THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 270 OF 2012
MISCELLANEOUS APPLICATION NO. 230 OF 2012
(Arising from MISC. APPLICATION NO. 145 OF 2012)
(Arising from Civil Suit No. 222 of 2012)
UGANDA HEALTH MARKETING GROUP:::::::::::::::::::::::: APPLICANT
KATINVUMA BROADCASTING AND GENERAL LTD
T/A SIGNAL FM::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE HON. LADY JUSTICE HELLEN OBURA
This is a ruling in an application brought under Order 44 rules 2, 3 & 4 of the Civil Procedure Rules (CPR) and section 98 of the Civil Procedure Act (CPA) seeking for orders that the applicant be granted leave to appeal and the costs of the application be provided for.
The grounds of this application as contained in the affidavit of Mr. Patrick Kabagambe are firstly that the applicant applied for leave to defend Civil Suit No. 222 of 2012vide MA No. 145 of 2012. Secondly, that the applicant is aggrieved and dissatisfied with the decision of His Worship Kisakye Charles Tasika given at Mengo on the 27th day of March 2012 in MA 145 of 2012 (arising from Civil Suit No. 222 of 2012) and intends to appeal against the decision. Thirdly, that the applicant will suffer substantial loss if leave to appeal is not granted. Fourthly, that the application has been made without delay and lastly that it is in the interest of justice that this application is allowed.
The respondent filed an affidavit in reply and opposed the application on grounds, firstly, that it was fatally and incurably defective, misconceived and calculated to waste court’s time. Secondly, that the applicant had no defence to the suit and no triable issues in Civil Suit No. 222 of 2012. Thirdly, that the appeal had no chance of success and the application is improperly before the court. Lastly that it is in the interest of justice that the application is dismissed.
The background to this application as summarised by counsel for the applicant is that the respondent brought a summary suit in the Chief Magistrate’s Court of Mengo to recover some money from the respondent. The applicant filed an application for leave to appear and defend the suit on the ground that there was no contractual relationship between the applicant and the respondent and as such there was no legal claim against the applicant. The Chief Magistrate heard the application and dismissed it with costs on the ground that there was no triable issue. This was based on his finding that conduct between the applicant and ZK Advertising with whom the respondent had a contract showed that there was an agent-principal relationship between the applicant and ZK Advertising. He then entered judgment for the plaintiff.
The applicant applied for leave to appeal under Order 44 rule 2 of the CPR and the Chief Magistrate ruled that he did not find any ground of the intended appeal that would merit serious judicial consideration. He however allowed the application for leave to appeal on condition that the applicant deposited the sum decreed in the main suit.
Additional background as stated by counsel for the respondent is that the respondent is a radio station which ran advertisements for the applicant company through an advertising agent called ZK Advertising (U) Ltd. ZK Advertising as the agent of the applicant never paid the advertising fees to the respondent and nor did the applicant. There was an agreement between ZK Advertising and the respondent.
At the hearing of this application, Mr. Cephas Birungyi represented the applicant while Mr. Deus Nsengiyunve represented the respondent. It was submitted by counsel for the applicant that the affidavit in support talks about triable issues relating to agency relationship which the Chief Magistrate determined without hearing evidence thereby causing a miscarriage of justice. Counsel for the applicant referred to the case of Dr. Rubinga v Yakobo Kato & Another Civil Appeal DR. MF 1 /90 which alludes to a miscarriage of justice by such decisions.
He relied on the case of Alley Route Ltd v UDBL Misc. Application No. 634 of 2006 where Lameck Mukasa J. held that at this stage court should not prejudge what is for trial on appeal. He concluded that by denying leave to appeal on the ground that agency relationship had been established and therefore there was no merit of the intended appeal, the Chief Magistrate was going contrary to the principle established in the case of Alley Route Ltd (supra).
Counsel for the applicant argued that the order by the Chief Magistrate granting conditional leave to appeal upon deposit of the decretal amount was not based on any law and as such he was not possessed with the discretion to make that order. He argued that the law which provides for security for costs is Order 26 and this case was not about security for costs. Furthermore, that Order 36 provides for conditional leave to appear and defend but not at the stage of applying for leave to appeal.
In opposing the application, Mr. Nsengiyunve contended that leave to appear and defend was denied and judgment was entered for the respondent for reason that an agent–principal relationship existed thereby making the applicant liable to pay the respondent. He submitted that this application was vague for reason that the applicant was already granted leave to appeal against that decision on condition that it deposits the decretal sum in court.
He argued that the trial court had discretion and jurisdiction to make the order as derived from section 98 of the CPA. He further submitted that for an application for leave to appeal to succeed the applicant has to prove to court that there are substantial questions of law to be decided by the appellate court or that the decision against which he intends to appeal appears to have caused a miscarriage of justice.
He relied on the case of Matayo Okumu vs Fransisko Anudhe & 2 others  HCB 229 to support this argument and submitted that the affidavit in support did not raise a substantial question of law or allude to a miscarriage of justice.
Counsel for the respondent argued that the principle in the case of Alley Route (supra) which governs appeals from the High Court to the Court of Appeal does not apply to the instant case where leave is being sought to appeal against the Chief Magistrate’s decision. He submitted that the principle that governs this application is what is stated in the case of Matayo Okumu (supra).
