Court name
Commercial Court of Uganda
Judgment date
4 May 2012

David Lubaale v Every Child Ministires (Miscellaneous Application-2012/81) [2012] UGCommC 40 (04 May 2012);

Cite this case
[2012] UGCommC 40

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NUMBER 81 OF 2012

(ARISING FROM CIVIL SUIT NUMBER 249 OF 2009)

 

DAVID LUBAALE} ......................................................…                                                                                                              APPLICANT/DEFENDANT

VERSUS

EVERY CHILD MINISTRIES}….......................................                                                                                                           RESPONDENT/PLAINTIFFS

 

BEFORE HONOURABLE JUSTICE CHRISTOPHER MADRAMA

 

RULING

The Applicant filed this application under order 9 rule 27, order 52 rules 1 and 3 of the Civil Procedure Rules, section 98 of the Civil Procedure Act, and section 33 of the Judicature Act. It is for orders that the order to proceed ex parte issued on the 30th of June 2011 and the subsequent judgment of the Court issued on 16 December 2011 be set aside and the case be heard inter parties.

 

The grounds and facts in support of the application are set out in the notice of motion and affidavit of the Applicant. The Applicant was served with summons to file a defence and he duly complied by filing a written statement of defence on 22 July 2009. On 30 June 2011 when the order to proceed ex parte was issued, the Applicant could not attend Court as he was attending to his sick mother. Consequently the Applicant was prevented by sufficient cause from appearing in Court when the suit came for hearing on 30 June 2011. He avers that it is just and fair that the application is allowed. The application was issued on 27 February 2012 by this Court. The facts in the affidavit in support of the application deposed by the Applicant add additional facts. The Applicants lawyer Messieurs Kafuko Ntuyo and company advocates are the advocates referred to in the affidavit. On the 30 June 2011 when the case was scheduled for hearing the Applicant was attending to his sick mother and thus failed to attend Court. He had communicated his inability to attend Court on 30 June 2011 to his lawyer Mr Kafuko Ntuyo and also instructed him to be in Court. On 4 July 2011, when he contacted his lawyer he learned that he had failed to attend Court on the 30 of June 2011 because he had to attend to a meeting at the Law Development Centre. His lawyer was supposed to inform him of the next hearing date which he never did. On 17 October 2011 after he had appointed the new Counsel on record to represent him, he learnt from them that the Court had decided to proceed ex parte on the 30th of June 2011. Lastly the Applicant states that he has a very good defence to the whole suit and is interested in presenting his defence.

In reply the Respondent opposed the application in the affidavit of Esther Nakamatte an advocate. She avers that she has had personal conduct of the main suit and the matters arising there from. She further has full instructions together with Mr Joseph Luzige to represent the Respondent and it is in that capacity that she deposed to the affidavit. The Applicant was given ample time and opportunity to appear and defend the main suit and failed at all material times right from mediation up to the judgment time to do so. That even before the Court issued the order to proceed ex parte, the Court directed that the matter be stood over and service be effected again on his lawyers which service was done. Upon service of the said letter to the Applicant’s lawyer, he endorsed on it that he would be at the Law Development Centre which was highly contemptuous of Court and he did not even bother to send any advocate to inform the Court. There was no proof whatsoever that the Applicant was attending to his sick mother as alleged and no medical forms were attached. There was no proof that he communicated his inability to attend Court to his lawyers as his lawyers never mentioned anything to that effect.

 

The deponent further avers that the judgment sought to be set aside gave the Respondents what the Applicant admitted in the defence and nothing more. Notwithstanding the above the witnesses who testified were residents of the United States of America and spent a lot of money in terms of their tickets and other expenses to prosecute the case. And whenever the case had been fixed for hearing the Applicant would frustrate them and kept on making excuses to avoid the case taking off on the respective days. Finally it was not true that the Applicant has a very good defence to the suit. The defence already on the Court record is very wanting and admitted indebtedness to the Respondent.

