THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 1079 OF 2013

(ARISING FROM MISCELLANEOUS APPLICATION NO 110 OF 2012

ARISING FROM HCCS NO 16 OF 2012)

KASESE COBALT COMPANY LTD}........................................................APPLICANT

VS

NATIONAL FORESTRY AUTHORITY}................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application under the provisions of order 44 rule 1 (1), (2), and (3) of the Civil Procedure Rules for leave to appeal the ruling of the court that the Applicant was effectively served with summons on 17 January 2012 and not the 19th of January 2012. Secondly the application is for stay of proceedings in Miscellaneous Application No. 110 of 2012 and for the costs of the application to be provided for.

The grounds of the application are that the trial judge erred in law and fact when he ruled that the Applicant was effectively served with summons on 17 January 2012. Secondly that the trial judge erred in law and fact when he ruled that the Applicant’s liaison officer was a principal officer of the Applicant. Thirdly the learned trial judge erred in law and fact when he held that the use of the stamp at the Kampala office of the Applicant was deemed to be of the proper registered office of the Applicant. Lastly that it is fair and just that the application is allowed.

The application is supported by the affidavit of Byrd Ssebuliba an advocate of the High Court as well as a lawyer practising with Messieurs Shonubi, Musoke and company advocates, Counsel for the Applicant. He deposes that he read the ruling of Honourable Justice Christopher Madrama Izama delivered in Kampala on 9 November 2013 dismissing Miscellaneous Application Number 110 of 2012. He believes that there was an error of law and fact when it was held that the Applicant was effectively served with summons on 17 January 2012. The deponent repeats the grounds in the notice of motion and further deposes that the trial judge erred in law and fact when he partly based his decision on the fact that he did not state in his affidavit whether there were other principal officers in the Applicant’s liaison office.

In reply the Respondent opposed the application. The affidavit in reply is that of Ruth Kisaakye of Messieurs Akampumuza and company advocates. She deposes that she is the Legal Manager of the Respondent clothed with authority to make the reply. She deposes that the affidavit of Byrd Ssebuliba is riddled with falsehoods. The orders sought and the grounds in the notice of motion are in vain because the court conclusively determined the application and execution process was completed and there are no proceedings to stay in Miscellaneous Application Number 110 of 2012 which is res judicata. Secondly the grounds in support of the application are an attack on the court which is accused of erring in law and fact and the court is not clothed with jurisdiction to adjudicate disguised grounds of appeal. She further deposes that the trial judge made correct findings having addressed himself on the law and issued appropriate orders and the unwarranted attack is misconceived and a waste of the time of the court. The application is an abuse of the court process as the Applicant lodged an appeal to the Court of Appeal by filing a notice of appeal and is yet seeking leave to file a notice of appeal in the Court of Appeal out of time and the court has no jurisdiction to entertain concurrent jurisdiction with the Court of Appeal on a case with similar facts arising from the same transaction and between the same parties. The Applicant has not provided factual or legal grounds in support of or for granting the application. In the premises the Respondent asserted that it would raise a preliminary point of law to the effect that the application is misconceived, bad in law and an abuse of process and should be dismissed with costs.

The Respondent further filed an additional affidavit in reply in which Ruth Kisaakye, the deponent thereof indicated that the Applicant fulfilled the demand requirements of the Respondent by paying the due fees in February 2015 according to a copy of the bank statement.

The address of the Applicant’s Counsel makes reference to the notice of motion and the grounds deposed in the affidavit of Byrd Ssebuliba referred to above. Counsel submitted that the primary matter to be determined is whether the application shows prima facie that there are serious issues of law or fact or both that merit judicial consideration by an appellate court according to the case of Hebert Sekandi t/a Land Order Developers vs. Crane Bank Ltd HCMA No. 44 of 2007, a decision of Honourable Justice Lameck N. Mukasa.

The Applicant’s Counsel submitted that the Applicant’s application raises substantial questions of law which would require the appellate court to pronounce itself thereupon. The question for the superior court is who is a principal officer of the company for purposes of services under Order 29 rule 2 (a) of the Civil Procedure Rules. Secondly whether Grace Kayongo who is the Applicant’s liaison officer was the principal officer for purposes of Order 29 rule 2 (a) of the Civil Procedure Rules. Counsel invited the court to note that the Companies Act Cap 110 and the Companies Act 2012 as well as the Civil Procedure Rules to not define who a principal officer of the company is. Counsel sought to rely on Vic Groves and Company Ltd (1964) 2 All ER 83 where it was held that the expression "principal officer of the company" is not necessarily limited to Directors. Various other officials of corporations have from time to time been accepted as principal officers. Furthermore Black's Law Dictionary 8th Edition page 1118 defines a principal officer as an officer with the most authority of the officers been considered for the same purpose. The expression ‘principal officer’ has to be determined on the basis of the facts as to whether the person or the officer is the principal officer in the circumstances of the case.

The use of the company seal and the authority to append a signature to the company seal is evidence which has not been rebutted and the officer served was the principal officer authorised to use the company seal with her signature for purposes of acknowledging service. There is no written law in Uganda defining a principal officer.

