5 rule 13 which permits service on the defendant’s
agent or adult member of the family. Rule 13 provides:

“Where in any suit the defendant cannot be found, service may be made on an agent of
the defendant empowered to accept service or on any adult member of the family of the
defendant who is residing with him or her.”

Where the defendant cannot be found service may be made on any adult member of the
defendant’s family. The crux of the matter before me is not failure to find the defendant in his
address of service. This, as was submitted by counsel for the respondent is a case where the
defendant’s address could not be established. In fact this position is borne out by paragraph 6 of
the affidavit in reply by MALIZA KWERA which avers inter alia that “…That the applicant was
properly and effectively served by way of substituted service as efforts to ordinarily effect service
of court process upon him were futile as his physical address could not be traced on his file with
the Respondent;”

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In other words there was no attempt to serve any adult member of the applicant’s family because
the physical address of the defendant or his family for the matter could not be established. I
cannot suggest that substituted service could have been made on an adult member of the family.
This is not tenable because no attempt was made or could have been made to engage rule 13 of
order 5 of the Civil Procedure Rules. Substituted service was then admittedly sought under the
erroneous belief the Applicant was within the jurisdiction of the court. Order 5 rule 18 assumes
that the defendant sought to be served by substituted service is within the jurisdiction of the court
when summons are issued. It provides:

“18. Substituted service.

(1) Where the court is satisfied that for any reason the summons cannot be served in the
ordinary way, the court shall order the summons to be served by affixing a copy of it in
some conspicuous place in the courthouse, and also upon some conspicuous part of the
house, if any, in which the defendant is known to have last resided or carried on business
or personally worked for gain, or in such other manner as the court thinks fit.
(2) Substituted service under an order of the court shall be as effectual as if it had been
made on the defendant personally.”

The intention of the substituted service is to make the defendant aware of the suit in another way
because he or she cannot be served personally. The defendant can only be served personally
when he or she is within the jurisdiction of the court. Specific provision has been made in the
Civil Procedure Rules for service on a defendant who resides outside jurisdiction of the court.
The question of being outside jurisdiction should be examined broadly to include service outside
a magisterial area in case of Magistrates Courts or outside the Country in case of the High Court
of Uganda (See order 5 rule 22).

The requirement for service by a court having jurisdiction is analogous to the provisions of
section 21 of the Civil Procedure Act when dealing with Magistrates Courts.

“21. Service where defendant resides in another district.

(1) Any document which is required to be served in connection with a suit may be sent
for service in another district to a court having jurisdiction in that district.
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 (2) The court to which such document is sent shall, upon receipt of it, proceed as if it had
been issued by that court and shall then return the document to the court of issue together
with the record, if any, of its proceedings with regard to it.”

Magistrates seeking to serve documents in another magisterial district may send the document
for service to a court in that district. Furthermore analogous is the provision of section 15 (a) of
the Civil Procedure Act cap 71 which provides: “subject to limitations in sections 11 to 14, every
suit shall be instituted in a court within the local limits of whose jurisdiction – (a) the defendant
or each of the defendants, where there are more than one, at the time of commencement of the
suit, actually or voluntarily resides, or carries on business, or personally works for gain.” Part
of order 5 rule 18 (1) of the Civil Procedure Rules which deals with substituted service
reproduces the above section of the Civil Procedure Act in so far as it provides for fixture of the
summons in some conspicuous place where: “...in which the defendant is known to have last
resided or carried on business or personally worked for gain, or in such other manner as the
court thinks fit”

In conclusion, where the defendant ordinarily resides outside jurisdiction he or she cannot be
held to be a person ordinarily resident within the local limits of the court’s jurisdiction. The
defendant was in the United Kingdom from 1995 – 2008. By the time the suit was filed in
February 2002 and summons issued, he had been a resident of the United Kingdom for about 7
years. He was therefore ordinarily a resident of the United Kingdom by the time of filing the suit
in 2002 and issuance of summons.