 

When the application came for hearing the Applicant was represented by Counsel Robert Karigyenda who had taken over from learned Counsel Kafuko Ntuyo while Joseph Luzige appeared for the Respondent. Both Counsels agreed to file written submissions and the Court agreed.

 

Applicant’s Written Submissions

learned Counsel for the Applicant after summarising the law under which the application was brought, the grounds of the application contained in the chamber summons and the facts of the application in the affidavit in support deposed to by the Applicant submitted that from the evidence the Applicant put himself within the jurisdiction of the Court when he filed a written statement of defence.

 

He contended that on the day the case proceeded ex parte, the Applicant’s lawyer had full instructions to be in Court but he did not turn up. Had this lawyer appeared in Court or appointed another advocate to hold brief for him, the case would have proceed inter parties and this application would not arise.

 

Learned Counsel for the Applicant submitted that negligence of Counsel should not be visited on the litigant.  He relied on the decision in Adura Omuto Ltd vs. Henry Nyombi (1998-2000 HCB) 31 and Jackson Rwakiseta vs. Lonhro Cotton (U) LTD (2001-2005) HCB Vol. 2 at 70.  

 

Learned Counsel submitted that it was sufficient cause when the Applicant proved that he was attending to his sick mother at the time when the case proceeded exparte. This coupled with the negligence of the previous Counsel is sufficient reason why the order to proceed exparte issued on the 30th June 2011 and the subsequent judgment should be set aside.

 

Secondly, learned Counsel submitted that there were irregularities/illegalities on record which the Court should take note of.

 

Learned Counsel submitted that the Plaintiffs/Respondent in the main suit and in this application is “Every Child Ministries”.  The certificate of incorporation which was presented in Court in evidence is for “Every Child Ministries Inc”.  These reveal two different parties.

Learned Counsel further submitted that it was more bizarre on account of the evidence presented in Court. The Bank statement marked P5 and the land sale agreements marked P.8, P9 and P10 all belong to “Every Child Ministries-Uganda” and this introduced yet another party to the suit. He submitted that Every Child Ministries –Uganda was first registered by the Applicant as a community based organisation (CBO) in Wakiso district.  The Applicant later incorporated it as a company limited by guarantee in November 2008.

 

As far as irregularities are concerned, learned Counsel submitted that Every Child Ministries, the plaintiff in the plaint had no legal capacity. It cannot sue or be sued.  Every Child Ministries Inc. and Every Child Ministries-Uganda are different legal persons. The documents from Every Child Ministries- Uganda where the Applicant was a promoter and Director cannot be used to prove a claim for Every Child Ministries Inc or Every Child Ministries as disclosed in the plaint.

 

Learned Counsel submitted that an illegality or irregularity once brought to the attention of the Court makes it imperative that the Court should not sanction it. He relied on the case of Akisoferi Ogola vs Othieno and another 1997 (HCB) 53. A copy is attached hereto and Makula International Ltd. Vs Cardinal Nsubuga & another (1982) HCB II.

 

He contended that the above illegalities go to the root of the substance in the main case and unless they are considered, it would occasion an injustice to the Applicant/Defendant. He therefore prayed that the application is allowed with costs in the cause.

 

Respondent’s Written Submissions

 

In reply learned Counsel for the Respondent Mr Joseph Luzige submitted that the Respondent through her/its Lawyers filed an affidavit in Reply deposed by Esther Nakamatte in opposition of the Application.

 

Chronologically following the Applicant’s grounds of the Application learned Counsel submitted that in as far as the Applicant contends that he was attending to his sick mother and that he had instructed his Counsel Mr Kafuko Ntuyo represent him in Court, he referred to the affidavit of Esther Nakamatte in paragraphs 4, 5, 6 and 7. Submitted that the Applicant had been given ample time, right from scheduling of the main case to appear and defend the main suit and at no particular time did the Defendant/Applicant appear in Court to show that he was interested in giving his side of the story. He contended that the only time the Applicant appeared on the record was when he appeared in this application. The Plaintiffs who are residents of the United States of America kept on flying back into Uganda whenever the case was slated to be heard only to be adjourned because of the absence of the Defendant/Applicant. The Plaintiffs/Respondent’s representative spent a lot of money in terms of payment of Air Tickets to appear and prosecute their case.

