THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL COURT)

MISCELLANEOUS APPLICATION NO.181 OF 2012

(Arising from Miscellaneous Application No.326 of 2009)

(Arising from Civil Suit No. 221 of 2008)

SOROTI MUNICIPAL COUNCIL::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

PAL AGENCIES (U    LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE THE HON. LADY JUSTICE HELLEN OBURA

RULING

This is a ruling in application brought by notice of motion under Order 41 rules 4 and 9 of the Civil Procedure Rules (CPR). The applicant is seeking for orders that the interim order granted to the respondent in Misc. Application No. 326 of 2009 be set aside and the costs of this application be in the cause.

The application is supported by an affidavit sworn by Mr. Richard K. Monday in his capacity as the Town Clerk of the applicant. He deposed that he was reliably informed by the applicant’s lawyer that the main application; Misc. Application No. 325 of 2009 had never been fixed for hearing and the applicant had not been served with that application to date. Furthermore that the applicant was no longer a party to that application and civil suit No. 221 of 2008 from which it arises. He averred that by setting aside the interim order the respondent shall not suffer any irreparable damage and yet maintaining it shall cause the applicant to continue suffering prejudice, injustice and untold financial loss because they are not collecting any revenue from the bus/taxi park. According to him, it is just and fair that the application be allowed.

An affidavit in reply and opposition to this application was sworn by Mr. Chemisto Shuaib Kubai, an advocate with Omongole & Co. Advocates. He deposed that the respondent filed Misc. Application No. 326 of 2009 for an interim order to stop the applicant from undertaking prequalification, registration and tender of management of revenue in the bus/taxi park in Soroti Municipality till the disposal of Misc. Application No. 325 of 2009 and Civil Suit No. 221 of 2008 and the court granted that order. Furthermore, that if the interim order is set aside and the applicant goes ahead to invite bids for management of the bus/taxi park and grant it, it will jeopardize Civil Suit No. 221 of 2008 and defeat the interest of the respondent.

He averred that the interim order whose basis was to maintain the status quo till the resolution of the main suit and Misc. Application No. 325 did not stop the applicant from collecting revenue from the bus/taxi park and the applicant has been doing so. Furthermore, that there is no injury that has been demonstrated as occasioned to the applicant to warrant vacation of the interim order. He deposed that, in the alternative, if the interim order is to be vacated, the applicant should pay costs to the respondent. He stated in paragraph 10 of the affidavit that at the hearing of this application the respondent would raise a preliminary objection that the lawyers who drafted the application did not have instructions.

An affidavit in rejoinder was sworn by Mr. Richard K. Monday. He averred that the affidavit in reply is marred with falsehood and largely repeated what he had stated in the affidavit in support.

When this matter came up for hearing, the applicant was represented by Mr. Peter Masaba and the respondent by Mr. Richard Omongole. Counsel for the respondent intimated that he would raise some preliminary points of law which this court advised him to do in his reply to the applicant’s submission. Both counsel agreed to file written submissions which they did. Counsel for the respondent in his submission raised four preliminary points of law for consideration of this court namely that;

1. The affidavit supporting this application was drafted by M/S Osilo & Co. Advocates and also commissioned by Ms. Akware Caroline Osilo a partner in that firm thereby making it an illegality.
2. The notice of motion was not supported by an affidavit and as such a nullity.
3. The affidavit in rejoinder that was filed and served on the respondent was not signed by the deponent hence a nullity that cannot be relied on in court.
4. The lawyers who drafted the application did not have proper instructions as they were not properly procured under the Public Procurement and Disposal of Assets Act and as such the documents drafted are a nullity.

Before I consider the submissions on the preliminary objection, I feel it is important for me to give the background of this application as gathered from the pleadings and the documents on record. I will then make some general observations which in my view would even dispose of this application.

On 27^th June 2008, the respondent was asked by the applicant, Soroti Municipal Council to continue collecting revenue from the Bus/Taxi park until final decision would be taken by the Administrative Review Committee that was set  up to handle the complaint that had been made concerning the award of tenders. It was specifically stated in the letter from Soroti Municipal Council that this arrangement was on a temporal basis for the purpose of continuity. This was done against the background that the respondent was the one who had the contract to collect revenue the previous financial year.

Shortly thereafter, Teso Coaches Ltd started operating its own park and this led to some dispute which culminated into some motorists not paying revenue to the respondent. On 22^nd August 2008, the respondent (defendant) sued Teso Coaches Ltd and its proprietor Mr. Etilu Faustine for among other things, breach of contract, loss of revenue in excess of Shs. 116,160,000/= and an injunction restraining the defendant from doing any acts or making any statements or taking any steps calculated or intended to cause or induce Gateway buses and other taxi operators or any of them to commit breaches of their contracts with the plaintiff by nonpayment of park fees. The defendant filed a written statement of defence in which the claim was denied.