Common law authority is that for substituted service to be valid, the defendant has to be within
jurisdiction of the court when the writ for which order for substituted service is made. In the case
of Myerson v Martin [1979] 3 All ER 667

The plaintiff, who was resident in Jersey, came to England where, on 14 April 1977, he initiated
legal proceedings by writ for service within the jurisdiction against the defendant in respect of
alleged wrongs done to him in Jersey. Although the defendant was resident outside England, he
was director of a company with its head office in England. The defendant visited England often
but the plaintiff failed to serve him. He was not in England on 14 April, when the writ was

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issued, but came to England shortly afterwards for a week. During that period and on subsequent
occasions when the defendant was in England the process server tried unsuccessfully to serve
him personally with the writ. The plaintiff eventually applied for, and obtained, an order under
RSC Ord 65, r 4a, for substituted service of the writ. The defendant received the writ, but having
received it he applied to have the order for substituted service, and the service effected there
under, set aside as being improper. His contention that an order for substituted service could not
be made unless at the time of the issue of the writ the defendant was within the jurisdiction and
personal service could in law have been effected on him on that date. The order for substituted
service was set aside by the High Court. The plaintiff appealed and contended that the rules for
substituted service gave the court wide discretion to order the same whenever it was
impracticable to serve him personally.

Lord Denning delivered the lead judgment of the court.

The relevant order for substituted service provides:

RSC Ord 65, r 4(1):

‘If, in the case of any document which by virtue of any provision of these rules is
required to be served personally on any person, it appears to the Court that it is
impracticable for any reason to serve that document personally on that person, the Court
may make an order for substituted service of that document.’

Though the English rule is not in pari material with order 5 rule 18 (1) both rules deal with
situations where it is impractical to serve the summons on the defendant personally whereupon
the court may make an order for substituted service. Lord Denning’s speech traces the origin of
the common law rule that substituted service can only be made on a defendant when at the time
of issue of summons or writ the person was resident within the local limits of the court’s
jurisdiction. To quote at page 670:

“...That is the question in this case. Is it a case where substituted service was permissible
on Mr Martin?

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 We have been referred to many cases on the subject. It is clear that the courts have to
draw a dividing line between cases which are appropriate for service within the
jurisdiction (which do not require the leave of the court) and those for service out of the
jurisdiction (where the leave of the court is required). On this point for many years the
courts have followed some dicta in Fry v Moore. Mr Moore had previously lived at
Woodbridge in Suffolk, but, before the writ was issued, he had gone to Canada and
remained in Canada thereafter. I put aside the point of waiver on which the case turned. I
will only read the principle as stated by Lindley LJ ((1889) 23 QBD 395 at 397–398; cf
[1886–90] All ER Rep 309 at 310):

‘… there are certain principles which govern the rules, and in Field v. Bennett the
Queen’s Bench Division laid down the principle that, if a writ could not be served
personally at the time when it is issued, there cannot be substituted service. That
is a sound principle.’

Lopes LJ ((1889 23 QBD 395 at 399, [1886–90] All ER Rep 309 at 311) said words to
the same effect. Note the words ‘if a writ could not be served personally at the time when
it is issued’. Those words make the time of issue crucial.

Next there was an authoritative statement in Porter v Freudenberg ([1915] 1 KB 857 at

887, [1914–15] All ER Rep 918 at 933). That was a case about alien enemies. A special
court of seven members of this court was constituted. In a reserved judgment delivered
by Lord Reading CJ the court said:

‘The general rule is that an order for substituted service of writ of summons within the
jurisdiction cannot be made in any case in which, at the time of the issue of the writ, there
could not be at law a good personal service of the writ because the defendant is not
within the jurisdiction.’

Lord Denning notes that these precedents have been followed in the Supreme Court Practice. The
notes besides the rules in RSC Ord 65, r 4b reads:

‘If, at the time of the issue of a writ for service within the jurisdiction, there could
at law have been personal service of it upon the defendant sought to be served, but

15
 circumstances prevented such service being made, then substituted service of such
writ may be allowed … But if at the time of issue personal service of such writ
could not at law have been made, then … substituted service cannot be ordered
[citing Fry v Moore].’

Furthermore Lord Denning held at page 671:

“If the defendant was in fact within the jurisdiction at the time the writ was issued, and
the plaintiff issues a writ for service within the jurisdiction, the plaintiff can get an order
for substituted service on him, even if he has gone overseas since the issue of the writ.