 

Learned Counsel for the Plaintiffs further submitted that the conduct of the Defendant does not indicate that he wanted his side of the story to be heard.

 

Learned Counsel submitted that there was no evidence that the Defendant's mother was sick or evidence that he had instructed his Counsel. He referred to the evidence on record where the Court directed Counsel for the Plaintiffs to serve the Defendants Counsel on the day the matter proceeded ex parte. As far as the preference of the Defendants Counsel to attend a meeting at the Law Development Centre is concerned, learned Counsel contended that the High Court takes precedence over the Law Development Centre.

 

Learned Counsel for the Plaintiffs submitted that though the Court was entitled to proceed in the morning, it still stood the matter over to the afternoon to give the Defendants Counsel a chance to appear.

 

As far as mistake of Counsel is concerned, learned Counsel for the Plaintiffs submitted that the conduct of the Defendant himself by not ever appearing and attending Court before is itself contemptuous of Court and an indication that he opted to stay away from Court.

 

Furthermore learned Counsel contended that it took the Applicant about two months to realise what was going in the Court and this was an indication of lack of seriousness and also lack of interest in the case.

 

In respect to the submission that the Applicant has a good defence, learned Counsel submitted that the Applicant did not have a good defence. He contended that the Court record shows that the Defendant admitted liability in as far as he stated that he bought property and was yet to hand over  documents to the Plaintiff’s Organisation.

 

More so, the Defendant has no defence as he admitted through a letter on Court record that he wanted to settle the matter out of Court written by his Lawyers and even proposed the method he would follow to pay back the money and also the minibus among other claims and it is the very basis of that admission that Court followed in the judgment. Learned Counsel contended that even if the case was retried, the Defendant and no defence against his admission.

 

In reply to the allegations that there are irregularities learned Counsel submitted that the Plaintiffs is clearly Every Child Ministries Inc and the Directors of the said Company Incorporated in the United States of America clearly adduced evidence of its existence which is on Court record.  Failure to include the word “Inc” at the end of the Application which is the Applicant’s Application does not render it an illegality, the plaint clearly describes who the Plaintiffs is. He submitted that the fact that the Applicant registered a certain Every Child Ministries as a Community based Organization or as a Company Limited by guarantee or by whatever name does not make it the Plaintiffs.

 

He further submitted that failure to include the word “Inc” is a curable error.

He submitted that the Respondent was the country director of the Plaintiffs and he admitted so in his own defence paragraph 3 (a) that he was appointed as Director of the Plaintiffs Organization. He cannot therefore, be seen at this time to raise matters contrary to his admission and defence.

 

Applicant’s Submissions in Rejoinder

In rejoinder learned Counsel for the Applicant submitted that it is the Applicants mother who was sick and it was the mother who had the medical records. The proof that the Applicant instructed his lawyers was in his own affidavit to that effect.

 

As far as the allegation of contempt is concerned, learned Counsel for the Applicant submitted that this affirms the fact that the Applicant has suffered because of the negligence of his Counsel. He therefore reiterated his earlier submission that there was negligence and inadequacy in the acts of learned Counsel for the Applicant which should not be visited on the Applicant. As far as the submission that the Applicant took two months to realise that the Court had proceeded is concerned, learned Counsel for the Applicant referred to paragraphs 7 and 8 of the affidavit of the Applicant. It avers that Mr Kafuko Ntuyo had promised to inform the Applicant of the next hearing date which he never did. This again proves the previous advocates negligence.

 

As far as the contention that the Applicant does not have a good defence is concerned, it is not true that the written statement of defence on record admits the Plaintiffs claim. Last but not least as far as the irregularities/illegality is concerned, learned Counsel contended that Every Child Ministries is not a legal entity. That learned Counsel for the Respondents/Plaintiffs has not answered the submissions on irregularities/illegalities. He contended that "Every Child Ministries" is not a legal entity and cannot sue or be sued.

