THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 699 OF 2011

(ARISING FROM CIVIL SUIT NO 203 OF 2009)

MUGOYA CONSTRUCTION AND ENGINEERING LTD).…  APPLICANT/DEFENDANT

VERSUS

CENTRAL ELECTRICALS INTERNATIONAL LIMITED)…..  RESPONDENT/PLAINTIFF

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA

RULING

The Applicant filed this application by chamber summons under Order 6 rules 19 and 31 of the CPR, for orders that leave is granted to the applicant to amend its written statement of defence and costs of the application are provided for.  The application is supported by the affidavit of Ivan Kyateka.

The applicant seeks to amend paragraphs 3, 4, 5 and 6 of the written statement of defence.

In the affidavit in support of the application, it is deposed that the Applicant was served with summons to file a defence by way of substituted service and was therefore pressed for time within which to fully investigate the claim and file a comprehensive written statement of defence. That the Applicant had since the filing of the defence, obtained new information that has a bearing on the issues for resolution before the court. Furthermore, that the respondent will not suffer any injustice or irreparable harm by the proposed amendment and that the applicant will suffer irreparable harm if the amendment is not granted.

The Respondent opposed the application and in the affidavit in reply sworn by Kembabazi Annette, the Respondent deposes that the amendmentssought are prejudicial to the Respondent’s case and are a total departure from the written statement of defence on record. Furthermore, that the amendments sought have the effect of altering the entire written statement of defence which shall irregularly allow the defendant to put in a new defence outside the time allowed by law. Furthermore, that the proposed amended written statement of defence contains deliberate falsehoods and the court ought not to sanction such conduct by the Applicant. The Respondent also deposed that the proposed amended written statement of defence is evidence of dilatory conduct by the Applicant who is buying time to increase the respondent’s loss and that the summons were served on the Defendant/Applicant by substituted service, and the Applicant being conversant with the facts instructed his advocate to file a written statement of defence.

At the hearing the Applicant was represented by Oine Ronald of Messrs Tumusiime Kabega and Co. Advocates while the Respondent was represented by Simon Tendo Kabenge of Messrs Simon Tendo Kabenge Advocates. When the matter came for hearing court directed that the parties put in written submissions.

I have taken into account the written submissions of both counsels, the pleadings of both parties and the authorities cited. The Respondents counsel raised some preliminary matters on the competence of the Applicant’s application.

As far as these preliminary matters are concerned, learned counsel submitted that the Applicant was guilty of plagiarism of the judgment of her lordship Lady Justice Irene Mulyagonja Kakooza.  I wondered at this submissions and I am at a loss as to what remedy learned counsel seeks from this court with regard to the alleged plagiarism. Moreover a judicial precedent may be quoted and it is not indicated whether the rights of any law reporting agency has been infringed. No remedy is sought and there is no need for this court to decide any matter on the basis of this submission. 

The second attack to the application is that the affidavit of Ivan Kyateka is full of falsehoods and blatant lies.  The question of whether the affidavit has falsehoods is inferred from the facts and circumstances of the case.  Before I delve into that, learned counsel has as a basis of the objection the affidavit of Kembabazi Annette, a lawyer by profession practising with the Respondent Counsel’s advocates in opposition to the application. Her averments are contained in paragraphs 2 and 6 of the said affidavit in reply.  The basis for the conclusion that the affidavit is full of falsehoods is not given in this affidavit though the affidavit can be read for what it is worth.  I have critically examined the said affidavit. Counsel Ivan Kyateka makes his affidavits as a duly authorized agent of the Applicant authorised to make the affidavits in that capacity. The major ground of concern is the averment that new information has emerged with a direct bearing on the resolution of all the issues before this Court. This new information is not specified in the said affidavit of Ivan Kyateka but can be obtained from the proposed amended written statement of defence attached as annexure “A” to the affidavit.  Before resolution of this issue it would be necessary to set out the claim of the Plaintiff against the Defendant and the defence thereof plus the proposed amendment in order to establish the alleged new information within the context of the suit.