If the defendant was in fact outside the jurisdiction at the time the writ was issued, and
the plaintiff knows it, the plaintiff can take his choice and issue a writ for service within
the jurisdiction, but in that case he has to wait his opportunity and hope that the defendant
will return to England and be served personally. There cannot be substituted service.

Otherwise if the defendant was in fact outside the jurisdiction when the writ was issued,
and is likely to remain outside, the proper course for the plaintiff is to apply for leave to
serve out of the jurisdiction, in which case he can only get it if the case comes within
RSC Ord 11...”

The above authority is very persuasive for the preposition that substituted service can only be
ordered where the defendant was within the jurisdiction of the court. Where the defendant is
outside jurisdiction, service outside jurisdiction has to be effected. The ignorance of the plaintiff
does not save the situation. Where the fact is discovered then the plaintiff can rectify and apply
for service outside jurisdiction. This is the rationale for having substituted service and service
outside jurisdiction as separate and distinct rules. The persuasion of the above case is further
confirmed by Order 7 rule 1 (c) of the Civil Procedure Rules. It requires that the place of
residence of the defendant so far as can be ascertained should be stated. The special endorsed
plaint in High Court Civil Suit No. 61 of 2002 paragraph 2 thereof does not indicate the
residence of the defendant. The plaintiffs Advocates undertook to serve court process on the
Applicant/defendant.

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Substituted service under Order 5 rule 18 (1) of the CPR applies where the defendant
cannot be served in the ordinary way. Ordinary service is personal service or service on
the defendant personally. On the order hand service outside jurisdiction is under order 5
rule 22 which gives instances where the court may make an order for service outside
jurisdiction. This includes sub rule (c) which provides that where the relief is sought
against any person domiciled or ordinarily resident within the jurisdiction. The
applicant qualifies to be called a person domiciled in Uganda at the time of the suit.
Rules 26 – 30 deal with the procedure applicable.

Where the Court allows service to be made outside jurisdiction, the relevant procedures
have to be complied with. These include:

An application to be made to court supported by affidavit evidence under order 5 rule

24; the Court making the order for service outside jurisdiction will indicate the period
within which a defence will be filed depending on the geographical location and
accessibility of the foreign country where the defendant resides. (See order 5 rule 25);
the Court will order the manner of service (see order 5 rule 26) and the procedure for
service in a foreign country is provided for under rule 28.

The objective for service on of summons on the defendant is for the court to hear the parties and
for the defendant to exercise a right to be heard. A party has a right to be heard unless he or she
elects to waive that right. Following the case of Geoffrey Gatete and Angela Maria Nakigonya
versus William Kyobe Supreme Court Civil Appeal No. 7 of 2005, the object of service under
order 36 is to make the defendant aware of the suit. Hence ineffective service would led to a
decree been set aside under rule 11 thereof. The right to a fair hearing under article 28 (1) of the
Constitution, a right from which there can be no derogation under article 44 (c) has to be guarded
jealously. Though the Respondent as creditor needs to set the ball in motion to recover its debt
and expeditiously, the question whether the defendant/applicant is liable should be established
after he has been given the opportunity upon proper service of summons on him. From the little
evidence on record the applicant left the country when he owed the bank over 72 million Uganda

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shillings. This has to be taken seriously. His tentative defence is that the bank recovered its
money. No evidence is available to reach any conclusion on the matter.

It is the judgment of this court that service by way of substituted service on the Applicant in June
2002 was not effective service and is hereby set aside. The decree of the court dated 31 st of July
2002 is set aside. The Registrar, should the Respondent so require, issue a fresh summons for
service on the Applicant now that he is a resident of Uganda. The applicant may apply in the
ordinary way for leave to file a defence upon service of fresh summons on him. The period
between 2002 when the suit was filed and issuance of fresh summons under this order shall not
be reckoned for purposes of service and any application for leave to defend. It should be noted
that the Respondent acted in ignorance of the fact that the applicant was outside jurisdiction of
the High Court of Uganda at the material time when summons were issued and substituted
service ordered in 2002. Fresh summons for service on the applicant shall be deemed to have
been issued when the plaint was filed.

Each party shall bear its/his own costs.

Christopher Madrama,

Judge

Delivered the 26th day of November 2010 in the presence of:

Patricia Akanyo: Court Clerk

Christopher Madrama,

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Judge

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