 

As far as Every Child Ministries – Uganda is a community based organisation/company limited by guarantee registered by the Applicant, learned Counsel for the Applicant contended that this strengthens the contention that the evidence on record which includes bank statements and sale agreement cannot be used to prove the suit of the plaintiff as the said property and agreement belonged to the Applicant.

Ruling

I have duly considered the pleadings of the parties in the application, the affidavits attached, and the written submissions of learned Counsels for both parties and the authorities referred to.

 

Under order 9 rule 27 of the Civil Procedure Rules, the Court has statutory guidelines as to the grounds on which to set aside an ex parte decree. Rule 27 reads as follows:

"In any case in which a decree is passed ex parte against a Defendant, he or she may apply to the Court by which the decree was passed for an order to set it aside; and if he or she satisfies the Court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into Court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such Defendant only, it may be set aside as against all or any of the other Defendants also."

The key words with regard to the Applicants application are whether the Applicant was prevented by "sufficient cause" from appearing when the suit was called for hearing. "Sufficient cause" is a question of fact and relates to the inability of the Applicant to appear in the Court on the day the suit is fixed for hearing. Once the Court is satisfied that there was sufficient cause that prevented the Applicant from appearing in Court on the date when the suit was called for hearing, it shall set aside the ex parte Decree.  For emphasis the sufficient cause relates to the prevention of the Applicant from appearing in Court on the relevant date when the suit proceeded ex parte.

 

When the matter came for hearing, the case had been mentioned before me several times. On 21 April 2011 when the matter first came before me, the Plaintiff’s Counsel Joseph Luzige informed the Court that they had been trying to settle the matter but it was only the Defendants Counsel Mr Kafuko Ntuyo who would appear but the Defendant has never appeared. The Court fixed this suit for scheduling on 2 June 2011 at 9:30 AM. The Court further ordered that the Defendant should be served through substituted service in the newspapers. On that date the Defendants Counsel was in Court. When the matter had come for hearing on 2 June 2011, the Defendants Counsel Mr Kafuko Ntuyo appeared but the Defendant was not in Court. The parties agreed that they would appoint a valuation surveyor and a neutral person to value the properties the Defendant had bought. Pre-trial conferencing was adjourned to 16 June 2011 at 2 PM for mention for the parties to report on the progress of appointment and terms of reference of a valuation surveyor who would act as a referee of the Court in this suit. Both parties were to equally meet the costs of the valuation surveyor.

 

This suit came again on 29 June 2011 and only the Plaintiff’s Counsel and directors of the Plaintiffs were in Court. They informed the Court that it had been fixed for 30 June 2011 but it had been brought forward. They further informed Court that the Defendant's advocate had filed an application in Court raising a number of issues.

 

The Court adjourned to 30 June 2011. The record shows that on 30 June 2011 at 9:30 AM, the suit came for hearing but the Defendants Counsel was absent and so was the Defendant. The Plaintiff was fully represented by John Rouster the international co-director of the Plaintiff. The Court stood the matter over until 2:30 PM to enable the Plaintiffs to again serve Mr Kafuko Ntuyo and also get in touch with him on the phone. Evidence presented in Court on 30 June 2011 showed that learned Counsel for the Defendant had endorsed papers fixing the hearing of the suit for 30 June at 9:30 AM. Secondly there was an affidavit of service sworn by Esther Nakamatte proving that the Defendant had clear notice of the hearing date. The Court also considered that it was an extraordinary case where the representatives of the Plaintiff travelled all the way to Uganda from Indiana United States of America for the hearing and had been put to expenses. Lastly the Court considered that the matter had been stood over until 3 PM. The matter had come for the hearing of the Plaintiffs case. It was not absolutely necessary for the Defendant to be present in the suit so long as his learned Counsel was available to cross examine the witnesses provided he knew the Defendant's case well. In those circumstances, the Court was aware that the Defendants Counsel was not going to appear. In fact evidence shows that the deponent phoned Mr Kafuko Ntuyo and communicated to him that the Court had stood the suit over until 3 PM in the afternoon. She also wrote to Mr Kafuko Ntuyo a letter which reads:

            "The above subject to refers;

Be informed that the hearing of this case came up to date and the trial judge stood over the case up to 3 o'clock today to allow you and your client appear for the hearing of the same.

