THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA

AT KAMPALA

(COMMERCIAL DIVISION)

MISC APPLICATION NO 677 OF 2013

(ARISING FROM CIVIL SUIT NO 161 OF 2012)

1. ANDREW BABIGUMIRA }
2. WAVENETS COMMUNICATIONS LTD}........................APPLICANTS

VERSUS

1. GLOBAL TRUST BANK LTD}
2. JOHN MAGEZI}
3. DAVID BASHAIJA TA

ULTIMATE COURT BAILIFFS

 AND ACTIONEERS}

1. THE CHIEF REGISTRAR OF TILES}............. .........   RESPONDENTS

BEFORE HON MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicants application is brought under section 82 of the Civil Procedure Act, order 46 rules 1 and 8 of the Civil Procedure Rules for review of the court order dismissing civil suit number 161 of 2012 and particularly costs payable by the Applicants. It is for orders that instead the Applicant’s lawyers Messieurs Kashillingi, Rugaba and Associates pay the costs and the costs of the application are awarded to the Applicants.

The grounds of the application are that the honourable court dismissed civil suit number 161 of 2012 with costs on 13 June 2013. The court was however not aware that the suit was filed by the Applicants lawyers named above without instructions to do so by the Applicants. Thirdly the honourable court was not aware at the time of its decision to dismiss the suit that it was filed by the said lawyers without instructions. Had it been aware, it would have ordered the lawyers to pay costs personally. The Applicants were not aware of civil suit number 161 of 2012. The Applicants were never given a chance to appear before the court on the date of the dismissal of the suit and as such were deprived of the chance to bring this fact to the attention of the court. Finally the Applicants aver that it is just and equitable that the court order is reviewed so that the costs are paid by the said lawyers.

The application is supported by the affidavit of the first applicant who deposes to the facts as averred in the notice of motion. The application is filed by Messieurs Nyote Company Advocates. The notice of motion came for hearing on 18 September 2013. Counsel Piwang Paul of Messrs Nyote Company Advocates represented the Applicants. Counsel John Magezi, who is the second Respondent, represented himself while Counsel Nsamba and on holding brief for Mugenyi Assa appeared for the 1^st and 3^rd Respondents.

The Respondents Counsels objected to the application for review on preliminary points in written submissions.

The first point of objection by the second Respondent Counsel John Magezi as far as the background to his objections is concerned is that instead of instituting an appeal from the ruling of the court dismissing civil suit number 161 of 2012, the Applicants instituted a similar suit namely HCCS No. 344 of 2013 against the Respondents seeking exactly the same remedies. Pleadings in civil suit number 344 of 2013 are attached to the submissions. The second Respondent filed a written statement of defence to the subsequent pleadings as well. The two suits are instituted in the same court between the same parties in respect of the same subject matter and are clearly an abuse of the process of court and would occasion a miscarriage of justice. Counsel invited the court to peruse both files before coming up with a considered decision on the application for review.

The first ground of objection is that the affidavits in support of the application is riddled with falsehoods, contains speculation, lies and falsehoods and contradictions and is incompetent and ought to be struck out with costs. Counsel relied on the decision of the High Court in Sirasi Bitaitana and 4 Others versus Emmanuel Kananura [1977] HCB 34 where Allen J held that inconsistencies in affidavits cannot be ignored however minor since a sworn affidavit is not a document to be treated lightly. If it contains obvious falsehood, it all becomes suspect. Secondly an application supported by a false affidavit is bound to fail because the applicant in such a case does not come to court with clean hands and tell the truth. Counsel further referred to the decision in Nathan Katamba versus Stephen Kabigyema [2000] KALR 780 where his Lordship honourable justice. Musoke Kibuuka held that affidavits are serious documents. When they contain a falsehood in one part, the whole affidavit becomes suspect. He reiterated the decision in the case of Bitaitana vs. Kanunura (cited above).

Counsel submitted that the averment in the affidavit that the Applicants did not know about civil suit number 161 of 2012 and that it was filed by their former Counsel is false. The Applicants and their Counsel appeared in mediation proceedings in High Court civil suit number 161 of 2012. Furthermore the Applicants filed written statements on 12 June 2013 and filed in court on the same day. Consequently the Applicants were at all material times aware of civil suit number 161 of 2012 filed on their behalf by Messieurs Kashillingi, Rugaba and Associates. Finally on 13 June 2013 when the matter came for hearing, the Applicant’s advocates could not proceed because they were still negotiating on the question of instruction fees and the suit was dismissed under rule 7 of the Constitution (Commercial Court) Directions 1996. Secondly the court noted that there was a deliberate frustration of the process of scheduling by the plaintiff's Counsel because he had not yet resolved the question of instruction fees with his client.

