IN THE COURT OF APPEAL FOR EAST AFRICA
CIVIL APPEAL NO. 13 OF 1968
NANJIBHAI PRABHUDAS & CO. LIMITED………………………….APPELLANTS
THE STANDARD BANK LIMITED…………………………………….RESPONDENTS
(Appeal from a judgment and order of the High Court of Kenya at Mombasa (Harris, J.) dated 2nd December, 1967, in Civil Case No. 245 of 1965)
10th July, 1968.
The following Judgments were read:-
This is an appeal against a decision of the High Court (Harris, J.) given on a motion by a defendant seeking an order that service upon it of a summons be set aside. The High Court dismissed the application and from that decision the applicant, who was the defendant in the suit which gave rise to the application, has appealed to this Court. The relevant facts may be shortly stated as follows.
On the 11th August, 1965, the plaintiff filed a plaint against the defendant claiming an amount of £50,000 plus interest due under a guarantee. The defendant was described in the plaint as "a limited liability company incorporated in Uganda and whose address is 25, Main Street, P.O. Box 196, Jinja". On the 15th March, 1966, a chamber summons was taken out by the plaintiff under Order V, rule 21, asking for an order that leave be granted to serve the summons in the suit outside the jurisdiction. On the 21st March, 1966, such leave was granted ex parte and the formal order stated that leave was granted for the service of the summons outside the jurisdiction upon the defendant "at 25, Main Street, P.O. Box 196, Jinja Uganda, through the District Court at Jinja, Uganda.” The summons to the defendant was headed "In the High Court of Kenya" and was signed by the Deputy Registrar of the High Court of Kenya at Mombasa, but it was sealed with the seal of a subordinate court, that is, the resident magistrate's court at Mombasa. This summons was, according to an affidavit of a process server of the district court of Busoga at Jinja, served on the defendant on the 9th June, 1966, and service was accepted. On the 30th June, 1966, Mr. Gor, a Kenya advocate, entered an unconditional appearance in the suit in the High Court.
On the 13th July, 1966, the plaintiff filed a notice of motion under Order XXXV, rule 2, asking for summary judgment to be entered in its favor. This notice of motion was served on and accepted by the defendant's advocate on the 16th July. On the 14th July the defendant filed a notice of motion for an order "that the service of the summons to appear on the defendant herein be set aside on the ground that the court has no jurisdiction to order service of the summons in Uganda inasmuch as the defendant is a company incorporated and carrying on business in Uganda and not in Kenya", and seeking in the alternative an extension of 30 days from the date of the decision on the motion in which to file a defence. The date for the hearing shown in this notice of motion was the 24th October, 1966, and a note on the court file stated that this date was the choice of Mr. Gor, the defendant's advocate. On the 31st August, 1966, the plaintiff's motion asking for summary judgment came on for hearing in the High Court in the absence of the defendant or any advocate representing it.
The judge reserved his decision for two weeks in order, as he stated, to enable the defendant to apply to be heard; but as no application to that effect was made, on the 16th September, 1966, the judge gave judgment for the plaintiff in terms of its notice of motion. Subsequently, the costs of the suit were taxed and the decree consequent upon the judgment was sent for execution to the High Court of Uganda. We were informed by Mr. Wilkinson, who appeared on behalf of the defendant, that there is an order of the High Court of Uganda staying execution of that decree until the decision of this Court on this appeal. The notice of motion of the defendant seeking an order setting aside the service of the summons came on for hearing before Harris, J. and the application was dismissed with costs on the 2nd December, 1967. From that decision the defendant has appealed to this Court. The decision of the High Court was challenged on two main grounds. The first ground was that the service of the summons on the defendant was a nullity for two reasons. First, that the summons had been sealed with the wrong seal and, secondly, that it was a summons and not a notice of summons which had been served on the defendant. The argument then continued that if the service was a nullity therefore everything founded upon it, such as the judgment, became equally a nullity, even though the judgment itself was not directly challenged in these proceedings.
The second ground was that even if the service of the summons was not a nullity, the irregularities connected with it had not been waived by the defendant and were of such a grave nature that the defendant was entitled to have the service of the summons set aside, with the result that the judgment based upon the service of the summons would cease to have effect, even though the judgment itself was not directly challenged in these proceedings. Dealing with the first ground, there was considerable uncertainty, both in the argument before us and, I think, before the High Court, as to whether what was sought to be set aside was the order for service of the summons outside Kenya or the service of the summons itself. Harris, J. held that the court had no power to set aside the service of the summons as that had been effected by the courts in Uganda and a Kenya court had no power to challenge the validity of the service. I do not accept this.
