Alemayehu v Bowerman (Civil Suit 484 of 1993) [1993] UGHC 57 (23 November 1993)

THE HIGH COURT OF UGANDA AT KAMPALA PLAINTIFF V E R S U S CIVIL SUIT NO, £8^ OF 1993 ALEMAYEHU DEGEFA THE REPUBLIC OF UGGNDA

KIM BOWERMAN DEFENDANT BEFORE: . THE, HONOURABLE LADY JUSTICE M. KIREJU

R -U L I N G

This is an application brought by way of Chamber Summons (exparte) under Order 5 rules 23(c), 25 and 33 of Civil Procedure Rules, seeking orders of this court that leave be granted for service of summons to the defendant/respondent outside the jurisdiction *-of* this court to wit the United Kingdom, Thp application was presented by learned counsel Mr, Mutawe

of M/S Katende and Ssempebwa and Comapny Advocates,

The brief background to the application is that the applicant/ plaintiff filed an action against the defendant one Kim Bowerman under Summary Procedure, Or 33 rule 2 of Civil Procedure Rules, The plaintiff claims that the defendant carries on business both in Uganda and in the United Kingdom, sometime in 1992 the plaintiff contracted with the defendant whereby the defendant undertook tP »u>ply the plaintiff with shoes worth US \$ 6981,63 ⁱ On the ix«tr.uetions of the defendant the plaintiff paid the purchase p\$lee to the defendant's agent one Mr, Martin Sharman and the same wa» acknowledged. The defendant promised to ship the goods after payment but he never did despite numerous demands hence the suit to jOMer the contract price.

The main ground of this application is that the defendant/ respondent- is ordinarily resident in the United Kingdom^ The supporting affidavit also stated that the defendant/respondent is .grdinayily resident in the United Kingdom and maintains an of\$i\*e at Kennington High Street, Kensington London W8 United Kingdom where he could be served.

• • •a/2'i \*

The rule under which this application is made ; is as follows Or. 5 r 23 (c)

••Service out of the jurisdiction of a summons or notice of summons may be all -wed by ue court whenever--- (a) (b) (s) an; relief is sought against any person domiciled or ordinarily resi dent w1^t bin ' the\* ^jurifidl'rtion» "

My understanding of the above rule is that the court may allow Service out of its jurisdiction if the defendant is domiciled of ordinarily resident within the court's jurisdiction, but at the are time of the summons being served the defendant happens to be out of the jurisdiction^B The jurisdiction being referred to in the subrule is the court to which the application is made. However, in the instant application he deponed in paragraph 3 of the supporting affidavit that the defendant is ordinarily resident in the United Kingdom which puts him outside the ambit of this rule. This application does not satisfy the requirements of the rule.

The plaintiff is also required under Or 5 r 25 to show that he has a good cause of action and whether such defendant is a Commonwealth citizen or British protected person or not^f As this is an exp^rte application the plaintiff/applicant is unct'^y court . \*\*\* duty to show/that he has a good cause of action, he should 'disclose to court full particulars on which the claims is based, especially in case as the one under consideration where action is brought under Summary procedure.. Looking at the affidavit in support of the plaint I am not- satisfied that what is disclosed there is enough , for the court to decide whether the plaintiff has a good c&ise acknowledging of action. The fax / receipt of the contract price By the defendant was not attached to the plaint. A copy of- a letter acknowledging payment was attached to the plaint as Annexfeure 'A^f but it hasvno address and the author is Martin Sharman not the defendant\* The plaintiff claims that the defendant directed that the money be paid to Martin Sharman but there is no document

....

to show that there '"as such a directive#

For the reasons given above I am unable to grant the application as it does not satisfy the conditions for grant of leave to serve summons outside the jurisdiction, it is accordingly dismissed.

c> V-'x •'"CJ/y' M. Kireju

J u d g e 25/11/93

Mr, Francis Buwule holding brief for Mr. Mutawe. Mr, Oburu Court Clerk.

Ruling delivered before the above,

C/ViA.' M. Kireju ^r

Judge 25/11/93