The plaint pleads that the plaintiffs claim against the Defendant is for USD 80,000 and Uganda shillings 46,000,000/= for money due and owing, general damages for breach of contract, interests and costs. The facts pleaded are that the Defendant contracted the plaintiff to carry out electrical works at Shoprite Supermarket Entebbe road, Butyaba Military Training School Masindi, the Kyabazinga Palace in Iganga District, Uganda National Examination Board Offices at Kampala and Civil Aviation Offices at Entebbe. The Plaintiff did the electrical works to the satisfaction of the Defendant.  The Defendant did not pay the plaintiff for the works done.  The Plaintiff requested the Defendant to pay but the Defendants did not oblige with payment despite admitting that the money was due and owing.

In defence to the above action the Defendant’s written statement of defence paragraph 3 thereof avers that the suit is brought against a wrong party and discloses no cause of action.  Alternatively the Defendant avers that it has never contracted the Plaintiff to carry out any electrical works on all the 5 sites mentioned above. In the further alternative the Defendant avers that if the Plaintiff was ever contracted, it was paid all the sums due.

On the 21st of April 2011 when the suit was first mentioned, Counsel for the Defendant informed Court that he intended to apply for the amendment of the written statement of defence. The court advised the Defendant to send the proposed amendment to the Plaintiff’s counsel for possible consent.  It is only after failure to agree on the proposed amendment that a formal application should be filed.  Thereafter and by consent of both counsels the file was sent back for possible resolution of the dispute through mediation.

In a letter dated 10^th of June, 2011 Counsels for the Defendant forwarded the proposed amended written statement of defence to the Plaintiffs for consent and file a copy on the court record on the 15^th of June, 2011.  I have carefully perused the intended amendment to the written statement of defence. In paragraph 3 thereof the Defendant proposes an amendment that the suit is bad in law. In the WSD on record the Defendant averred that the suit had been brought against a wrong party and discloses no cause of action. In essence the question of whether the suit was brought against the proper party and the question of whether the suit was bad in law are essentially the same in substance.

In paragraph 4 of the proposed written statement of defence the proposed amended defence adds the words the suit is “frivolous and vexatious”.  This is an addition to the averment that the plaint discloses no cause of action against the defendant.  In essence, in addition to the words the suit disclosing “no cause of action” the defendant merely adds that the suit is “frivolous and vexatious”.  There is not much qualitative or substantial difference made by the addition to the proposed objection in the WSD for failure to disclose a cause of action. In both instances the court peruses the pleadings to establish whether the plaint discloses a cause of action under order 7 rules 11 or a reasonable cause of action or the suit may be shown by the pleadings to be frivolous and vexatious under order 6 rule 30 of the Civil Procedure Rules.

 Additionally the proposed amended written statement of defence in paragraph 6 thereof contains facts giving rise to the cause of action but the Defendant materially states that it is not indebted to the Plaintiff as indicated.  Paragraphs 6 (a) to (e) deal specifically with each of the five works that the Plaintiff is alleged to have executed on behalf of the Defendant.

The proposed amendment is that the Defendant is not indebted to the Plaintiff in respect to the electrical works on Shoprite Supermarket Entebbe road as alleged.  Even this does not materially alter the previous averments in the written statement of defence.  As far as the palace works is concerned, the Defendant introduces a new fact that Uganda shillings 41,629,250/= was paid to the Plaintiff by Stanbic bank cheque number 7015 dated 18^th of April 2006 as an advance of 10%, but the Plaintiff did not execute any works or supply any materials on the site.  Thirdly the Defendant introduces yet another fact that the Plaintiff agreed with the Defendant for the electrical material supplied to the Plaintiff for the Butyaba Military Training School at Masindi to be offset against the advance payments relating to the palace project. Fourthly the Defendant avers that it paid the plaintiff retention money of Uganda shillings 5,625,000/= by  a Stanbic bank cheque number 6477 dated 23rd of June 2005 for electrical works at Uganda National Examination Board offices Kampala.  Last but not least the Defendant avers that it paid the Plaintiff retention money of Uganda shillings 12,394,187/= in a Stanbic bank cheque number 6812 dated 9th of January 2008 for Electric Works on the Civil Aviation Authority Offices Entebbe.