It is open to a Kenya court to set aside the service of its own process, no matter who effected the service. In my view, however, it does not matter very much whether what is set aside is the order of the court for service of the summons or the service of the summons. As the affixing of th0 incorrect seal was done subsequent to the order for service and thus cannot be a ground for setting aside the order, I shall deal with the matter on the basis that what is sought to set aside is the service of the summons. The consideration of the position on such a basis accords with the terms of the notice of motion. It is urged that the service was a nullity because the summons had the seal of the resident magistrate's court on it and not, as it should have had, under Order V, rule 1(3) and rule 7, the seal of the High Court. It was undoubtedly incorrect to put on the summons the seal of the resident magistrate's court. The summons itself, however, purports to issue from the High Court and is signed by the deputy registrar of the High Court. The defendant entered an appearance in the High Court and took out the motion which is the subject of this appeal in the High Court; and it was not until a very late stage that it was noticed that the seal was an incorrect seal. This shows how technical is the objection and it also shows that this incorrect act in no way prejudiced the defendant. The concept of a seal as a means of authenticating a document dates back into antiquity. In England until the 18th century relatively few people were literate. Almost every individual of any position had a seal with a distinctive design, and it was this seal which was affixed to a document so as to declare that he had executed it. This historical means of authenticating a document continued in England long after the basic reason for its existence had ceased and long after individuals had ceased to have and use their own seals.
The concept of a means of authentication has been applied in Kenya in wholly different conditions from those which gave rise to the necessity for the concept and, indeed, it is doubtful whether to-day there exists a single individual with his own seal containing a device which he affixes to documents to authenticate the documents as his act. Indeed, the position has become so unreal that what is in frequent use as a seal is nothing other than a stamp containing words which, of course can only be understood if the person is literate. In these circumstances I cannot regard the incorrect placing of the seal of one court on a document, instead of the seal of another court, as an act so fundamental that it transforms what would other wise be an effective document into a complete nullity. It is also urged that the service of the summons is a nullity because the summons itself, and not the notice of the summons, was served. Order V, rules 25 and 26 are as follows:
25. “ Where leave to serve a summons out of the Colony has been granted under rule 21 and the defendant is a British subject or British protected person or resides in the United Kingdom or in any British Dominion, Colony, Dependency or Protectorate or mandated territory out of the Colony, the summons shall be served in such manner as the Court may order.
26. Where the defendant is neither a British subject nor British protected person and is not in British dominions or in any British Protectorate or mandated territory, notice of the summons and not the summons itself is to be served upon him. "As the defendant is neither a British subject nor a British protected person and as it does not reside in the British dominions or in any British Protectorate or mandated territory, under rule 26 notice of the summons and not the summons itself should have been served on him.”
Mr. Mackie-Robertson for the plaintiff submits that under the provisions of the Kenya Independence Order-in-Council, 1963, section 4(1) and the successive similar provisions in the constitutional amendments made subsequent to 1963, the legislation of Kenya, which would include these rules, should be "construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution". I accept that such is the position, but that leaves still for decision what modifications are necessary. It is urged that in accordance with the decision in Leslie and Anderson (Coffee) Ltd., v. Hoima Ginners Ltd.  E.A. 44, the necessary modifications which are to be read into rules 25 and 26 are the words "or a Commonwealth citizen" and "or a Commonwealth country", respectively, after the references to the persons and the places in these rules. If this were done then the service of a summons instead of notice of a summons would be the correct procedure as the defendant was a Uganda company and Uganda is a member country of the Commonwealth. I do not accept this submission. These rules related to the period when Kenya was a British Colony and Protector or British protected persons. The concept, therefore, in these rules was a concept or citizens of Britain and of the dominions of Britain. It is obvious that these rules are inappropriate to the position of an independent Kenya. As many similar provisions exist in other rules I trust that early action will be taken to remedy the position. It is obvious, however, that until that action is taken, the courts, in accordance with the provisions of the Constitution, will have to modify these provisions. It seems to me that the only proper modification is to replace the old concept by the appropriate new concept and to adapt the wording accordingly. The old concept of British subject should obviously be replaced by a concept of Kenya citizen and the old concept of the British Empire should obviously be replaced by a concept of countries over which Kenya exercises sovereign power, if there were any such countries. Doing this, rules 25 and 26 would read:
"25. Where leave to serve a summons out of Kenya has been granted under rule 21 and the defendant is a Kenya citizen, the summons shall be served in such manner as a court may order.
26. Where the defendant is not a Kenya citizen and is not in Kenya notice of the summons and not the summons itself is to be served on him.”
If these modifications are made then it is clear that the service of the summons on the defendant instead of a notice was incorrect. I consider that anything to the contrary in the Leslie and Anderson case (supra) is an incorrect statement of the law. The question then is; did that incorrect action result in the service being a nullity? The courts should not treat any incorrect act as a nullity, with the consequence that everything founded thereon is itself a nullity, unless the incorrect act is of a most fundamental nature. Matters of procedure are not normally of a fundamental nature. To treat the service on a person of the summons itself instead of a notice, to which the summons itself is attached, as of so fundamental a nature that it results in a complete nullity and vitiates everything following would appear to me to be completely unreal unless there is a very good reason for this distinction between the service of the summons and the service of a notice. This requirement for the service of a notice to which the summons is attached instead of the summons itself originated in England about the middle of the last century and stems from the fact that under the English procedure the writ was a command from the Sovereign. It was considered that it would be more courteous, where the writ was to be served on a person who was neither a British subject liable to that command nor a person resident in a country in which the command could be enforced, that notice of the command should be served and not the command itself. So far as I am aware the judicial process of other countries does not take the same form. Certainly nothing in this summons is couched in terms which, if it were served on a non-Kenya citizen outside Kenya, suggests that Kenya is exercising sovereign power outside of its boundaries.
