2022 Ugcommc 52

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA


COMMERCIAL DIVISION
MISC. APPLICATION NO. 139 OF 2020
(Arising from Civil Suit No. 41 of 2020)

MUSUMBA ISAAC ISANGA......................................... APPLICANT

VERSUS
QUID FINANCIALS LTD ............................................ RESPONDENT

BEFORE: HON. JUSTICE JEANNE RWAKAKOOKO

RULING
Introduction

This application was brought under Section 98 of the Civil Procedure Act, Cap
71, Order 36 Rules 3 & 4 of the Civil Procedure Rules, SI 71-1 for orders that:

1. The Applicant be granted unconditional leave to appear and defend Civil


Suit No. 41 of 2020
2. Costs of this application be in the cause.

Background

The Respondent sued the Applicant by summary procedure vide Civil Suit No.
41 of 2020 (the main suit) to recover a liquidated demand of UGX.
425,000,000/= and costs of the suit. The sum claimed in the main suit arose
from sale of land comprised in Kyadondo Block 214 Plot 1149, land at Kisasi (the
suit land) by the Applicant to the Respondent, but the Applicant failed to deliver
vacant possession of the land. The Applicant signed a document acknowledging
the UGX. 425,000,000/= owed to the Respondent.

The Applicant brought this application on grounds that the main suit is frivolous
and vexatious as it discloses no cause of action. That he intends to raise this as
a preliminary objection in the main suit, and prays that for this reason he be
granted unconditional leave to appear and defend the same. The Applicant also
claims that he has a meritorious and substantial defense to the main suit. That
the application raises a number of triable issues that can only be dealt with at a
trial.

The Respondent’s Manager, Okecha Charles swore an affidavit in reply opposing


this application thus. He stated that the affidavit in support of the application is
incompetent and that it flouts the rules in Order 7 of the Civil Procedure Rules,

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and neither is it supported by the Applicant’s evidence. Also that the application
does not disclose any triable issues or a plausible defense. That it was brought
in bad faith with the sole purpose of delaying the Respondent from obtaining
judgment from this court.

Representation

At the hearing, the Applicant wras represented by Paul Aheebwa Byamukama,


while Kafeero Alexander appeared for the Respondent. The parties were directed
to file written submissions per a set court schedule. Only the Respondent filed
submissions in line with the court schedule.

Issues for Determination

1. Whether the application was filed out of time and should be struck out.
2. Whether the affidavit in support of the application sworn by Barenzi
Johnny Patrick is defective.
3. Whether the Applicant should be granted leave to appear and defend Civil
Suit No. 41 of 2020.

Resolution

Issue One: Whether the application was filed out of time and should be
struck out.
The events pertaining to this issue are as follows. The Respondent filed the main
suit on 17th January, 2020, and summons in a summary suit was issued by this
court on 20th January, 2020. The summons and accompanying documents were
served onto the Applicant on 23rd January, 2020 by WhatsApp Messenger. See
affidavit of service sworn by Muhiga Hamza, a court process server, on 2nd
February, 2020. It has been held by this court that service by WhatsApp
Messenger, e-mail or any other electronic means is permissible, especially in
cases where a litigant is evading service of court processes on him or her. See
Male H Mabirizi -v- Attorney General, Mise. Application No. 918 of 2021.
Such service is effective as it does the job of notifying the litigant of the hearing
date or of pending court proceedings against him or her.

Muhiga Hamza attested to this service in paragraphs 3-7 of his affidavit of


service. He stated that he called the Applicant on 21st January', 2020 and
explained to him the purpose of his call, and his desire to serve him with court
processes. The Applicant asked him to meet him the following day at 10am. The
process server tried to reach the Applicant on the 22nd and 23rd January in vain.
He then informed the Plaintiff. The Plaintiff reached the Applicant and the two
reached an arrangement. The Plaintiff informed Muhiga Hamza to send the court
documents to the Applicant via WhatsApp Messenger, which he did on 23rd
January, 2020. The same were also sent to the Applicant’s email. Excerpts of

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these communications were marked annexures A & B to Hamza Muhiga’s
affidavit of service. The Applicant therefore was for all intents and purposes
effectively served with the summons and summary suit.