The material question is whether this information could be new information to the Defendant given the fact that as the allegation shows, it is the Defendant who agreed with the plaintiff and secondly it is the Defendant who is said to have paid the monies averred in the proposed amendment.  Thirdly the payments were made several years before the suit was filed. All the information averred in the proposed amendment cannot be new information to the Defendant that has just emerged as averred in the affidavit of Ivan Kyateka.  Paragraphs 3 and 4 of the affidavit of Ivan Kyateka are set out for emphasis:

“3.      That the applicant/defendant was served with a copy of the summons to file a defence by substituted service and as such was pressed for time within which to fully investigate the claim and file a comprehensive written statement of defence

4.        That since the filing of the written statement of defence, new information has emerged that has a direct bearing on the resolution of all the issues before this honourable court.”

Counsel has not satisfied the Court where this new information emerged from as no source of information is disclosed. Because it is impossible for the Defendant not to know what it did, the inference from the affidavit of Ivan Kyateka is that firstly, he did not have full instructions of the Defendant in terms of the facts of the suit.  The original written statement of defence was filed on the 9^th of April, 2010.  Application to amend the written statement of defence was filed about 1 year 8 months later on the 2^nd of December, 2011.  The affidavit of Ivan Kyateka is specific in paragraph 4 that the new information emerged since the filing of the written statement of defence.  Secondly, can it be concluded that he was a duly authorized agent of the applicant?  Thirdly, as he has rightly averred in paragraph 1 of his affidavits in support of the chamber summons, he is an advocate practicing with a Messrs Tumusiime, Kabega and Company Advocates.  This is the crux of the problem.  Is he an advocate duly appointed as an agent as averred? An Advocate is forbidden from swearing an affidavit in contentious matters and conducting the suit as well. However is the affidavit made in the capacity of Advocate?

Learned Counsel Ivan Kyateka averred that he is an authorised agent of the applicant. No authority of the principal was attached to the affidavit in support.  Order 3 of the Civil Procedure Rules provides for recognized agents.  Rule 1 of order 3 deals with appearances and provides that any appearance or any act in any court required or authorized by law to be made or done by the party in such Court except where otherwise expressly provided by any law for the time being in force, shall be made or done by the party in person or by his or her recognised agent or by an advocate duly appointed to act on his or her behalf.  Learned counsel does not show in the affidavit that he is a duly appointed advocate to act on behalf of the client.

Rule 2 deals with recognized agents of parties by whom such appearances, applications and acts may be made or done.  The kinds of persons classified and referred to as recognized agents are persons holding powers of attorney authorising them to make such appearances, applications and do all such acts on behalf of the parties.  Secondly “persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, when no other agent is expressly authorised to make and do such appearances, applications and acts.”

It is quite clear that any recognised agent is a party who holds powers of attorney.  In this particular case Ivan Kyateka does not attach any authority to do any act on behalf of the party. It may be argued that he could give those facts as an advocate duly appointed under rule 1 of order 3.  This argument is negated by the fact that he avers that he is both an advocate and a duly authorized agent.  Paragraph 1 explicitly provides for the capacity in which the affidavit is made and I quote:

“That I am an adult male Ugandan of sound mind, an advocate in the abovementioned law firm, the duly authorized agent of the applicant herein, competent and authorised to affirm this affidavit in that capacity.”

Paragraph 1 of the affidavit of Ivan Kyateka merely describes him as an advocate practising with the firm described therein. The capacity in which the affidavit is made is expressly stated thus: "the duly authorised agents of the applicant here in, competent and authorised to affirm this affidavit in that capacity." The affidavit is therefore made in the capacity of a duly authorized agent of the applicant and not in the capacity of an advocate.  For emphasis there is a world of difference between a duly authorized agent and a duly appointed advocate.