Please do attend."

The letter attached to the affidavit has endorsed on it the handwritten notes of learned Counsel Kafuko Ntuyo. He writes as follows:

"30 – 6 – 2011 1.45 pm. Received and noted. I have a board of executives meeting at LDC at 2:30 PM today prior fixed. You did not contact us to agree on a valuer as directed by Court before any trial can proceed. Let the matter be adjourned to another date for hearing."

 

Also attached to the affidavit of service of Esther Nakamatte is a hearing notice by consent endorsed by Mr Kafuko Ntuyo on 16 June 2011 fixing the case for hearing on 30 June 2011 at 9:30 AM.

 

The conclusion is that learned Counsel Mr Kafuko Ntuyo, Counsel for the Defendant was aware of the hearing of the suit at 3 PM. He chose to attend a meeting of the board of executives at LDC (Law Development Centre).

 

Learned Counsel for the Applicant submitted that the mistakes of Counsel should not be visited on the client. He referred to the cases of Adura Amuto Ltd vs. Henry Nyombi [1998- 2000] HCB 31 and Jackson Rwakiseta vs. Lonhro Cotton (U) Ltd [2001 – 2005} HCB Vol. 2 at page 70 for the principles that the negligence of Counsel should not be visited on the litigant. The current situation is clearly distinguishable on two grounds. The first ground is that the learned Counsel for the Defendant was not negligent. He knew of the hearing date and preferred to attend a board of executives meeting at the Law Development Centre. Secondly, the consent hearing notice was endorsed by him fixing the case for 30 June 2011. I agree with learned Counsel for the Plaintiffs that the Defendants Counsel in the very least ought to have sent someone on holding brief for him. The second ground is that the Defendant has not been attending Court. It therefore cannot be said that the Defendant had interest to pursue his defence. I have also critically examined the affidavit in support of the Applicant’s application to set aside the judgment. Paragraph 4 of the affidavit in support of the chamber summons does not show that the Defendant was unaware of the hearing date of 30 June 2011. In fact he states in paragraph 5 of his affidavit that he communicated his inability to attend Court on the morning of 30 June 2011 to his lawyer Mr Kafuko Ntuyo and instructed him to be in Court. From an overview of the facts, the meeting of the Defendants lawyers was at 2:30 PM. There is however no satisfactory explanation as to why the Defendant's lawyers did not attend Court in the morning. Lastly in paragraph 6 the Applicant avers and I quote: "24 July 2011, I contacted my lawyer Kafuko Ntuyo in his office and he informed me that he had failed to attend Court on 30th of June 2011 because he had to attend to a meeting at Law Development Centre.” This averment proves that both the Defendant and his lawyer knew of the hearing date. The meeting in the afternoon however did not excuse their absence in the morning.

 

Last but not least though the question of sufficient cause is subjective in the sense that it relates to the inability of the Defendant to appear on the date fixed for hearing, I agree with learned Counsel for the Plaintiffs, that the Defendant was not greatly prejudiced by this suit proceeding ex parte. This is based on his acknowledgement of indebtedness to the Plaintiffs considered in the final judgment of the Court. The final judgment of the Court disallowed several claims of the Plaintiffs on the grounds that they were not pleaded and as such could not be proved. The Defendant had undertaken to pay US$13,974 to the Plaintiffs. The Defendant had refunded only US$2100 leaving an outstanding amount of US$11,874 which was awarded as special damages. Furthermore, the price of the bus which had been sent to the Defendant as cash was awarded as special damages. This was US$30,000. The Defendant had undertaken through his lawyers to buy this bus for the Plaintiff’s projects in Uganda. As far as evidence is concerned, in a letter exhibited in Court and the written on the Defendant's behalf, the Defendant undertook to buy a minibus for the Plaintiffs in lieu of money sent by the Plaintiffs for the purchase of a bus. This is exhibit P4 which reads in part:

"The money to buy this item was conned from David by a middleman. Nonetheless he is willing to purchase a minibus and hand it over to ECM within six months."