Counsel submitted that the Applicants were deliberately telling lies when they state that they did not know civil suit number 161 of 2012 and that it was filed by the said Messieurs Kashillingi, Rugaba and Associates without instructions. Counsel submitted that the material paragraphs of the affidavits cannot be severed as had been held in the case of Col. Besigye Kizza versus Museveni Yoweri Kaguta and Electoral Commission, Electoral Petition No. 1 of 2001 [2001] UG SC P3.

The second Respondent further submitted that the application before the honourable court is devoid of any ground which justifies the grant of the application under Order 46 rule 1 of the Civil Procedure Rules. There is no averment in the affidavit that there are new and important matter of evidence which were not in possession of the applicant at the time the suit was filed. There is no justifiable proposition of any mistake or error apparent on the face of the record of the proceedings in civil suit number 161 of 2012. Finally the was no evidence to establish that the applicant has sufficient reasons for one the review of the court order dismissing civil suit number 161 of 2012. Consequently the application is incompetent and ought to be dismissed with costs.

The first and third Respondents also objected to the application and filed written submissions. Counsel for the Respondents submitted that the application is misconceived as it ought to have been filed and served against Kashillingi, Rugaba and Associates who are purportedly the lawyers of the Applicants. The Respondents cannot argue the application on behalf of the said lawyers. The application for review was brought against the wrong parties. Secondly the said firm of advocates cannot be condemned to pay costs without being heard. Counsel relied on Halsbury's laws of England third edition volume 36 at page 198 and the case of Abraham versus Justin [1963] 2 All ER at 472 and JB Kohl and Others vs. Bachulal P (1964) EA P 219. The authorities are to the effect that an advocate should not be condemned to pay costs personally without being given an opportunity to be heard.

Furthermore, the application does not have sufficient grounds for review. The applicant states that Kashillingi, Rugaba and Associates when instructed to file civil suit number 161 of 2012. However it is already on court record that the first applicant who happens to be a director of the second applicant attended court for a hearing. The first applicant who filed a witness statement which is on the court record is also aware. How could the applicant who attended the hearing and file a written statement aver that he had not instructed the Counsels who filed the suit? Consequently the first and third Respondents Counsel supported the second Respondent’s objection that the application is based on deliberate falsehoods and is an abuse of the process of court.

He further contended that it was important to note that the Applicants have never withdrawn instructions from Kashillingi Rugaba and Associates. Notice of instructions filed on 8 July 2013 clearly states that any correspondence should be served upon Nyote and Co Advocates as well. This implied that both firms should be served and indicates that the two firms have instructions. Counsel therefore prayed that the Applicant’s application is dismissed with costs to the Respondents.

In the written submissions filed on 23 September 2013, the Applicants Counsel opposed the preliminary objection. He submitted that when the application came up for hearing on 12 September 2010, the second Respondent indicated that he would raise a preliminary point of law to dispose of the application. However the submissions he filed is a mumbo-jumbo and a jumble of issues and the objection was misconceived.

Firstly, matters relating to civil suit number 344 of 2013 are best handled when the relevant suit comes up for hearing and not in the application for review. Secondly Counsel submitted that he did not see any need to delve into matters of res judicata in this application because it was obviously not res judicata. Thirdly in this argument, the second defendant went into the merits of the application without waiting for the applicant to present their application first. Counsel submitted that consequently the objection was devoid of any legal value and a waste of the courts time and resources. He prayed that the objections are dismissed with costs to the Applicants.

Ruling

I have duly considered the objection on the competence of the Applicant’s application for review of the decision of the court dismissing the plaintiff’s suit on 13 June 2013. The application for review is only to the extent that the costs ought to have been awarded against Counsels for the plaintiff and not the plaintiffs. The sole ground of the application for review is that the court was not aware that Messieurs Kashillingi Rugaba and Associates had no instructions from the Applicants/plaintiffs to file the action namely High Court civil suit number 161 of 2012 in the first place.

The objection to the application for review of the order of dismissal is contained in the notice of motion and affidavit in support thereof by the first applicant. The notice of motion seeks an order for the court to review the decision that costs are payable by the Applicants and instead that the costs should be paid by Messieurs Kashillingi Rugaba and Associates. The ground of the application is that the court was not aware that the suit was filed by Kashillingi, Rugaba and Associates without instructions to do so by the Applicants. That the Applicants were not aware of civil suit number 161 of 2012 and were never given a chance to appear before the court on the date of dismissal of the suit and as such were deprived of the chance to bring the fact of lack of instructions to the notice of the court. The affidavit in support of the application is that of Mr Andrew Babigumira, the first applicant and it repeats all the averments in the notice of motion on oath. He asserts that the Applicants did not know about civil suit number 161 of 2012. The suit was filed by Messieurs Kashillingi Rugaba and Associates without instructions of the Applicants.