Upon an application, the applicant Soroti Municipal Council was allowed to join the suit as the 2^nd plaintiff and an amended plaint was accordingly filed on 4^th February 2009. The respondent thereafter filed eight applications at different times. On 23^rd March 2009, the respondent filed two applications namely; Misc. Application No. 146 of 2009 for an injunction to issue against the applicant restraining it from terminating the contract between the respondent and the applicant and Misc. Application No. 147 of 2009 for an interim order (ex parte) maintaining the status quo pending the hearing of the main application No. 146 of 2009. When Misc. Application No. 147 of 2009 came up for hearing before the Deputy Registrar on 23^rd March 2009, she observed that there was need to hear the matter inter-parties. She then issued what she called an interlocutory order maintaining the status quo till 27^th March 2009 when the application would be heard inter-parties.

When the application came up on the adjourned date for hearing, counsel for the 2^nd plaintiff informed court that his client was withdrawing from the matter and a withdrawal had already been filed. Counsel for the applicant objected to the withdrawal on the ground that it was a nullity because it was done without leave of court. The Deputy Registrar upon hearing the objection adjourned the matter for ruling on notice as soon as could be and stated that the interlocutory order would continue in place pending the disposal of that issue and the application.

On 12^th October 2009, the Deputy Registrar wrote on the file as follows:-

“The matter was due for ruling on notice; however the ruling has been overtaken by the event of the completion of the main application 146/2009. Let the file be shelved away as completed”.

Earlier on 9^th July 2009 when Misc. Application No. 146 of 2009 had come up for hearing, counsel for the applicant applied to withdraw the application and it was allowed by the trial judge with no order as to costs. Both applications were disposed of in the above manner and it followed that the interlocutory order that was issued to maintain the status quo pending disposal of the main application automatically lapsed with the disposal.

Meanwhile on 11^th June 2009, the respondent had also filed two applications namely; Misc. Application No. 325 of 2009 for a temporary injunction restraining the applicant from undertaking prequalification, registration and tender of management of the bus/taxi park and Misc. Application No. 326 of 2009 for an interim injunction pending the disposal of Misc. Application No. 325 of 2009. Misc. Application No. 326 of 2009 was heard ex parte and granted on the same day pending the disposal of the main application, i.e. Misc. Application No. 325 of 2009 which court record shows was never fixed for hearing at all and on 9^th July 2009 it was indicated on the file cover as “overtaken by events”.

I wish to observe that according to the hand written record of proceedings in Misc. Application No. 326 of 2009, the Deputy Registrar of this court upon hearing the submission of counsel for the applicant and the prayer that an interim order doth issue restraining Soroti Municipal Council from further tendering processes till the disposal of Misc. Application No. 325 of 2009, made the following ruling:-

“There was another matter pending ruling on the preliminary objection hence the interlocutory order. Now the situation has worsened and the dispute has widened.

I am therefore constrained to issue an interim order restraining the respondent’s further actions in any way as regards the bus park pending the disposal of Misc. Application No. 325 of 2009; in order to maintain the status quo to enable disposal of the main application on its merit” (emphasis added).

However, the order that was extracted by counsel for the applicant in that application gave the impression that it was issued pending the disposal of Misc. Application No. 325 of 2009 and Civil Suit No. 221 of 2008. Unfortunately, the Deputy Registrar also just signed the order without ensuring that it was in line with her ruling. I believe it was for that reason that the respondent never bothered to fix the main application for hearing and it was subsequently said to have been “overtaken by events” which was not even named.

Given the above correct version of the interim order that is sought to be set aside by this application, could it be argued that it is still subsisting? Both counsels believe that it is still subsisting. In fact counsel for the respondent even filed M/A No. 459 of 2009 on 11^th August 2009 for an order of arrest of the officials of the applicant for disobeying the interim orders. With greatest respect to both counsels, I am of the firm view that the order lapsed on 9^th July 2009 when the main application that guaranteed its life span was said to have been overtaken by the unnamed events and the file closed. In the circumstances there is no interim order that this court can set aside. This would dispose of this application but let me also widen the discussion further by considering the purpose of an interim order.

In Hon. Anifa Bangirana Kawooya v Attorney General & Another Misc. Applic. No. 46 of 2010 [2010] UGCC 8, Arach-Amoko, JA observed that; “an interim injunction is a discretionary order issued by court for a short time, and usually to a particular date pending the determination of the main application” (emphasis added).