It is to be noted that the reason for this distinction does not in any way relate to the parties concerned. It would seem therefore that there is nothing in this mistaken service (the summons instead of the notice of summons as could or should be regarded of so fundamental a nature as to result in a nullity. This is all the more so when the two states involved are two partner states in the East African Community and share a common final Court of Appeal. It is urged that the case of Hewitson v Fabre, (1888) 21 Q.B. 6, is an authority for stating that the act of serving a writ, instead of the notice of the writ, outside England was a nullity and not a mere irregularity. Certainly the head note so states and the case is so treated in the text books. I doubt, however, whether such was the decision of the court. The court consisted of two judges. I think the words of Field, J. are such as can only be consistent with the view that this incorrect service of the writ was a nullity. In the case of
Wills, J. however, he used these words:
"I do not say what might have happened if the defendant had appeared to the writ; he might in such a case have been stopped, as by so doing he would have induced the plaintiff to go on with the action; but I am disposed to say that unless he has done something of that kind the defendant may come at any time and ask to have the writ set aside".
These words are not consistent with the act being a nullity but are consistent only with the act being a mere irregularity which irregularity could be waived by the defendant. I might mention that the authority of this case has been doubted in the English Court of Appeal in Gohoho v. Guinea Press, (1962) 3 All E.R.785; and Re: Pritchard (1963) I All E.R. 813. In this respect I agree with all that was said by Harris, J. in the Leslie and Anderson case (supra). Even if the decision in Hewitson's case is to the effect that the service of the writ instead of the notice of writ results in a nullity, in my view the decision is wrong and should not be followed in East Africa. For these reasons I do not consider that the service of this summons was a nullity. Turning to the next main ground of appeal, it is urged that even if what occurred was an irregularity the defendant had not waived it by entering an unconditional appearance and, accordingly, that the service should now be set aside, with the result, as seems to be implied in the submission, that the judgment founded on it would become inoperative.
Where a defendant enters an unconditional appearance to an action it has always been regarded as an act which waives any irregularity. (See Re: Orr Ewing, 22 Ch.D. 456 at p.463 and the Leslie and Anderson case (supra) ). It is urged however that these decisions should not be followed because there is no provision in the rules for an unconditional appearance and also because MacDuff, J. in Jethalal Oil Mills and Soap Factory Limited v. Colonial Oil Mills Limited, Civil Case No. 22 of 1956 (unreported) held that an unconditiona1 appearance did not waive an irregularity. It is true that there is no specific provision in the rules for an unconditional appearance, but to the knowledge of members of the Court it has been the practice, for at least the last 20 odd years, where appropriate to enter a conditional appearance; and Mr. Mackie0 Robertson has stated from the Bar that he has himself done so in certain cases.
In my view, where a defendant chooses to enter an unconditional appearance in proceedings in the court, he must be taken, save in exceptional circumstances such as where he contemporaneously files a notice of motion to set aside the proceedings to which he has entered an appearance, to have waived any irregularity in the process to which he enters an appearance and thus accepts the jurisdiction of the court. Any statement to the contrary by MacDuff, J. in the Jethalal case (supra) is an incorrect statement of the law and should not be followed. The circumstances of this case, in any event, show no ground for treating the irregularities which occurred as entitling the defendant to set aside the service. If a defendant objects to any process on the ground of an irregularity, it is his duty to take immediate action to have it set aside. In this case the defendant, having entered an unconditional appearance, took out the motion which is the subject of this appeal; but in spite of being aware that there was other process designed to obtain for the plaintiff summary judgment on the summons to which an unconditional appearance had been entered, the defendant not only took no part in that process but set down this notice of motion for a date long after the other process would have been heard and determined. Action of that nature on the part of the defendant results in a position in which he can expect very little sympathy from the courts. I consider that the defendant has, by entering an unconditional appearance, waived his right to object to the two irregularities to which I have referred. I also consider that inasmuch as these two irregularities have clearly not prejudiced the defendant in any way he has not shown good reason why the service of the summons should be set aside on the ground of these irregularities and, accordingly, 1 would not set it aside.
The defendant asks in the alternative that the time for entering a defence be extended. As I have already said, in other proceedings which are not before this Court judgment was entered for the plaintiff and that judgment has not been challenged on appeal. To make an order extending the time in which a defence could be entered would not, it seems to me, be possible without also setting aside the judgment. That judgment, I have held, was regularly obtained and is not the subject of challenge in these proceedings. It would, in my view, not be possible at this stage for this Court to make an order extending the time for entering a defence. For these reasons I would dismiss the appeal with costs and I would give a certificate for two advocates. As the other members of the Court agree it is so ordered.
DE LESTANG, V-P.
I agree in every respect with the judgment prepared by Sir Charles Newbold, P. and I concur with the order proposed by him.