Even if Ivan Kyateka was an advocate of the Applicant, does an advocate need authority to swear an affidavit in matters of this client and especially in contentious matters?  This question is answered by an examination of order 3 rule 1 of the Civil Procedure Rules. This rule provides that anything that may be done by a party may be done by the party in person or by his or her recognize agent, or by an advocate duly appointed to act on his or her behalf.  The point to be made is that order 19 rule 3 (1) of the Civil Procedure Rules provides that

“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 that the grounds thereof are stated.”

  Obviously in this case and the deponent is not able of his own knowledge to prove that new facts have emerged or what those facts may be. It is clear from the affidavit that any new facts may only have been obtained from information. If learned counsel had this knowledge, he could not aver that new information had emerged with a bearing on the case. The capacity in which the affidavit is made becomes crucial. In case of beliefs, the grounds of the beliefs are supposed to be stated.

Notwithstanding the averment of Ivan Kyateka in paragraph one of his affidavit that he made the affidavit as an authorized agent, I have tried to establish what a duly appointed advocate is or a duly appointed advocate may be in terms of order 3 rule 1 of the Civil Procedure Rules.  Rule 1 uses the words “duly appointed to act”. 

The words "duly appointed to act" are clearly distinguishable from an advocate who has been duly instructed. An appointment to act on behalf of the client must be in writing. This requirement would be consistent with order 7 rules 4 of the Civil Procedure Rules. This rule requires evidence that a person pleading in a representative capacity should demonstrate that the necessary steps have been taken to enable the representative to institute a suit in a representative character. This also applies to making an affidavit in the capacity of a party to the action. In this particular case, the applicant is a limited liability company and a written authority for learned counsel Ivan Kyateka to make an affidavit in the capacity of the party and not that of an advocate should be attached to the affidavit in support. Moreover, any official of the company who could have given written instructions is not named. Authority to give instructions in such a matter of a company is dictated by the memorandum and articles of Association of the company. It may be made by a director if enabled by the articles or by resolution and all this is determined by the articles of Association.

Having a written authority would shield the advocate from committing an offence under the Advocates Act namely The Advocates (Professional Conduct) Regulations Statutory Instrument 267 – 2, regulation 15 thereof which provides that:

"An advocate shall not include in any affidavit any matter which he or she knows or has reason to believe is false"

It is impossible for the applicant company to aver that what it did to either pay the Plaintiff or agree with the Plaintiff several years ago were emergent facts that emerged after the filing of the written statement of defence. Even if this information was made by the client in an affidavit, it is impossibility not to know what one did. Learned counsel as an advocate would have been under a duty not to include this information in the affidavit of his client because it is obviously false in the sense that it cannot be new and emerging information which information arose after the filing of the written statement of defence as averred in the affidavit. In the very least, if it is an official of the company providing this information, that official ought to be named in the affidavit.

In the premises, the main basis of the application for amendment of the written statement of defence is paragraph 4 of the affidavit of Ivan Kyateka which provides that:

"Since the filing of the written statement of defence, new information has emerged that has a direct bearing in the resolution of all the issues before this honourable court".

Last but not least the applicant would not be prejudiced in arguing that the suit is frivolous and vexatious or that the plaint does not disclose a cause of action in that this can be argued without the amendment under order 7 rules 11 or order 6 rules 30 of the Civil Procedure Rules. This is because only the pleadings may be examined and no evidenced is required. Furthermore, the defendant may still be able to argue its defence that it is not indebted to the plaintiff on the basis of the written statement of defence as currently framed. In that sense, the defendant would not be greatly prejudiced if this amendment is not allowed.

In the premises, the Applicant’s application for amendment of the written statement of defence is supported by a defective affidavit that cannot support the chamber summons. The application accordingly fails and is dismissed with costs.

Ruling delivered at Kampala this 20^th day of April 2012. 

Christopher Madrama

Judge

Judgment delivered in the presence of:

Benson Tusasirwe holding brief for Tendo Kabenge for Respondent/Plaintiff,

Ronald Oine for the Applicant

Ojambo Mokoha Court Clerk

Hon. Justice Christopher Madrama

20^th of April 2012.

Proceeding:

Oine Richard seeks leave to appeal.

Court:

Leave to Appeal is granted.

  Hon. Justice Christopher Madrama

20^th of April 2012.