When a suit is instituted, the process of getting the either party aware about this suit is the objective of a summons and this summons-to-file a defense must be served to that party or parties.
As required under Section 20 of the Civil Procedure Act, when a suit has been instituted then service has to be made upon the defendant or defendants to enter appearance and answer the claim. Same with Order 5 rule 1(1) of the Civil Procedure Rules, when a suit is instituted or has been instituted then summons may be issued to the defendant ordering him to file a defense or ordering him to answer the claim on the day specified therein.
In practice, it’s always the duty of the plaintiff or the applicant to serve the defendant with the summons.
Where a judgment was entered against the defendant without the defendant answering to the claim, its defense enough that summons were not served for court to set aside the judgment. In Busingye & Ors v. Williams Katotsire (2001-2005) HCB 108 it was held that, “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.”
Other than mere service, service itself has to be effective. It’s actually supposed to be personal as was put out in Betty Owaraga v. G.W. Owaraga HCCA No. 60 of 1992 but where it is not possible to serve the defendant service can be done on his agent or adult member of his family.
The aspect of effective service was well explained in Gatete v Kyobe & Another Civil Suit NO. 7 of 2005 that service may be good but not effective. With effective basically the person who is served [defendant] should know that there is a suit against him/her so that they file a reply. Therefore where any service is made and the defendant notices of such service then that is effective service. But mere service of summons to the agent, family member, substituted service all fall under good service in that they may not be that good.
About substituted service, it only applies where personal service fails and can only be made after an application to court to have the defendant served by way of substituted service. In Sulaiman Kidandala v Muhammed Ssegirinya and The Electoral Commission High Court Parliamentary Election Petition of 2021, court looked into substituted service and that the party instituting a suit cannot just opt for substituted service before taking the reasonable efforts to serve the defendant personally.
In the same case, the first respondent was in prison and the petitioners claimed that he had refused to receive the summons. However, Order 5 rule 19 of the Civil Procedure Rules provides for service of defendants in prison. That the summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant. So there are rare circumstances where such service could be evaded by the responded, and well it would be good service.
DEVELOPMENT
Evading service is one way parties use to delay suits from proceeding and courts have also been on the look to ensure there’s a way to go past this of course with the developments that have come with technology.
Since suits can be instituted or filed online with the ECCMIS (Electronic Case Management Information System), same with service of summons. Service of summons can now be effected online through the use of social technology.
This development came with the decision in Male Mabirizi v Attorney General Miscellaneous Application No. 918 of 2021 where Justice Musa Ssekaana had this to say, “Like any other modes of service, service by email or Facebook or WhatsApp or any other technologically advanced means are calculated at providing parties with notice of existence of a suit or hearing date for their response or attendance. Service of court process electronically has come to be recognized in Uganda as one of the acceptable means of service through the Companies Act-Section 274 and also recently rules passed by the Rules Committee – The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature)(Practice)Directions, 2019.”
With reference to that, Justice Musa Ssekaana found that the court had acted within its powers when it ordered service on the respondent to be effected by email since the respondent was trying to avoid service of court process in order to delay the trial of an application for contempt.
” Service by email or Facebook or WhatsApp or any other technologically advanced means are calculated at providing parties with notice of existence of a suit”
JUSTICE MUSA SSEKAANA
With this development, service made by WhatsApp may be deemed good service as if it were made in person. The question would now be how effective would it be and what does the plaintiff or applicant have to prove before court as evidence of service?
Disclaimer
No information contained in this writing or article should be construed as legal advice from Legal Notch Uganda or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.
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Joel Peter Namugera
THE LEGAL NOTCH 
It’s been nice and insightful reading this article from a promising figure Joel Peter Namugera. Thank you. Keep educating us.
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