THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC APPLICATION NO 584 OF 2013
(ARISING FROM HCCS NO 503 OF 2012)
THREEWAYS SHIPPING SERVICES (GROUP) LTD}.........APPLICANT/DEFENDANT
MTN UGANDA LTD}......................................................RESPONDENT/PLAINTIFF
HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
This ruling arises from a preliminary objection to the Applicant’s application for leave to amend its written statement of defence.
At the hearing of the application, the Respondent/plaintiff was represented by Counsel Paul Kuteesa while the defendants were represented jointly by Counsels Kiryowa Kiwanuka, Wycliffe Birungi and Fred Mpanga.
The Respondent’s objection to the application for amendment of the written statement of defence is that it is supported by a defective affidavit deposed to by Sumaiyah Nanyondo, an advocate working with one of the law firms representing the Applicant. The Respondents Counsel contends that the affidavit offends rule 9 of the Advocates (Professional Conduct) Regulations which forbids and Advocate from giving evidence in contentious matters. He submitted that the matter is contentious. It supports an application where the Applicant seeks to amend a defence and introduce matters of fact in contention between the Applicant and the Respondent. Secondly, the deponent deposes to facts that are not and cannot be within her knowledge. She is not an official of the Applicant and deposes to matters which are unique to officials of the Applicant and does not give the source of her information. Counsel referred court to paragraph 2. In paragraphs 5 and 6 she avers that the Applicant came across new information. She does not state how she came across that information. In Para 16 she deposes that the facts are based on her knowledge. This offends order 19 rule 3 (1) of the Civil Procure Rules. It further offends section 59 of the Evidence Act which forbids hearsay evidence.
The Respondents Counsel further submitted that the said affidavit contains lies. He referred to the decision of the court in MA 966 of 2011 Mugoya Construction vs. Central Electrical where an affidavit was rejected. Furthermore Hon. Justice Geoffrey Kiryabwire in MA 565 of 2011 between Simon Tendo Kabenge and CO Advocates versus Mineral Access Systems U Ltd rejected a similar affidavit. Counsel further relied on the case of Banco Arabe Espanol vs. Bank of Uganda for the holding that an affidavit that was fatally defective cannot stand and should sustain an application. Rule 9 of the Advocates (Professional Conduct) Regulations prohibits advocates from deposing affidavits in contentious matters.
In reply for the Applicants it is contended that Rule 9 of the Advocates (Professional Conduct) Regulations does not prohibit advocates from deposing affidavits on matters within their knowledge. Paragraph 2 of affidavit of the deponent establishes how she has the knowledge. Paragraphs 5 and 6 are also relevant they are matters within the knowledge of the deponent. Thirdly the affidavit is not contentious and cannot be contentious between the advocate and client. The Mugoya case (supra) is distinguishable because it discuses falsehood. The affidavit in contention does not contain any falsehood and the case of Simon Tendo Kabenge (Supra) deals with falsehood. Consequently the Applicants oppose the preliminary application and submit that the application is properly before the court and the provisions of order 19 rules 3 have not been violated or infringed.
In rejoinder the Respondents Counsel submitted that the affidavit of the deponent contains falsehoods in so far as it deposes to facts which she does not know. She does not know whether the Applicant instructed Messrs A.F Mpanga advocates. She does not state that she has seen the defence filed by them. Secondly she purports to say in paragraph 5 that a memorandum of understanding was obtained under pressure and duress on Applicant. Lastly in paragraph 6 she was advised by the Applicant, whom she knows is a company but does not state who in the company advised her. In conclusion she tells lies by not disclosing the source of her information. Order 19 rule 3 applies to this case. She does not depose to facts based on her belief but her knowledge. Counsel reiterated earlier prayers.
I have duly considered the objections of the Respondents Counsel and the submissions in reply. I have also had occasion to consider the law and the affidavit in question. The affidavit in support of the application for amendment of the written statement of defence of the defendant is deposed to by Sumaiyah Nanyondo affirmed on 9 July 2013 (hereinafter referred to as the deponent).
The deponent is an advocate practising with Messieurs Kiwanuka and Karugire Advocates. Objection was made to paragraph 2 of the affidavit where she deposes that the Applicant instructed its advocates Messieurs A.F Mpanga advocates to file a defence on its behalf against the claim by the Respondent for breach of contract between the parties. Counsel for the Respondent submits that it does not indicate how she came across the information. As far as paragraph 2 is concerned, the fact of instruction of the said firm of advocates can be discerned from the written statement of defence. Paragraph 1 of the affidavit clearly deposes that the deponent was duly instructed in the matter and conversant with it. As far as paragraph 2 is concerned, the deponent as an advocate having conduct in the matter does not need to disclose the source of information because it is a matter that can be within the knowledge of Counsel having conduct. Before referring to the law as stated in Order 19 rule 3 (1) of the Civil Procedure Rules, objection was made to paragraphs 5 and 6 of the deponent’s affidavit.
