ISLAMIC UNIVERSITY IN UGANDA
KAMPALA CAMPUS
COURSE: LLB
COURSE UNITY: CIVIL PROCEDURE AND PRACTISE (I)
YEAR: 4(2023-2024)
STREAM: B
LECTURER: COUNSEL ADIAS ASIIMWE
GROUP D COURSE WORK
MEMBERS
NAME REG. NUMBER
WAMALA RONNIE BUUKYA 220-053011-19464
MUGALULA SHAFIK 220-053012-19613
OPEDE JOSEPH OLINGA 220-053011-19888
NANSUBUGA SHARIFAH 220-053011-19620
AMPEREZE NEWTON 220-053011-19515
BATWALA RAHIM TADAGA 220-053011-19474
ANYANGO PRECIOUS 220-053011-19498
MUKYALA HADIA 220-053011-19899
NSEREKO AISHA 220-053011-19431
SSERUNJOJI RATIBU 217-053011-09628
EDYAL ZEBEDAYO 220-053011-19217
TOPIC: ISSING AND SERVICE OF SUMMONS.
Summon means to command a person by service of summons to appear in court 1. Summons is
an official order requires a person to attend court either to answer a claim/charge or to give
evidence2. Under order 5 rule 23, the summons must be accompanied by a copy of the plaint,
summary of evidence, list of witnesses, list of documents and list of authorities. Under order 5
rule 1(5) and order 5 rule 8 4, summons must be signed and also sealed. The seal is by the court
where the matter is filed. The requirements of signing and sealing are mandatory 5. Failure to
comply with them renders the summons a nullity. Although, the summons which bore a seal of
a Magistrate court instead of the high court was found to be defective but the court noted that
this was an irregularity capable of being waived and did not render the service a nullity 6. The
entire scheme of that Order aims at only one thing: to obtain the presence of the defendant to
a claim and to provide full information about the nature of the claim against him or her
expeditiously without undue delay. This is consistent with the requirement of Articic 28 (1) 7
that is to the effect that in the determination of civil rights and obligations, a person shall be
entitled to a fair, speedy and public hearing. This is achieved by effecting personal service
failure of which substituted service may be allowed in such situations as the rules permit.
TIME FOR SERVICE.
Service of summons and court process must comply with the time and day of service 8. service
on a Sunday is void as no service of pleadings, notices, summonses, other than summonses to
file a defence can be effected on Sunday9.The same applied to such prohibited days like public
holidays10.
1
Black’s Law Dictionary 8th 2004, page 4504
2
O.5 r 1 (1 a-b) Civil Procedure rules SI_71-1 Civil procedure and practice in Uganda 1st edition, page 129 by M.
Ssekaana
3
Civil Procedure rules SI_71-1
4
Ibid
5
Kaur vs. City Auto Mart [1967] EA 108, Kanyabwera v. Tumwchaze [2005] 2 EA 86 al. 93
6
Nanjibhai Prabhudas vs Standard Bank [1968] EA 670
7
The Constitution of the Republic of Uganda, 1995 as Amended
8
Civil procedure and practice in Uganda 1st edition, page 129 by M. Ssekaana
9
O.51 r 9 Civil Procedure rules SI_71-1
10
O.51 r 2, ibid.
SERVICE OF PLEADINGS BETWEEN PARTIES AND SERVICE ON GOVERNMENT.
Service on the defendant in person.
It is provided that service is to be on defendant in person or his or her agent 11. Where 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. In Jessy
technical services ltd and another verses Ajay industrial corporation ltd and another 12 court
held that there was no personal service on the second applicant as prescribed by order 5 rule
10 of the rules. That the rule provides that service shall be effected personally on the defendant
or on an agent duly empowered to accept service.
In Re. Pritchard13 it was noted that the function of summons is to fix the day for appearance
and must be served on the defendant in person. Proper effort must be made to effect personal
service. In Katukulu v. Transocean14 it was held that service of a plaint and summons to enter
appearance should be effected on the defendant personally and where it is not possible or
practicable, the plaintiff should always proceed by way of substituted service in accordance
with the CPRs. The fact that the defendant was never served personally with court process was
sufficient to show that they had never served the summons.
The law is that where defendant denies having been served, the onus is on him/her to prove to
the satisfaction of court that the service was ineffective 15. The law also recognises the role of
the local authorities to help in having the defendant understand the contents of the
summons.16
Service on several defendants.
Order 5 rule 917 provides that where there are more defendants than one, service if the
summons shall be made on each defendant. In EAGEN VS Ntende18 It was held that since the
plaintiff had decided to join all the six defendants, the plaintiff brought upon himself the duty to
effect service on each of them and failure to serve all of them was a good cause to set aside the
decree.