In Hussein Badda v Iganga District Land Board and Others Misc. Applic. No. 479 of 2011 Zehurikize, J decried the common practice where parties file an application for judicial review together with an application for temporary injunction arising from it, which in turn carries another application for interim order to be heard and granted ex-parte. He observed that in quite a number of cases the respondent gets to know that there is a suit against him or her when served with summons for an application for disobedience of the interim order. In majority of cases the respondents are confronted with interim orders before they are aware of any case against them.

I entirely agree with this very accurate analysis of this common practice by my learned senior brother judge. I would only add that the practice is not only common in judicial review applications but is very notorious even where civil suits are filed. I have already herein above alluded to the fact that in the main suit from which this application arises the respondent filed eight different applications some of which I have highlighted. When the Deputy Registrar issued an interim order to preserve the status quo pending hearing of the main application, counsel used his ingenuity to draft the order so as to extend its life span till the disposal of the main suit.  The main application was then abandoned because counsel did not see the need to fix it for hearing since his client had already achieved its objective.

In Hussein Badda (supra), the learned judge gave the history of interim orders. He referred to the provisions of the previous Order 37 rule 3 of the CPR which created room for applications for interim orders on grounds that any delay would defeat the purpose for which an application for a temporary injunction was made. He however, observed that the process of interim orders was abused so much that it caused a lot of public concerns. Consequently, the Rules Committee intervened by amending the CPR in Order 37 by substituting rule 3 so as to remove the part that gave room for applications for interim orders. He stated that the amendment in effect abolished applications for interim orders but the court now only invokes its inherent power to issue the same in serious and deserving cases for the ends of justice.

I must point out here, as the learned judge also did in Hussein Badda (supra) that interim orders are still being greatly abused and it is a point of concern. That is why recently this subject dominated discussions at the meeting of the High Court judges.

The learned judge in Hussein Badda (supra) also made a very pertinent observation on a point of law which has always been overlooked when dealing with applications for interim orders and temporary injunctions. He stated that in most cases these applications are not even properly before court. Furthermore that an application is valid only when it has been signed by the judge or such officer as he or she appoints and it is sealed with the seal of the court within the meaning of Order 5 rule 1 (5) of the Civil Procedure Rules. He referred to Nakito Brothers Ltd v Katumba [1983] HCB 70.

He pointed out at page 12 of his ruling that:-

“An application is by its nature a summons issued by court requiring the respondent to attend court on the appointed date and time. It becomes valid only when it has been given a date, signed and sealed. It is after the above has been done by the court that the application is capable of validity giving rise to another application”.

Going by the above position which I am completely persuaded with, it follows that Misc. Application No. 325 of 2009 which gave rise to Misc. Application No. 326 of 2009 was not valid because it was never given a date, signed and sealed as required. Consequently, Misc. Application No. 326 of 2009 under which the interim order sought to be reviewed was issued was also not valid and therefore the order was a nullity. For that reason, I also find that there is no order to set aside as prayed in this application.

When this application came up for hearing, counsel for the respondent put up a spirited argument to prevent this court from hearing it on merit so as to protect a non-existing order. I find this a classical case of an abuse of the court process by a party who rushes to court and obtains an interim order ex parte then waves it on the other party’s face as though it has an endless life span. It is sad to note that Soroti Municipal Council has been bogged down by a non- existent court order such that for almost five financial years it could not prequalify and go through the tendering process for its Bus/Taxi Park as by law required.

The court record shows that on 22^nd February 2010 when the parties appeared before court in the main suit, Mr. Omongole for the plaintiff (current respondent) complained on behalf of his client that the injunction had been overtaken by events. If indeed he and his client knew that the injunction had been overtaken by events then why did they continue clinging onto an order that was serving no purpose?

Counsel for the respondent needs to be reminded that as an officer of court, his duty to court overrides his duty to his client. According to Steve Mark;

“Legal practitioners must not only obey the law but must also ensure the efficient and proper administration of justice….…..The duty to court stipulates that as officers of the Court, legal practitioners must act in a certain way. Legal practitioners must not mislead court and must act with competence, honesty and courtesy towards other solicitors, parties and witnesses. The duty to the Court also provides that legal practitioners are independent (free from personal bias), frank in their responses and disclosures to court and diligent in their observation of undertakings given to the Court or their opponents[1].”

It was stated in paragraph 7 of the affidavit in reply to this application which was drawn and filed by the firm representing the respondent that the interim order is to maintain the status quo until the resolution of the main suit and Misc. Application No. 325 of 2009.  That averment creates the impression that Misc. Application No. 325 of 2009 is still pending hearing three years after it was filed. I have already stated above that that application was over taken by events and the file closed. However, even if for argument’s sake we assume that it is still pending hearing would it really be for the purpose of promoting justice?