It was also submitted for the respondent that the affidavit in support of this application is defective because it was neither dated nor sworn with authority. It was argued that these irregularities were fatal and so the application should be dismissed with costs as it was unsupported by evidence.
Mr. Birungyi in a brief rejoinder to the submissions in reply submitted that the principles in the case of Matayo Okumu (supra) apply only where the intended appeal is a second appeal to the High Court as provided for under section 220(3) of the Magistrates Court Act (MCA). It was his submission that this being a first appeal from the Chief Magistrates Court, the issue of substantial question of law and miscarriage of justice is not applicable. His position was that the principles that apply in applications of this nature are as stated inAlley Route Ltd (supra). I completely agree with that position.
In reply to the contention that the Chief Magistrate had power to give conditional leave to appeal under section 98 of the CPA, it was argued by Mr. Birungyi that section 98 of the CPR could not be used as an omnibus provision giving absolute power to grant conditional leave. He submitted that court must be mindful of the interest of justice for both parties.
As regards the affidavits in support, counsel conceded that it was unfortunate that the affidavit was not dated but argued that this was not fatal. Counsel prayed for unconditional leave to appeal to be granted to the applicant.
I have looked at the notice of motion and the supporting affidavit as well as the affidavit in reply. I have also carefully considered the submissions of both counsel and the authorities relied upon. Most importantly, I have addressed my mind to the provisions of Order 44 under which this application was brought as well as section 220 of the MCA that governs appeals from the Magistrates’ Court to the High Court as well as appeals to the Chief Magistrates’ Court.
Order 44 rule 1 (3) provides that an application for leave to appeal shall in the first place be made to the court making the order sought to be appealed from. Section 220 (4) of the MCA provides that an application for leave to appeal shall in the first instance be made to the Chief Magistrate within the period of thirty days beginning with the date of the decision sought to be appealed from, and an application to the High Court for that leave shall be made within a period of fourteen days beginning with the date on which the application is refused by the Chief Magistrate.
The import of section 220 (4) is that an application for leave to appeal can only be made to the High Court upon refusal by the Chief Magistrate to grant the same. It is not disputed that the Chief Magistrate granted the applicant conditional leave to appeal. This in my view does not amount to refusal to grant leave which is a precondition for application to the High Court. If at all the applicant was aggrieved by the condition for leave given by the Chief Magistrate, my well considered opinion is that an appeal against that part of the order as relates to the condition should have been made to this court instead of an application for leave.
I have noted the argument of counsel for the applicant challenging the Chief Magistrate’s power to grant conditional leave to appeal. But with due respect to counsel for the applicant, that argument could only be ably made in an appeal challenging that order. I am of the firm view that this court cannot determine the issue as to whether the Chief Magistrate had power to grant conditional leave to appeal in an application for leave to appeal like this one. It would be irregular.
I cannot fathom how this court can grant leave to appeal to the applicant when there is already an order by the Chief Magistrate granting the same though conditionally. To my mind this application is an abuse of the court process that would have the effect of creating confusion since there would be two subsisting court orders granting leave in respect of the same matter.
For the above reason, I agree with the respondent that this application is not competent. It is misconceived thereby making it fatally and incurably defective. I would therefore dismiss it with costs.
Due to the above finding and conclusion which in effect disposes of this application, I will not delve much into considering the arguments on the validity of the affidavit in support and the conditions for grant of leave to appeal. But suffice it to state that an undated affidavit offends section 6 of the Oaths Act, Cap. 19 which is in pari materia with section 5 of the Commissioner for Oaths (Advocates) Act, Cap. 5. Both sections provide that:-
“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Actshall state truly in the jurat or attestation at what place andon what date the oath or affidavit is taken or made”.(Emphasis added).
The above provision is couched in mandatory terms and therefore it must be complied with. The commissioner of oaths before whom any affidavit is made must indeed state on what date the affidavit is made. Failure to do so like in this case makes the affidavit a nullity and that leaves the application unsupported by affidavit evidence.
However, I must observe that, as I stated in the case of Soroti Municipal Council v Pal Agencies Ltd Misc. Application No.181 of 2012 arising from Civil Suit No. 221 of 2008,the effect of declaring an affidavit a nullity on an application would, in my view, largely depend on whether that application raises a question of law that do not require evidence by affidavit or a question of fact which must be supported by affidavit evidence.
This view is based on Order 52 rule 3 which provides for contents of notice of motion and Order 19 rule 3 that provides for matters to which affidavits may be confined as well as the case of Kaingana v Dabo Boubou  HCB 59 which implies that some applications may not be grounded on evidence by affidavit.
Be that as it may, I will not consider the effect of lack of a supporting affidavit for this application which I have already found to be incompetent because it was made when leave to appeal had not been refused by the Chief Magistrate. In the circumstances, this application is dismissed with costs to the respondent.
I so order.
Dated this 7th day of November 2012.
Delivered in chambers at 3.00 pm in the presence of Ms. Belinda Nakiganda who was holding brief for Mr. Cephas Birungyi for the applicant and Mr. Deus Nsengiyunve for the respondent whose Managing Director Mr. Gamal Kintu was also present.