Service on agents other than the defendant.
11
O.5 r 10, ibid.
12
Misc. Application No.0617 of 2012 and Misc. Application No. 616 of 2012
13
[1963]ALLER 873
14
[1974]276 (CA-U)
15
Busingye & Ors v. William Kakungulu (2001-2005) HCB 108
16
Magela v. Kakungulu (1976) HCB 289
17
Civil Procedure rules SI_71-1
18
[1979] HCB 227
Order 5 rule 1119 provides that service must be effected on the person upon whom the
summons are directed unless he has an authorized agent. Service on agents is effectual. In
Erukana Kavuma vs Metha20 the process server for the plaintiff stated that he did not find the
defendant at his shop and served the summons on the defendant's wife and obtained an
exparte judgement which was challenged, it was held that order 5 rule 9 and order 5 rule 11
was not complied with because the duplicate copy of the summons was tendered or delivered
to the defendant’s wife, service was therefore bad. The process server did not inquire as to the
address of the defendant in India and for how long he will stay there.
Service on the government (attorney General)
Article 250(2)21 provides that civil proceedings by or against the government shall be instituted
by or against the attorney general; and all documents required to be served on the government
for the purposes of or in connection with those proceedings shall be served on the Attorney
general. Section 1122 provides that all documents required to be served on the government for
the purposes of or in connection with any civil proceedings by or against the government shall
be served on the attorney general.
Rule 523 provides for service of documents. Service of a document on the attorney general for
the purposes of or in connection with civil proceedings by or against the government shall be
effected by delivering or sending the documents to be served and a duplicate or copy of the
document to the office of the Attorney general and shall be deemed not be complete until the
attorney general or another officer of the government entitled to practice as an advocate in
connection with the duties of his or her office has endorsed an acknowledgement of service on
the document to be served. In this rule, “document” includes a notice, pleading, order,
summons, warrant and any written proceeding or communication.
Service on Partners in a partnership.
Order 30 rule 324 provides for service of partners. Where persons are sued as partners in the
name of their firm, the summons shall be served (a) upon any one or more of the partners (b)
at the principal place at which the partnership business is carried on within Uganda upon any
person having, at the time of service, the control or management of the partnership business
there or (c) as the court may direct. The service shall be deemed good service upon the firm so
sued, whether all or any of the partners are within or without Uganda; except that in the case
of a partnership which had been dissolved to the knowledge of the plaintiff before the
institution of the suit, the summon shall be served upon every person in Uganda whom it is
19
Civil Procedure rules SI_71-1
20
[1960] 1 EA 305
21
The Constitution of the Republic of Uganda, 1995 as Amended
22
Government Proceedings Act Cap 77
23
Government proceedings (Civil procedure) rules
24
Civil Procedure rules SI_71-1
sought to make liable. Order 30 rule 6 25 provides for appearance by partners where persons are
sued as partners in the name of their firm, they shall appear individually in their own names,
but all subsequent proceedings shall nevertheless continue in the name of the firm.
Order 3 rule 726 provides that where a summon is served in the manner provided by rule 3 of
the order upon a person having the control or management of the partnership business, no
appearance by him or her shall be necessary unless he or she is a partner of the firm sued. In
the case of Geoffrey Gatete and. Angela Maria Nakigonya v. William Kyobe 27 court held that
rule 3, 6 and 7 of order 30 relate to service of and appearance to summons.
Service on a company or corporation.
Section 27428 provides for the service of documents. A document may be served on a company
by personally serving it on an officer of the company, by sending it by registered post to the
registered postal address od the company in Uganda or by sending an email to the known
electronic address or by leaving it at the registered office of the company.
Order 29 rule 229 provides for service on corporation. That subject to any statutory provision
regulating service of process, where the suit is against a corporation, the summons may be
served (a) on the secretary, or on director or other principal officer of the corporation or (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 J.F Ijjala V.
corporation Energo project30 it was provides for the principal that if summons are left at the
principal place of business or head office of the defendant, that is effective service.
In Kisubi High school v. NSSF31 the affidavit of service read that the deputy. Head teacher had
been served with the summons. The narrow issue was whether service on the deputy head
teacher of the applicant school amounted to leaving the document at the registered office of
the company. Alternatively whether the school is the place where the corporation carries
business. Madrama J held that there is no difference in quality between handing over summons
to the head teacher and also leaving it at the principal place of business or registered office of
corporation. Further held that, service on the deputy headmaster was as good as leaving the
documents at the registered office of the company.
