THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 428 OF 2012

(ARISING FROM CIVIL SUIT NO 254 OF 2012)

SEMBULE STEEL MILLS LIMITED} ....................................................APPLICANT

VERSUS

EURO METAL SERVICE}............................................................... RESPONDENT

BEFORE HONE JUSTICE CHRISTOPHER MADRAMA

RULING

The applicant's application is for unconditional leave to appear and defend the main suit namely High Court civil suit number 254 of 2012 by application filed under order 36 rule 4, order 52 rules 1 and 3 of the Civil Procedure Rules and section 98 of the Civil Procedure Act. It is also for an order that costs are provided for.

The grounds of the application are that the applicant made various payments to the respondent which the respondent failed to account for and had declined to issue receipts for. Secondly that the amounts claimed in the suit are wrong. Thirdly that there is need for reconciliation of accounts to ascertain what is rightly due and fourthly that the applicant has a good defence to the suit. The affidavit in support of the application is sworn by Ronald Kizito, a director in the applicant company. He avers from advice of his lawyers that the suit is fatally defective and offends the rules of procedure regarding specially endorsed plaints. The deponent avers that the applicant does not deny having dealt with the respondent but contests the sums claimed in the plaint as not being due and outstanding. Primarily the applicant seeks a reconciliation of accounts to avoid the risk of paying monies that are not due and outstanding.

The affidavit in opposition to the application is sworn to by one Elly Mukasa. At the hearing of the application the applicant was represented by Nsimbe Musa while the respondent was represented by James Mukasa Sebugenyi assisted by Alice Nalwoga. At the hearing of the application, the applicants counsel objected to the affidavit filed in opposition to the application while the respondents counsel also objected to the application on the ground that it had been filed out of time. I will first consider the preliminary points of law before dealing with the application if they did not resolve the application.

Counsel for the applicant contended that the affidavit in reply was sworn to by a deponent who had no authority to make an affidavit on behalf of the respondent. Consequently he maintained that the affidavit in reply was incompetent and ought to be struck out. Counsel contended that the suit is between the respondent as the plaintiff and the applicant as the defendant. However the affidavit in question is that of the director operations of Global Debt Management, a credit management agency instructed by the plaintiff to recover the suit debt. He contended that under order 3 rule 1 of the Civil Procedure Rules, the deponent of the affidavit was not a recognised agent because he does not hold powers of attorney. Counsel supported his contention with the case of Mugoya Construction and Engineering Ltd versus Central Electricals International Ltd miscellaneous application number 699 of 2011 arising from civil suit number 203 of 2009. He contended that the case was authority for the proposition that a deponent of an affidavit in support of an application should be the party itself or an authorised agent within the meaning of order 3 rules 1 and 2 of the Civil Procedure Rules. Particularly he was of the view that powers of attorney authorising the deponent to make the affidavit on behalf of the party should be attached.

In response learned counsel James Mukasa Sebugenyi relied on order 36 rule 2 (b) of the Civil Procedure Rules. He contended that the rule allowed any person with knowledge of the relevant facts to swear to an affidavit on the facts. The rule provides that the affidavit in support of a summary plaint may be made by the plaintiff or by any other person who can attest positively to the facts, verifying the cause of action, the amount claimed if any and stating that in his or her belief there is no defence to the suit.

I have carefully considered the objection which is of a preliminary nature and I agree with learned counsel for the respondent. The case of Mugoya Construction and Engineering Ltd (supra) dealt with different facts and circumstances. In that case the advocate purported to make an affidavit in support of the application as a party to the action and not as an advocate having conduct of the matter. There is a clear distinction between a party who appears as a party through an authorised agent and an advocate. Notwithstanding the above, there is no bar or impediment stopping a party to an application to solicit for affidavits from persons having knowledge of the facts in support or opposition of the matter in the application. Such a person is a witness and can only be barred on the ground that his or her testimony is inadmissible evidence or on some other lawful bar to any particular averment under the rules of evidence.