 

The Plaintiffs was only awarded special damages claimed in the plaint of US$40,000 and not all that had been proved in evidence. The application of the Applicant does not show that the Defendant has been prejudiced by an award to the Plaintiffs of general damages of US$15,000.

Last but not least the Applicant avers that he has a very good defence to the whole suit. A critical appraisal of this statement shows that the defence relates to the naming and identity of the parties in the suit. Particularly the naming and identity of the Plaintiffs. I would therefore deal with this matter in the next issue raised by the Applicants Counsel. All in all I am not satisfied having considered all the factors stated above that the Defendant had to attend to his sick mother in another district. The Defendant had not been attending Court. His learned Counsel who knew of the date did not inform the Court or learned Counsels for the Plaintiffs with whom he was in touch that the Defendant was attending to his sick mother. As far as the allegation of negligence of learned Counsel for the Defendant is concerned, I do not agree that learned Counsel for the Defendant was negligent in the sense that it was the Defendants Counsel who kept on attending Court on behalf of the Defendant on all previous occasions. The Defendant did not appear in Court in the previous occasions and there is even an order of the Court to serve the Defendant personally in the media notwithstanding the presence of his Counsel in Court. The conclusion is that the Defendant had at all times been avoiding appearances in Court without giving any reasons whatsoever. In the premises, the Defendant/Applicant has not shown sufficient cause for setting aside the final judgment of the Court on the merits and the previous order of the Court to proceed ex parte.

 

Issue of illegality

I have carefully considered the submissions of the Applicants Counsel on the question of the identity of the Plaintiffs.  Documents exhibited show that the Applicant was working for Every Child Ministries – Uganda.  Learned Counsel for the Applicant submitted that Every Child Ministries and Every Child Ministries Incorporated are two different entities.  The Plaintiffs in the main suit is Every Child Ministries. The certificate of incorporation presented in Court in evidence is for Every Child Ministries Inc. He submitted that the two are two different parties. The bank statement exhibit P5 and the land sale agreements marked exhibit P8, P9 and P 10 all belong to Every Child Ministries – Uganda. He submitted that this introduces another party to the suit.

 

The Applicant admits that Every Child Ministries – Uganda was first registered by the Applicant as a community-based organisation and later on incorporated as a company limited by guarantee in November 2008.

 

He therefore submitted that Every Child Ministries, the Plaintiffs in the suit has no legal capacity. It cannot sue or be sued. Secondly Every Child Ministries Inc and Every Child Ministries – Uganda are different legal persons. He contended that the documents for Every Child Ministries – Uganda where the Applicant was a promoter and director cannot be used to prove the claim for Every Child Ministries Inc or Every Child Ministries as stated in the plaint. Finally learned Counsel submitted that an illegality once brought to the attention of the Court, it becomes imperative that the Court would not sanction it. He submitted that the legal irregularities go to the root of the substance in the main case and unless they are considered it will occasion an injustice to the Applicant/Defendant. The certificate of incorporation shows that Every Child Ministries – Uganda limited is a company limited by guarantee incorporated on the 11th day of November 2008.

 

In reply learned Counsel for the Respondent Joseph Luzige submitted that the plaint was filed by Every Child Ministries Inc and the directors of the said company incorporated in the United States of America adduced evidence on Court record. He contended that failure to include the word ‘Inc’ at the end of the application does not render it an illegality. The registration of Every Child Ministries – Uganda by the Applicant does not make it the Plaintiffs in the suit. Failure to add the word “Inc” is a curable error.