Service on corporations, its however noted that rule 14,16 and 17 32 don’t apply to the
corporations and service on corporations cannot be effected in accordance with those rules as
per Nzioki son of Mutumenta verses Akamba Handcraft industries LTD.
25
Ibid
26
Ibid
27
Supreme court civil appeal No.7 pf 2005
28
Companies Act 2012
29
Civil Procedure rules SI_71-1
30
[1988-90]HCB 157
31
HCMA No.505/2012
32
O.29, Civil Procedure rules SI_71-1
Order 29 rule 233 where service on corporation is made upon the secretary, directors, principal
officer of the company (like the general manager) on whom summons may be left or sent by
post to the corporation's registered office. If no registered office, then to their premises.
Substituted service within jurisdiction.
The general rule is that where the court is satisfied for any reason the summons cannot be served in the
ordinary way court shall order substituted service in such other manner as it thinks fit. 34 Such service can
take the form of advertisement in a newspaper or affixing a copy in some conspicuous place in court or
part of house35. “It cannot be served in ordinary way” 36 includes the case where the defendant, having
knowledge of the existence of summons evades service. Substituted service applies not only to
summons but to any documents that require service37.
Where the government is requested to effect of foreign legal process in Uganda, it may make all such
orders for substituted service as may be necessary to give effect to O.5 r 3038.
The application for Substituted service is normally made by summons in Chambers ex parte 39. The
applicant must have exercised all due and reasonable diligence. The application should also specify the
mode in which service is now sought to be effected. After the order is made and complied with, service
is deemed to be effective as if it were done personally on the defendant40.
The affidavit will state; - the date when the summons was issued, the occasions on which personal
service of the summons/court process was attempted, and the facts upon which such inference of
evasion of service were based, the believed address of the defendant, the substituted service is the best
method by which the summons will come within the defendants’ knowledge 41.
Service on persons who can’t be reached.
Where the defendant is confined in a prison the summons shall be delivered or sent by post or
otherwise to the officer in charge of the prison for service on the defendant 42. Also where the defendant
is a public officer or soldier, service may be sent for service to the head office in which is employed or in
33
Ibid.
34
O.5 r 18 Civil Procedure rules SI_71-1, Civil procedure and practice in Uganda 1st edition, page 131 by M.
Ssekaana
35
Ibid, Erukana Omuchilo vs Ayub Machiwa [1960] EA 229
36
Proline Soccer Academy Ltd v. Lawrence Mulindwa & 5 Ors HCCS No. 459 of 2009; court stated that matters of
procedure are not normally of a fundament nature and rules as to service of summons are matters of procedure
that cannot just be waived.
37
Civil procedure and practice in Uganda 1st edition, page 131 by M. Ssekaan
38
O.5 r 31 Civil Procedure rules SI_71-1, Civil procedure and practice in Uganda 1st edition, page 131 by M. Ssekaan
39
O.5 r 32 Civil Procedure rules SI_71-1
40
Order 5 rule 18(2) Civil Procedure rules SI_71-1, Franco Mugumya v. Total (U) Ltd Misc. application No.28/2013
(unreported)
41
Civil procedure and practice in Uganda 1st edition, page 131 by M. Ssekaan
42
O.5 r 19 Civil Procedure rules SI_71-1
respect of soldiers to his commanding officer 43. Any person who is responsible to receive and effect such
service shall be bound to serve it and return the duplicate under his signature with a written
acknowledgement of defendant44. In Wadamba v. Mutasa & 2 Ors45 Court was of the view that where it
is not possible to serve the defendant service can be done on his agent or adult member of his family 46.
In Erukana Kavumu v. Metha47, where service was effected on an adult member of the family when
defendant was reportedly in India. Court ruled that an inquiry was necessary regarding defendant’s
address before it’s concluded that he can’t be found.
SERVICE OUT OF JURISDICTION.
Service out of jurisdiction of summons may be allowed by the court whenever a subject matter is for
immovable property, any act, deed, will, contract obligation or liability affecting immovable property
relief sought against any person ordinary resident or domiciled in Uganda, the suit for administration of
an estate of a person who was resident or domiciled in Uganda, suit for breach of contract, any
injunction sought to be done within the jurisdiction, tort48.
Disputes as to jurisdiction of the court the defendant must give notice of intention to defend the
proceedings and shall apply to court within the limited for service of defence to order; setting aside the
summons or service of the summons on him or her, the protection or release of any property, or order
relief/remedy sought in the action. 49 Matters beyond the boundaries of Uganda are entertained by the
High Court of Uganda by virtual of its inherent unlimited original jurisdiction in all matters 50. However
section(s) 14 and 1551 give clearance on jurisdiction of high court on matters out of Uganda where the
cause of action arose and place of residence of the defendant 52. In Ssekatawa international case53
where court held that Uganda had jurisdiction by virtue of the fact that the contract was to be
performed in Uganda.