Order 19 rule 3 of the Civil Procedure Rules provides for matters to which affidavits shall be confined. The limitation is that affidavits shall be confined to such facts as the deponent is of his or her own knowledge able to prove except that in a statement made in support or opposition to interlocutory applications, statements of belief may be admitted and provided the grounds thereof are stated. Any matter may by order of court for sufficient reason be proved by affidavit under order 19 rules 1 of the Civil Procedure Rules. However in cases of interlocutory applications, the trial of the action is by assessment of the affidavit evidence. Replies to interlocutory applications are made through affidavits according to the prevailing practice in the courts. Under order 12 rule 3 (2) of the Civil Procedure Rules, replies to an application are given time lines. The reply of the respondent is normally embodied in an affidavit in reply. The rules do not restrict the categories of parties or witnesses who may file affidavits in opposition to any application save for restrictions imposed by order 19 rules 3 of the Civil Procedure Rules and questions of legal capacity to make a statement on oath. Under the rules a summary of facts are given by the respondent indicating what it is going to present in opposition to the application. That is part of the pleadings as directed by order 5 rules 2 and orders 6 rules 2 of the Civil Procedure Rules. Order 6 rules 2 provides that every pleading shall be accompanied by a brief summary of evidence to be adduced, a list of witnesses, a list of documents and a list of authorities to be relied on, this is signed by counsel. These provisions are also applicable to interlocutory applications. In other words apart from the affidavit for or against an application, the parties may in the summary of the case make a pleading about the grounds of defence. In the premises, the respondent is entitled to file an affidavit in reply through a person having knowledge of the relevant facts and materials it wants to rely upon to oppose the application. The applicant’s objection to the respondent’s affidavit in reply has no merit and is overruled.

The second preliminary point was raised by the respondents counsel and is to the effect that the applicant's application was filed out of time. He submitted that the affidavit of service shows that summons was served and received by the defendant on 10 July 2012. The application was filed on 24 July 2012. The application ought to have been filed within 10 days. The application was filed after 14 days and therefore out of time. Learned counsel for the Applicant contended that the summons served on the applicant was blank because it had no suit number so it was difficult to determine which suit the applicant was responding to. He concluded that summons served on the defendant were defective. Furthermore the signature of the person who acknowledged service was unknown to counsel and there is a date which is not clear. It reads 10.7. Consequently he contended that service was not done effectively on the applicant based on the affidavit of service. The applicant found out about the suit only from the court registry.

The evidence on record shows that summonses were issued on 28 June 2012. Subsequently the plaintiff through Oyana Richard in an affidavit sworn on 25 September 2012 avers that he received the summons on 10 July 2012. On the same day he proceeded to the defendant's premises and on reaching the premises, he found the secretary to whom he introduced himself and tendered copies of the summons and plaint for acknowledgement. The secretary forwarded copies of the summons and plaint to the company director who acknowledged service by signing on the copy of the summons. The acknowledgement shows that it was signed on 10 July though the year is not stated. However, the affidavit of service has not been contradicted by any counter evidence. Pursuant to the service the applicant filed the application on 24 July 2012. The submissions of the applicants counsel to the effect that the summons were not numbered and therefore the applicant established that the suit had been filed from the registry has no evidential basis and is a submission from the bar. The affidavit of service attaches annexure "A" duly authenticated by the Commissioner for oaths. Annexure “A” is a copy of the summons and shows that it is summons in civil suit number 254 of 2012. Even if the applicants counsel was right that the civil suit did not have a number, it had the parties and the registry staff would be able to locate the file based on the date of filing and the names of the parties.

The summons provided that should the defendant omit to file an application for leave to appear and defend within 10 days from the date of service of the summons on him/her/it, the plaintiff would be entitled to obtain a decree for the amount claimed in the plaint. Summonses are an order of the court. The remedy of the applicant would have been to apply for enlargement of time under section 96 of the Civil Procedure Act to file the application outside the 10 days ordered by the court in the summons. This has not been done. In the premises the applicant’s application was filed outside the 10 days indicated in the summons and the plaintiff is accordingly entitled to judgement. Order 36 rule 3 (2) of the Civil Procedure Rules provides that:

"In default of the application by the defendant or by any of the defendants (if more than one) within the period fixed by the summons served upon him or her, the plaintiff shall be entitled to a decree for an amount not exceeding the sum claimed in the plaint, together with interest, if any, or for the recovery of the land (with or without mesne profits), as the case may be, and costs against the defendant or such of the defendants as have failed to apply for leave to appear and defend the suit."

The rule is explicit that the defendant or any of the defendants should apply for leave to defend within the period fixed by the summons. The period fixed by the summons was 10 days from the time of service of the summons. In terms of the rules, the plaintiff is entitled to a decree for an amount not exceeding the sum claimed in the plaint together with interest if any. The applicant’s Application is incompetent and is truck out with costs having being brought outside the time directed in the summons.

In the premises judgement is entered for the plaintiff in the sum claimed in the plaint together with the interest claimed in the plaint with costs.

Ruling delivered in open court on 9 November 2012.

Hon. Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Nalwoga Alice for the respondent

Kagimu a representative of Applicant in Court

Catherine Sheila Abamu, Research Assistant

Hon. Christopher Madrama Izama

Judge