 

Paragraph 1 of the plaint shows that the Plaintiff is an international non-governmental organisation Incorporated in the state of Indiana United States of America. Secondly the Defendant is sued in his individual capacity as David Lubaale. The plaint avers that the Plaintiffs organisation appointed the Defendant as its director for Uganda and Sudan. It is true that the sale agreements were made between various sellers and Every Child Ministries – Uganda, a creature Incorporated by the Defendant/Applicant and admittedly so. Exhibit P7 shows that the Defendant/Applicant wrote to ECM USA and Uganda board. In that letter the Applicant apologised for his activities which have now formed the cause of action in this suit. Exhibit P3 is a promissory note addressed to Every Child Ministries in which the Applicant undertook to pay the principal sum of United States dollars 13,974. Stamped is a seal reading “Every Child Ministries”. Exhibit P4 is an undertaking by the Applicant’s lawyers to refund the monies to Every Child Ministries and also buy a minibus for Every Child Ministries. Exhibit P1 is the certificate of incorporation of Every Child Ministries Inc. What is further material is that the sale agreements which were executed by the Applicant in the name of Every Child Ministries – Uganda are the Applicant’s documents.

 

Learned Counsel for the Applicant brought the alleged irregularities to the attention of the Court as a by the way. However, the Applicant in miscellaneous application number 326 of 2011 applied for amendment of his written statement of defence in which application he intended to raise the very same matters learned Counsel for the Applicant submitted on. The affidavit in support of that application was sworn by the Applicant himself and avers as follows: “

  1. That I am an adult male Ugandan of sound mind of the above address and the Applicant/Defendant in this matter and I swear this affidavit in that capacity.
  2. That I was sued by an organisation calling itself "Every Child Ministries" which to my knowledge does not exist either in the United States of America or in Uganda and I have never been its employee.
  3. That I am aware that in the USA the organisation that exists is known by the name Every Child Ministries, Inc" as per a certificate of incorporation photocopy which is attached hereto and marked "A".
  4. That I am also aware that in Uganda, the organisation that exists is known by the names of "Every Child Ministries – Uganda limited" (by guarantee) as per its certificate of incorporation, a copy of which is attached hereto and marked "B".
  5. That I am also aware that Every Child Ministries – Uganda was first registered in Uganda on 29th of January 2007 as a community-based organisation as per its certificate of registration a photocopy of which is attached hereto and marked "C".
  6. That an organisation known as "Every Child Ministries" has never appointed me as its director for Uganda and Sudan and it has never been registered locally in Uganda either as an NGO or a company limited by guarantee.
  7. That therefore, an organisation known as "Every Child Ministries" has no locus to sue me for dealings which I never dealt with it to do and for which it shows no documents to prove its allegations against me and I do not have any contract with it nor did I have any contract with it between 2006 and 2009."

It is therefore my conclusion, that the defence the Defendant intends to advance in this matter is constituted in the alleged illegality brought to the attention of the Court and is a point of law based on evidence which is not contentious.

 