The first objection is that the affidavit contains falsehoods. I have carefully considered the objection. It is a fact that is borne out by the record that on 12 June 2013 the first applicant filed a witness statement dated 12th of June 2013 and even had it commissioned before a Commissioner for oath on the same day. Inasmuch as I normally direct Counsels not to have a witness statement commissioned because it is supposed to be tendered on oath after the witness is sworn in before the court, the witness statement is for purposes of this objection evidence of the first applicant on oath. In paragraph 1 of the witness statement, the first applicant/plaintiff in civil suit number 161 of 2012 deposes as follows:

"That I am a male adult Ugandan of sound mind, resident at plot Ntinda, a certified project manager by profession and now engaged in private business, the first plaintiff herein and managing director…”

This statement contradicts the affidavit in support of the notice of motion for review of the decision of the court on the ground that the Applicants were not aware of the suit. There is no explanation as to how the Applicants came to file a witness statement in civil suit number 161 of 2012 if they were not aware of the suit or if they had not given instructions to file the action. The record of the court has a letter from the second plaintiff/applicant dated 21st of June 2013 and filed on court record on 21 June 2013 addressed to Messieurs Kashillingi Rugaba and Associates and signed by the first applicant as the managing director. It is filed in the court file of civil suit number 161 of 2012 and paragraph 1 thereof reads as follows:

"It has come to my notice that the court case, Plaintiff Andrew Babigumira and Wavenets Communications Ltd versus Defendants, Global Trust Bank, John Magezi, David Bashaija c/o Ultimate Court Bailiffs and Auctioneers, and the Chief Registrar of Titles, under civil suit number 161 of 2012 was dismissed last week, Thursday, 13th of June, 2013.

Kindly provide me with the grounds on which this case was dismissed.

I will be grateful for your prompt response in this regard.”

The letter is also copied to the Registrar, Commercial Court, Kampala and is duly signed by the first applicant as the managing director of the second applicant/plaintiff.

The averments of the first applicant in the affidavit in support of the application are as follows:

"1.That I am a male adult Ugandan of sound mind, the first applicant and a director of the second applicant hero in which capacity I make this is deposition.

2. That this honourable court dismissed suit number 161 of 2012 with costs on 13th of June 2013.

3. That this honourable court was not aware that the said suit was filed by Kashillingi, Rugaba and associates without our instructions.

4. That if this honourable court was aware at the time of its decision to dismiss the said suit that the same was filed by the lawyers without instructions, it would have ordered the lawyers to pay costs.

5. That we do not know civil suit number 161 of 2012.

6. That we were never given a chance to appear before court on the date of the dismissal of the said suit and as such we were deprived of the chance to bring this fact to the notice of the court.

7. That it is just and equitable that the said court order be reviewed so that costs are paid by the lawyers.”

On the basis of the above facts, I agree with the Respondents that the Applicants were aware of the suit. The Applicants were further aware that the suit was being handled by Messieurs Kashillingi and Rugaba and Associates. I agree that the affidavit has grave falsehoods. More particularly the only material averments which would have formed the basis of the application are that the Applicants were not aware of the suit and the suit was instituted without their instructions. The evidence on the record is clear that the Applicants were aware about the institution of the suit; the first applicant filed a statement on oath in the same suit and is the managing director of the second applicant which is a limited liability company. The knowledge of the first applicant is imputed on the second applicant as well. The affidavit is therefore false and cannot be relied upon in any application. The affidavit of Andrew Babigumira sworn to on 31 July 2013 is accordingly struck out.

The other points raised by the Respondents Counsel in objection to the application require the consideration of the merits of the application and there is no need to consider them. For instance it is not necessary to consider the point as to whether Messieurs Kashillingi and Rugaba and Company Advocates are necessary party to the application for review.

The notice of motion is not supported by any affidavit in the circumstances and is accordingly struck out with costs.

Ruling delivered this 25th of September 2013

Christopher Madrama Izama

Judge

Judgment/Ruling delivered in the presence of:

Nsamba Andrew holding brief for Assa Mugenyi who appears for the 1^st, 3^rd and 4^th respondent

John Magezi the second respondent in court

Andrew Babigumira the first Applicant in court

Christopher Madrama Izama

Judge

25^th September 2013