This application was filed on 17th February, 2020. The Applicant on 1st July,
2020 before hearing of this application filed Mise. Application No. 428 of 2020
seeking orders that the time for filing Mise. Application No. 139 of 2020 be
enlarged and hence the application be validated, and costs be provided for. This
court heard Mise. Application No. 428 of 2020 on 28th June, 2022 in the presence
of counsel for both parties. Counsel Byamukama for the Applicant submitted
that his client wished to withdraw the application, to which counsel Kafeero for
the Respondent did not object. Court then ordered for withdrawal of Mise.
Application No. 428 of 2020.

Mindful of the above set of events, I shall now consider the law on time within
which to file an application for leave to appear and defend a summary suit. Order
36 Rule 3(1) of the Civil Procedure Rules provides that upon filing a summary
suit, the court shall cause to be served upon the Defendant a summons in the
format of Form 4 of Appendix A to the rules or in such other form as may be
prescribed. The summons in Form 4 of Appendix A to the Civil Procedure Rules
requires a Defendant to within ten days from the date of service of the summons
to file an application for leave to appear and defend the suit. By that requirement
of the law, the Applicant was required to file this application for leave to appear
and defend the main suit within ten days from 23rd January, 2020; that is by
close of business on 3rd February, 2020. This time is computed in accordance
with Section 34 of the Interpretation Act, Cap 3.

This application was filed on 17th February, 2020 which was out of time, and the
Applicant did so without leave of court. It appears that upon realizing this
mistake, counsel for the Applicant unscrupulously attempted to correct the same
by filing Mise. Application 428 of 2020. This however, was of no consequence as
it was withdrawn. It could not anyway have corrected the breach of the rules.

Therefore, I find that this application was filed out of time and should therefore
be struck out. Issue one is answered in the positive.

Issue Two: Whether the affidavit in support of the application sworn by


Barenzi Johnny Patrick is defective.
This application was supported by an affidavit sworn by Barenzi Johnny Patrick,
one of the Applicant’s lawyers. He deponed in paragraph 1 of his affidavit that
he was instructed by the Applicant who was not in Uganda at the time, to depone
the affidavit on his behalf. Later, on 1st July, 2020, without leave of court, the
Applicant himself deponed an additional affidavit in support of the application.

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I shall comment on the legality of the additional affidavit in support filed without
leave of court. The manner in which the Applicant filed the additional affidavit
was disrespectful of court processes. This affidavit was filed almost four months
after the Affidavit in Reply had been filed. However, having read the additional
affidavit in support and the affidavit in reply, the affidavit in reply as it is
responds to the merits of the application raised in the additional affidavit.
Therefore, the Respondent does not stand to be prejudiced in this matter if the
additional affidavit were admitted. Therefore, in my discretion under Section 98
of the Civil Procedure Act, this additional affidavit in support of the application
is admitted on this ground. Additionally, it does not depart from the grounds laid
out in the notice of motion or introduce new grounds for the application.

The Applicant in his additional affidavit in support of the application attempted


to explain his relationship with the Barenzi Johnny Patrick. What this court can
collect from this additional affidavit is that Mr. Barenzi is the Applicant’s lawyer.
That Johnny Patrick’s averment in paragraph 1 of his affidavit that at the time
of his affidavit the Applicant was not in the country is untrue. The stamps in the
Applicant’s passport marked Annexure A to the Applicant’s additional affidavit
in support prove that on 17th February, 2020 the Applicant was within the
country. Paragraphs 5-7 of the additional affidavit in support also prove the
Applicant was in the country on 17th February, 2020.

Secondly, the Applicant’s additional affidavit reveals that Mr. Barenzi swore an
affidavit in support of the application without the requisite authority. That is, he
was not an appointed agent of the Applicant, but was simply given instructions
as counsel for the Applicant. He was not given authority by the Applicant to
depone an affidavit in this application on his behalf as claimed in paragraph 1
of Barenzi’s affidavit in support. Mr. Barenzi was on 17th February, 2020
instructed by the Applicant to “further progress the progress of this case.” See
paragraphs 2 & 7 of the Applicant’s additional affidavit in support of the
application.

