THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 514 OF 2014
(ARISING OUT OF CIVIL SUIT 349 OF 2014)
SAMUEL SSALI ………………………………APPLICANT/DEFENDANT
GLADYS K. RWAMWAMBA …………. RESPONDENT / PLAINTIFF
BEFORE HON. JUSTICE FLAVIA SENOGA ANGLIN
This was an application made under 0.33 rr 3 and 4 C.P.R and S.98 CPA, whereby the Applicant sought leave of this court to appear and defend the suit on merit. Costs of the application were also applied for.
The grounds of the application are that:-
The Applicant is not indebted to the Respondent as claimed,
The Applicant has a good defence to the main suit and
It is in the interest of justice that, the application be allowed.
The application is supported by the affidavit of the Applicant indicating to have been sworn on 18.06.14 before a Commissioner for Oaths. The proposed written statement of defence was also attached.
There is an affidavit in reply deponed by the Respondent. Plaintiff filed on 22.08.14 but without a date as to when it was deponed.
When the application was called for hearing on 27.08.14, the Applicant appeared without his Counsel. He informed court that his Counsel had instead of coming to court gone to Kireka Police Station to represent the Applicant’s medical unit in a criminal matter. The Applicant then sought an adjournment.
The adjournment was vehemently opposed by Counsel for the Respondent on the ground that the reason advanced by the Applicant was not justifiable in the circumstances.
He pointed out that the application had been filed on 20.06.14 yet service had only been effected on the Respondent on 07.08.14. And that if Counsel for the Applicant was unable to appear in person, then he ought to have briefed a colleague to hold brief for him as required by the Advocates Regulations.
Alternatively that, Counsel for the Applicant ought to have informed Counsel for the Respondent so that he would not commit attendance for a matter that would not take off and Respondent had been in court since 9:00am.
Court rejected the adjournment sought by the Applicant and required him to present the application.
The Applicant then went through the application and the supporting affidavit and prayed court to allow the application.
In reply, Counsel for the Respondent pointed out that the affidavit in support of the application was defective as the signature and the stamp of the Commissioner of Oaths before whom affidavit is purported to have been sworn, appeared to have been super imposed by mechanical means contrary to SS. 5 and 6 of the Oaths Act. – The provisions require the deponent to appear in person before the Commissioner of Oaths to take oath.
Also that, the affidavit bearing such signature as in the present case is illegal and ought to be struck out, in which case the application remains unsupported by an affidavit and cannot stand on its own.
In the alternative but without prejudice to the forging, Counsel referred to paragraphs 3-12 of the supporting affidavit, contending that the Respondent denies the facts as an undue representation of the matter.
That Applicant accepts that equipment was delivered. Further that the two transactions out of which the suit arises were clearly spelt out in the agreements attached to the plaint. That therefore the matters raised by the Applicant are extreme as they are not borne out by the agreements and therefore cannot form the basis for allowing the Applicant leave to defend.
That the cheques referred to by Applicant were held by the Respondent as security for payment. They are dated 07.10.13 but when presented for payment on 04.02.14, they were returned on the ground that the Account was closed.
The Applicant under the agreement was to pay shs. 60 million in installments until completion of the debt but reneged on his promise and hence the suit.
Further that the Applicant’s application is an afterthought intended to defeat the cause of justice.
But that if court is inclined to grant Applicant leave, then it should be on condition that he deposits the amount due of shs. 60,000,000/- in court.
Applicant in rejoinder reiterated earlier submissions and prayers.
Upon hearing the submissions of both parties, court finds that the submissions of Counsel for the Respondent have to be sustained. The Applicant in this case admitted that he signed affidavit in his lawyers’ office and he did not know or see who the Commissioner of Oaths was. And it is not even clear from the stamp on the affidavit who the Commissioner of Oaths was.
The affidavit accordingly offends the provisions of SS.5 and 6 Commissioner for Oaths (Advocates) Act.
The signature of the Commissioner on the affidavit also appears to be super imposed and the Applicant admitted that he did not appear before the Commissioner of Oaths.
The supporting affidavit is accordingly not valid and it follows that there is no affidavit in support of the application and the application cannot stand on its own. - See Kakooza John Baptist vs. Electoral Commission and Another S.C. Election Petition Appeal No. 11/2007 and Muhammad Majyambere vs. Bhakresa Khahl HC MA 727/11
The application is accordingly struck out with costs to the Respondent.
I wish to observe that even if court had found the affidavit to be proper, this application would still have failed as the Applicant clearly admitted before court that he owes the money due to the Respondent but only needs to be given time within which to pay and to be allowed to pay in reasonable installments.
FLAVIA SENOGA ANGLIN