Order 12 rule 3 regulates how interlocutory applications should be handled by providing timelines. Sub-rule 2 of Order 12 rule 3 provides that service of interlocutory application to the opposite party shall be made within fifteen days from the filing of the application and a reply to the application by the opposite party shall be filed within fifteen days from the date of service of the application and served within fifteen days from the date of filing the reply. Sub-rule 3 provides that an interlocutory application shall be fixed for hearing within twenty-one days from the date of service of the reply on the applicant. Sub-rule 4 provides that all interlocutory applications shall be heard and finalized within forty five days from the date fixed for the hearing of the application unless the court for sufficient reason extends the time.

Clearly, from the above timelines Misc. Application No. 325 of 2009 could not have been in the system pending fixing, service and hearing for the last three years. It would have by now been dismissed for failure to comply with the above rules.

With the above general observations and conclusions, I find that there is really no need to consider the preliminary points of law raised by counsel for the applicant since the interim order sought to be set aside is non-existent for the two reasons stated above. However, I will mention in passing as I do here below as follows:

First of all, while I agree with counsel for the respondent that the affidavit in support of this application was irregularly commissioned by counsel who had conduct of the matter contrary to the provisions of section 4 (1) of the Commissioner for Oaths (Advocates) Act, Cap. 5, I am convinced that the application cannot be said to be a nullity without a supporting affidavit because it raises a question of law that does not require evidence by affidavit.

Order 52 rule 3 which provides for contents of notice of motion states that:-

“Every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion” (emphasis added).

Order 19 rule 3 that provides for matters to which affidavits may be confined states in sub-rule (1) that:-

“Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated” (emphasis added).

My understanding of the above provisions of the law on notice of motion and affidavits is that not all applications must be supported by affidavit. Applications that are on points of law may not necessarily be supported by affidavits since affidavits are confined to matters of facts. This view is fortified by the decision in Kaingana v Dabo Boubou [1986] HCB 59 it was held that:-

“Where an application is grounded on evidence by affidavit, a copy of that affidavit intended to be used must be served with the action. In such a case, the affidavit becomes a part of the application. The Notice of Motion cannot on its own be a complete application without the affidavit. Therefore in the instant case the Notice of Motion alone was not enough”(emphasis added).

I have carefully looked at the grounds stated in the notice of motion. The first ground stated in the notice of motion is that the interim order has no time limit and it has prevented the applicant or their representative from undertaking prequalification and tender management of revenue in the bus/taxi park till disposal of Misc. Application No. 325 and Civil Suit No. 221 of 2008. I am of the considered view that the issue of an interim order having no time limit is a question of law that does not require evidence by affidavit to support it. For that reason, I believe this application cannot be treated as a nullity. In my view, it is only that aspect of it that requires evidence by affidavit to prove that can be dispensed with and the question of law addressed as I have already done above in my general observations. In the premises, this finding and conclusion would dispose of all the objections on the affidavits and the fate of the application which I would decline to treat as a nullity and dismiss as requested.

Finally, it was contended that counsel for the applicant who drafted and filed this application did not have proper instructions as they were not properly procured under the Public Procurement and Disposal of Assets Act and as such the documents drafted are a nullity. In response a copy of the contract between Soroti Municipal Council and the Law Firm that filed this application was produced in court to prove that they had instructions. Counsel for the respondent however, wants this court to still inquire into the process of making that contract by looking at the council resolution and all the documents forming the contract.

With due respect to counsel, I do not at all agree with that approach. The same law firm was on record as representing the applicant the previous financial year. As rightly observed by my learned brother Musota, J in Bukedea Town Council v Bukedea Sub- County Council and Another Misc. Application No. 21 of 2008, the argument that approval of legal counsel is based on a financial year should not apply to cases being handled by an approved firm and have not been concluded during a financial year. This would indeed result in instability in management of cases that are in advanced stages but have not been concluded for no fault of the advocates concerned.

I also wish to take judicial notice of the fact that the same law firm that is being challenged for having no proper instructions is representing the applicant in another suit before me that arose from the same transaction which was filed by the respondent. Counsel for the respondent has never raised any issue concerning their instruction which I believe is based on the same contract. I am therefore convinced that this ground of objection was raised in this application as one of the respondent’s strategy to block this court from hearing it lest the truth be discovered as I have done above.

For the above reason, I do not find any merit on this ground of preliminary objection. I would also reject it. In the result, all the four grounds of the preliminary objection would fail and I would consider this application on its merit if at all the interim order existed.

However, since I have already found and ruled that the interim order does not exist, this application is dismissed with no order as to costs because the respondent’s conduct of holding out that it had a valid court order gave rise to this application.

I so order.

Dated this 24^th day of August 2012.

Hellen Obura

JUDGE