The law is that a person swearing an affidavit on behalf of another/others must


present their authority in writing, and attach the same to the affidavit. This was
set out by this court in Makerere University -v-
St. Mark Education Institute
& Ors, Civil Suit No. 378 of 1993, and Bishop Patrick Baligasiima -v- Kiiza
Daniel & Ors, Mise. Application No. 1495 of 2016. Mr. Barenzi did not present
any such evidence, and the additional affidavit of the Applicant himself further
proves that Mr. Barenzi swore his affidavit purportedly on behalf of the Applicant
without the requisite authority. Mr. Barenzi purports to swear to facts which in
all truth he has no knowledge of. For that reason, the affidavit in support of the
application is defective and struck off. See also Order 19 Rule 3 of the Civil
Procedure Rules, and Kaheru Yasin & Anor -v- Zinorumuri David, Mise.
Application No. 82 of 2017.

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Issue two is answered in the positive. In turn, the application is struck out.

Issue Three: Whether the Applicant should be granted leave to appear


and defend the Civil Suit No. 41 of 2020
Having resolved issues 1 & 2 in the positive, it follows that this application is not
granted. As already stated above, I find that the application was filed out of time,
and that the affidavit in support of the application was defective. This court
struck out Mr. Barenzi’s affidavit in support of the application together with its
attachments because it was sworn without authority. However, the Applicant’s
additional affidavit in support at the discretion of the court, stood.

In there, the Applicant avers that he has a plausible defense to the main suit
and that his application raises triable issues. See paragraphs 10 & 12 of the
additional affidavit in support. He however does not expound on this. He makes
mere assertions that are not substantiated upon.

In Kotecha -v- Mohammed [2002] 1 EA 112, the Court of Appeal of Uganda


explained and held:

“Under the English Rule the Defendant is granted leave to appear and
defend if he is able to show that he has a good defence on the merit; or
that a difficult point of law is involved; or a dispute as to the facts which
ought to be tried; or a real dispute as to the amount claimed which requires
taking an account to determine; or any other circumstances showing
reasonable grounds of a bonafide defence.”

The underlined parts of the above holding point to a requirement by the


Applicant/Defendant to prove to the court that he or she possesses a good
defense to the main suit or his application raises triable issues. Indeed, as the
Supreme Court stated in Geoffrey Gatete & Anor -v- William Kyobe, SCCA
No. 7 of 2005 the purpose of the application is not for the Defendant to prove
his or her defense. But simply to show that there is such a defense or triable
issue. Mere assertions not expounded upon in affidavit do not make the cut. The
Applicant did not clarify to this court what triable issues his application raises,
or even what his defense is. He simply claimed that he has a defense.

I find such averments insufficient to prove to this court that the Applicant has a
good defense or that his application raises triable questions of law or fact. For
that reason, the application fails. Issue three is answered in the negative.

Conclusion

In the premises, Order 36 Rule 5 of Civil Procedure Rules provides that once
leave to appear and defend is denied, the Respondent/Plaintiff is entitled to a
decree in the summary suit against the Applicant/Defendant as is stated in

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Order 36 Rule 3 particularly Rule 3(2) of the Civil Procedure Rules. What these
rules read together infer is that once an Applicant is denied leave to appear and
defend the main suit, the Respondent/Plaintiff is then automatically entitled to
a decree for an amount not exceeding the sum claimed in the plaint and costs.
In this case, the Respondent is entitled to the UGX. 425,000,000/= claimed in
the specially endorsed plaint, and costs.

1. This application is denied.


2. The Respondent/Plaintiff is hereby granted judgment in Civil Suit No. 41
of 2020.
3. The Respondent/Plaintiff is hereby awarded UGX. 425,000,000/= as
money owed to it by the Applicant/Defendant.
4. Costs of this application and in the main suit are awarded to the
Respondent/Plaintiff.

I so order.

29/07/2022

This Ruling was delivered on the 2022

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