Then if all is considered to be right then service of summons can be effected because high court of
Uganda will have jurisdiction to determine the matter. The plaint must state the facts on which court is
asked to assume jurisdiction54. The jurisdiction of the court is limited by the definition of the
circumstances in service outside jurisdiction may be allowed 55. Any failure to make full and fair
disclosure may justify discharging an order for service out of jurisdiction 56. A probable cause of action
must be shown for court to have a basis of granting such orders57.
43
O.5 r 20 ibid
44
O.5 r 21 ibid
45
[2017] UGHCLD 13
46
O.5 r 13 ibid
47
(1960) EA 305
48
O.5 r 22 Civil Procedure rules SI_71-1
49
O.9 r 3 (1 a-h) ibid
50
Article 139, Jurisdiction of the High Court. In the 1995 Constitution of the Republic of Uganda as Amended.
51
Civil Procedure Act Cap 71
52
The Uganda Justice bench book, page 6
53
CMA CGM Uganda ltd v. M/S H. Ssekatawa International ltd HCCS No.27 of 2013
54
Assanand & Sons (Uganda) Ltd. vs. East African Records Ltd. [1959] EA 360
55
Karachi Gas Co. Ltd. vs. Isaaq [1965] EA 42
56
Civil procedure and practice in Uganda 1st edition, page 131 by M. Ssekaan
57
Donnebaum vs. Mikolashek [1966] EA 25
Every application for service out of jurisdiction shall be supported by an affidavit or such other evidence
stating that the deponent has a good cause of action stating in what country and place such defendant
may probably be found and whether such defendant is a commonwealth citizen or British protected
person or not58. Where the defendant is neither a commonwealth citizen nor a British protected person
and is not in a commonwealth country, notice of the summons and not the summons itself is to be
served upon him59.
RENEWAL OF SUMMONS.
After a summons has been issued by a court, it lasts for 21 days from the date of its issuing 60. When the
person who is supposed to serve fails to serve them on the specified date thereof, such summons have
expired. They must be returned to the court for renewal 61. However a party may apply for the extension
of time within 15 days from the date of its expiration 62. Good reason for the failure to serve must be
given to court to put it into consideration 63. Where a statutory limitation period has expired between
the issue of summons and the application for renewal, so that the granting of an extension would
deprive the defendant of the benefit of the Limitation Act, the summons will be renewed only in
exceptional circumstances64. The court will issue fresh summons or renew the summons issued earlier
on such condition as court may deem fit.
Where, after a summons has been issued to the defendant, or to one of several defendants, returned
unserved, the plaintiff fails, for a period of one year from the date of the return made to the court by
the serving officer, apply for the issue of fresh summons, and to satisfy the court that his/her best
endeavours to discover the residence of the defendant who has not been served, or that the defendant
is avoiding service of process, the court may make an order that the suit be dismissed as against the
defendant65.
SERVICE OF COURT PROCESS ON FOREIGN STATE/BODY
When a proceeding is commenced against a foreign state, the forum state is not prohibited under
International Law from serving any writ, complaint, summons, or other document required to be served
for the instituting the proceedings, to appoint the date of entering an appearance, or filing a defence or
a plea, whether or not there exists any doubt with respect to the immunity or non-immunity of the
foreign state. The courts of the forum have jurisdiction to establish whether they may exercise
jurisdiction or not66.
Service of process must be effected on the competent organ of the foreign state and in forms
permissible under International law. It appears appropriate under international law, to effect service on
the Foreign Minister of the Central Government of the foreign state 67. However, still service can also still
58
O.5 r 24 Civil Procedure rules SI_71-1
59
O.5 r 27 ibid
60
O.5 r 2 Civil Procedure Rules SI_71-1
61
Civil procedure and practice in Uganda 1st edition, page 132 by M. Ssekaan
62
Ibid
63
Civil procedure and practice in Uganda 1st edition, page 133 by M. Ssekaan
64
O.9 r 19 ibid
65
Civil procedure and practice in Uganda 1st edition, page 133 by M. Ssekaan
66
Ibid
be done in accordance of agreements between countries or treaties that where signed and rectified and
binding on them.
67
Kuwait Airways Corporation vs Iraqi Airways Co. & Others [1995] 3 ALL.ER 694. Furthermore, In case of state
owned or state controlled entities, which are legally distinct from the foreign state, service, must be effected on
the organ authorised to represent the entity for such service.