The deponent deposes in paragraph 5 of the affidavit that upon receiving instructions, perusal of the pleadings filed by the Applicant in court and after various discussions between the joint advocates and the Applicant, new information necessary for determination of the real issues in controversy between the parties and which had not been included in the Applicants written statement of defence presented in court was discovered to wit: that the memorandum of understanding which is the subject of the suit is void for illegality and its enforcement would be contrary to public policy and cannot be enforced by the court. Secondly that the memorandum of understanding was obtained by the Respondent under pressure, and undue influence/or duress on the Applicant by the Respondent. In paragraph 6 the deponent deposes that she is advised by the Applicant that the new information was not in its knowledge at the time the written statement of defence was filed in this honourable court.
The Respondents Counsel relied on order 19 rule 3 (1) of the Civil Procedure Rules and submitted that the paragraphs referred to offends order 19 rule 3 (1) (supra). This is also because in paragraph 16 it is averred that whatever is stated in the affidavit is true to the best of the deponent’s knowledge. Counsel relied on the decision of this court in Miscellaneous Application number 966 of 2011 between Mugoya Construction versus Central Electrical where an affidavit was rejected. Secondly the decision of honourable Justice Geoffrey Kiryabwire in Miscellaneous Application number 565 of 2011 between Simon Tendo Kabenge and Company Advocates versus Mineral Access Systems (U) Ltd where a similar affidavit was rejected. Finally Counsel relied on the case of Banco Arabe Espanol versus Bank of Uganda Supreme Court civil appeal number 8 of 1998.
I have carefully considered the submissions and the reply by the Applicants Counsels. Order 19 rule 3 of the Civil Procedure Rules deals with matters to which affidavits shall be confined. Sub rule 3 (1) provides as follows:
"Affidavits shall be confined to such facts as the deponent is able of his or her knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided the grounds thereof are stated."
Consequently the provision of law confines affidavits to such facts as the deponent is able of his or her knowledge to prove except on interlocutory applications. In other words, it is a re-enactment of the rule against hearsay evidence. I have carefully considered the relevant paragraphs of the deponent’s affidavit. Particularly paragraph 5 is pertinent. In that paragraph she avers that upon receiving instructions, perusal of the pleadings of the Applicant in court and after various discussions between the joint advocates and the Applicant, new information which had not been included in the Applicant’s written statement of defence as presented was discovered. The affidavit is confined to the discovery of new information after perusal of pleadings and several meetings and discussions between the joint advocates. As far as the averments that the memorandum of understanding the subject matter of the suit would be void for illegality is concerned, it is a matter of law which is within the knowledge of Counsel. Secondly the conclusion that the memorandum of understanding was obtained by the Respondent under pressure, undue influence and/or duress on the Applicant by the Respondent is based on a copy of the draft amended written statement of defence which is attached as annexure "B". In other words it is the instruction to Counsel to draft written statement of defence and include undue influence and/or duress on the Applicant by the Respondent.
The submissions of the Respondents Counsel suggested that the affidavit should be made by somebody who knows about the undue influence. My analysis of the matter is that it is sufficient for Counsel with instructions to include undue duress. It is not incumbent upon the Counsels to prove the undue duress. It is sufficient for them to that their client has instructed them that there was undue duress and this ought to be included in the defence. It is within the knowledge of the Applicants Counsel or the deponent that new information necessary for determination of the new matters in controversy had been discovered by the client. The deponent does not claim to have discovered new information. The affidavit clearly indicates that the new information had been discovered and discussed between the clients and Counsels having joint conduct of the defence.
The Applicant is not obliged to prove the undue influence or duress. That is a matter for the trial of the action. However it is a matter that is relevant for purposes of pleading and it is sufficient to inform the court that the Applicant intends to plead the same. The intention of the Applicant is contained in the amended written statement of defence which is attached as annexure "B".
In those circumstances, the affidavit does not offends order 19 rule 3 (1) of the Civil Procedure Rules. It is sufficient for Counsel to know that it is necessary to plead additional defences on the basis of discussions and instruction. The case of Mugoya Construction Company versus Central Electrical International Ltd Miscellaneous Application Number 699 of 2011 (supra) is clearly distinguishable.
In that case the court dealt with the capacity of the Counsel to depose to an affidavit under order 3 of the Civil Procedure Rules. In that case the advocate who deposed the affidavit purported to do so on behalf of and in the capacity as an authorised agent. An authorised agent acts as a party. In this particular case, the advocate has not purported to act as a party but as Counsel duly instructed.
For the same reason the provisions of rule 9 of the Advocates (Professional Conduct) Regulations is inapplicable because the said Counsel is unlikely to be called as a witness but only notifies the court that there are grounds for amendment of pleadings. Pleadings are not evidence. Pleadings are averments based on instructions of a client. It is the witnesses who are indicated in the written statement of defence who will prove the averments.
In the premises, the objection to the deponent’s affidavit in support of the application lacks merit and is accordingly overruled with costs.
Ruling delivered in open court this 27th day of September 2013.
Christopher Madrama Izama
Ruling delivered in the presence of:
Counsel Kiryowa Kiwanuka for the Applicant
Kuteesa Paul together with Bruce Musinguzi for the Respondents
Oscar Baitwa CEO of Applicant in court
Respondent not in attendance
Charles Okuni: Court Clerk
Christopher Madrama Izama
27th September 2013.