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The court considered an application by Uganda Registration Services Bureau seeking unconditional leave to appear and defend a civil suit brought by Stellar Properties Limited. The Bureau argued that the suit was barred because Stellar did not provide the mandatory statutory notice required to sue the Bureau, as a statutory corporation. However, the court found that while the notices Stellar sent did not use the exact prescribed form, they met the material requirements of identifying the claimant, facts, and value of claim. The court thus dismissed the Bureau's application, finding that the notice requirements were directory rather than mandatory, and the Bureau was not prejudiced.
![At the hearing of the application Godfrey Madete State Attorney and Sandra Madete State Attorney appear for the
applicant while Counsel Masembe Kanyerezi appeared for the respondent. Counsels agreed to address the court in
written submissions.
The applicant’s case is that it has raised several triable issues in the affidavits in support of the application to which
the court should address itself and therefore leave to appear and defend the suit should be granted. The triable issues
are supported by the case of Abu Bakr Kato Kasule vs. Thomson Muhwezi (1992 – 3) HCB 212. The issues are that the
applicant is a statutory Corporation and should apply against it without statutory notice. Secondly the respondent has
no locus to institute a suit for penal taxes. Thirdly interest is that the exorbitant rate and inappropriate for trial under
order 36 of the Civil Procedure Rules. Counsel contended that the suit is incompetent for want of statutory notice
under the provisions of section 2 (1) (c) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act. Failure
to comply with the requirement to serve a statutory notice renders a suit a nullity as against the applicant.
As far as the contention of the respondent that the third notices were served on the applicant three times namely on
31 July 2012, on 1 October 2012 and on 12 November 2012, the documents referred to do not amount to statutory
notices but are demand notices. A statutory notice is supposed to be in the prescribed form under section 2 of the Act.
The requirement for serving statutory notice as required or prescribed is mandatory according to the case of Fancy
Stores Ltd and Another versus UCB [1994] HCCS number 9 of 1992 cited in volume 4 KALR page 18. The only
exception to the requirement to serve a statutory notice is found under article 50 of the Constitution of the Republic
of Uganda for the enforcement of fundamental rights and freedoms. Any proceeding found on the case that is a nullity
is barred according to the case of Chesomi vs. Silverstein 2006 Vol 2 EA 39 at page 43. Finally counsels submitted
that the rules of procedure are not mere technicalities but handmaidens of justice and the respondent should not be
encouraged to flout the clear provisions of the law.
In reply the respondent’s counsels submitted on the grounds for granting an application for leave to appear and
defend the suit, which principles are not in dispute. Generally they are that the applicant must demonstrate to court
that there are bona fides issues for trial of questions of law or fact (see Maluku Interglobal Agency Ltd Versus Bank of
Uganda [1985] HCB at page 65.
In the applicants application, only ground one is argued and the respondents counsel is contained that grounds two
and three must be taken to have been abandoned. As far as ground one as to whether there was statutory notice is
concerned, the respondents position is that the applicant was indeed sound with that the notice of intention to sue
which notice met the requirements of section 2 (1) of the Act. The essential ingredients of a statutory notice which are
prescribed are that the notice must be in writing and must be delivered 45 days prior to the institution of the suit.
Secondly it should identify the intending plaintiff. Thirdly it should have the facts constituting the cause of action.
Lastly it should indicate the value of the claim. Under section 2 (2) of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act Cap 72, the question is whether failure to comply with the statutory form renders the
notice invalid. The respondents counsel further submitted that it is essentially involves a consideration of whether the
requirement of form set out in section 2 (2) of the Act is mandatory or directory. If it is directory, then the alleged
want of form cannot invalidate the notice as the applicant would have been notified of the claim as required by the
statute. The requisite notice issued by respondent comprises its lawyers letter dated 12th of November 2012 annexure
"A" which letter incorporates by reference in its opening paragraph the letters of 31st of July 1 October 2012 also
annexed to the affidavit. All the three letters were stamped as duly received by the applicant and are not denied. The
letter of 12th of November 2012 read together with the two earlier letters incorporated by reference in name of the
claimant, the basis of the claim being the tenancy agreement dated 29th of February 2012, the agreed the rentals for
the two year period 1 September 2011 to 31st of August 2013 as outstanding and the value of the claim being 911,808
US dollars. It further indicates in the notice that if rent arrears are not paid by 16 November 2012, recovered
proceedings would be instituted. Consequently the contents of the letters meet the requirements of the Act. Counsel](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)