As far as the first issue is concerned, the plaint of the Plaintiffs is clear and explicit as to the identity of the Plaintiffs and it is averred in paragraph 1 thereof that the Plaintiffs is an international non-governmental organisation incorporated in the state of Indiana United States of America. In other words, it is easy to conclude that though the plaint is entitled as being filed by "Every Child Ministries", paragraph 1 shows that "Every Child Ministries" is an international non-governmental organisation incorporated in the state of Indiana in the United States of America. There can therefore be no doubt about the identity of the Plaintiffs from a simple reading of the plaint. The plaint shows that the Plaintiffs is an incorporated company, incorporated under the laws of the United States of America. There is further proof by the Applicant in his application for amendment of his written statement of defence where he attaches the certificate of incorporation. Exhibit P1 shows that Every Child Ministries, Incorporated was incorporated in the state of Indiana and the city of Indianapolis in the United States of America. The Defendant cannot therefore say that he did not know of the existence of Every Child Ministries Inc which name is entitled in the plaint as "Every Child Ministries". Further scrutiny of the documents exhibited in the Court shows that exhibit P9 which is a sale agreement between Every Child Ministries – Uganda and Mrs Mwanga Justine dated 22nd of April 2008 was executed by the Defendant on behalf of "Every Child Ministries" as buyer where his signature appears. Secondly, the seal which he used and affixed to the deed of sale reads as "Every Child Ministries" the very names in the plaint. Similarly the sale agreement of the property in Gulu municipality between Every Child Ministries – Uganda and the seller bears the same seal of "Every Child Ministries". It can therefore be concluded that the Defendant used the names Every Child Ministries – Uganda interchangeably with the names "Every Child Ministries". Why is he raising the question of how the plaint is entitled at this stage of the proceedings when he himself used the name "Every Child Ministries" in transactions the subject matter of this suit?

 

Paragraph 1 of the plaint which defines the Plaintiffs as an incorporated company was not expressly denied in the Defendant's written statement of defence. In paragraph 3 the Defendant avers that he was appointed a director for the Plaintiffs organisation but was never at any point paid any salary. This averment proves that the Defendant knew that he was appointed by the Plaintiffs described in paragraph 1 of the plaint. In such cases the erroneous description of the Plaintiffs by omission of the word "Incorporated" is a mere misnomer which has not misled the Defendant in any way about the identity of the Plaintiffs and the actual person who sued him.

 

In the case of A.N. Phakey vs. World Wide Agencies Limited [1948] Vol. XV EACA at page 1 the East African Court of Appeal dealt with a case where the Plaintiff was wrongly described as “Traders Limited”. The Court held that Defendant was not misguided at all and answered all the allegations in the plaint in its written statement of defence. It was subsequently established that there was no company by the name “Traders Limited”. What existed in the company register was a company named “World Wide Agencies ltd”. An amendment to the name of the Plaintiff was held to be proper and the contention that the suit was a nullity was overruled. The Court of Appeal held that the Defendant was not prejudiced and knew who was suing him. His appeal on the ground that the plaint was a nullity was dismissed. Furthermore, Odgers on Pleadings and Practise 20th Edition, by Giles Francis Harwood pg 174-175 states the practice of the English Courts:

“If any party to the action is improperly or imperfectly named on the writ and no change of identity is involved, the misnomer may be corrected in the statement of claim by inserting the right name with a statement that the party misnamed had sued ... but difficulty may arise in executing a judgment unless the Plaintiffs amends the writ.”

In this case, failure to include the words "Incorporated" at the end of the Plaintiffs name was a mere misnomer and can be corrected by inserting the word "Incorporated". In the premises, there is no illegality brought to the attention of the Court which would be a ground for setting aside the judgment of the Court. The Defendant’s averment in the written statement of defence that he was not paid any salary during that time he acted for the Plaintiffs cannot lead to any beneficial result in the sense that he never set up any counterclaim or setoff. Even if he was helping himself, he acknowledged his indebtedness in the various documents addressed to the plaintiff or representatives. The proposed written statement of defence does not offer any explanation about his acknowledgement of indebtedness. Last but not least, the evidence produced on record shows that the Defendant had repented and sought forgiveness of the Plaintiff. He also undertook to pay back certain monies and buy a minibus the basis of the judgment against him. Simply put in African, the Court cannot permit the defendant to bite the hand that fed him by the raising of technical arguments to avoid liability. In the premises, the Applicant’s application to set aside the order to proceed ex parte and the judgment of the Court has no merit and is dismissed with costs.

Ruling delivered in open court this 4th day of May 2012

 

Hon. Mr. Justice Christopher Madrama

Judge

Ruling delivered in the presence of:

Robert Karigyenda for the applicant,

Applicant in Court,

Respondents not in court or represented.

 

Honourable Mr Justice Christopher Madrama

Judge

4th of May 2012