With reference to Grace Kayongo as only a liaison officer, she did not have the most authority in the Applicant for any purpose and therefore could not be the principal officer. She was not a Manager, Director, Secretary or Chief Executive Officer of the Applicant. According to the English Oxford Advanced Learners Dictionary eighth Edition a ‘liaison officer’ is the person whose job is to make sure that there is a good relationship between two groups of people, organisations. Counsel submitted that there are different views of who a principle officer of a company is and the matter ought to be determined by the Court of Appeal. The issue is whether Grace Kayongo can be properly referred to as the principal officer of the Applicant merely from the use of the company seal and stamps to receive summons.

Counsel further submitted that Grace did not use the company seal but instead used an acknowledgement stamp to receive the summons. The stamp was used by officers/employees and does not make the person a principal officer of the company. In Remco Ltd versus Mistry Jadva Parbat and Co. Ltd and Others [2002] 1 EA 233 Justice Ringera held that service on the receptionist of the company was not proper service. The Applicant’s Counsel suggested that even service on the liaison officer or any other ordinary employee in possession of the company stamp does not imply that he or she is the principal officer.

Counsel further submitted that an authorised officer is not necessarily a principal officer for purposes of receiving summons. This is because they do not have the most authority in the company or among other officers in the company such as that of Directors, Managers and secretaries as well as the chief executive. Lastly the issues raised merit judicial consideration by a superior court because the courts in Uganda have not previously pronounced themselves on the issue and regarding the meaning of "principal officer" under Order 29 rule 2 (a) of the Civil Procedure Rules.

The Applicant’s Counsel further invited the court to consider the fact that the main suit was never heard or determined on the merits. When Miscellaneous Application Number 110 of 2012 was determined on 9 December 2013, the Applicant immediately filed Miscellaneous Application Number 1079 of 2013 on 17 December 2013 seeking the leave of court to appeal against the decision. The Applicant in the premises is not guilty of any dilatory conduct.

In reply the Respondent’s Counsel submitted that it brought a summary suit for recovery of money owed by the Applicant on account of a commercial relationship. The Applicant was served with summons and directed to apply to the court for leave to appear and defend the suit within 10 days. The Applicant failed to comply with the order within the time allowed and the court proceeded to enter judgment and decree in favour of the Respondent within the terms ordered by the court. Secondly execution was completed. The Applicant made an application to set aside the judgment and decree and completed the execution. The High Court heard and dismissed the application with costs to the Respondent. Thereafter the Applicant proceeded to file and serve the appeal in the court of appeal followed by an application for leave to appeal in the same court. The instant application was also filed in the High Court. In the meantime the Applicant by consent got the Respondent’s costs in Miscellaneous Application Number 110 of 2012 taxed and proceeded to pay. The Applicant further proceeded to pay the subsequent outstanding licence fees on 3 February 2015 that had once again accrued after the execution of the decreed sum in civil suit number 16 of 2012 thereby leaving no outstanding claim.

The Respondent objected to the application on the ground that it is an abuse of court process. The Respondent’s Counsel submitted that the application is an abuse of court process because there is nothing to appeal against and the suit was settled and payment effected and there is no pending obligation between the parties. This suit has been overtaken by events.

Secondly the Respondent’s Counsel submitted that there was no right of appeal. There is already an appeal filed in the Court of Appeal by the Applicant, including an application in the Court of Appeal for extension of time. Notice of appeal was also filed in court of appeal which thereby commenced the appeal. This was done without leave of court yet no appeal lies as of right. The Applicant filed a notice of appeal and is yet seeking leave to file it and also appealed to the Court of Appeal out of time and this honourable court has no jurisdiction to entertain the concurrent jurisdiction with the Court of Appeal on a case with similar facts and arising from the same transaction between the parties. The High Court cannot continue to entertain the same application which is also before the Court of Appeal by way of an appeal concurrently. The Court of Appeal is already considering the matters. It is therefore a classic case of an abuse of the process of court.

Because the matter was filed in the Court of Appeal, the High Court no longer enjoys jurisdiction to entertain the concurrent application for leave to appeal when the appeal was already made. Before appealing to the Court of Appeal, no application was first made in the High Court and rejected as required by rule 42 (1) of the Court of Appeal Rules. Counsel invited the court to follow the decision in the case Sengendo versus Busulwa Lawrence and Male Abdu Civil Application No. 207 of 2014. The ruling is to the effect that where an application may be made either in the Court of Appeal or in the High Court, it shall first be made in the High Court. The application must therefore fail on that ground alone. There is no evidence that this application was first made in the High Court and rejected. The court further struck out the appeal on the ground that no appeal lies.

The notice of appeal was filed out of time. The Applicant served the notice of appeal out of time by 22 January 2014 over a month after filing it on 11 December 2013. They had a duty to serve the notice of appeal within seven days of its filing under rule 78 (1) and (2) of the Court of Appeal Rules and on this ground alone the application ought to be struck out.

The Respondent’s Counsel further submitted that the affidavit of Byrd Ssebuliba is incurably defective and is based on belief without stating the basis of the belief anywhere contrary to Order 19 rule 3 of the Civil Procedure Rules. And an authorised agent cannot swear an affidavit on behalf of the party unless they are an agent of the party or duly authorised. In the case of Sembule Steel Mills Ltd versus Euro Metal Service Miscellaneous Application 428 of 2012 it was held that affidavits shall be confined to matters within one's own knowledge. However where it is an interlocutory application, the grounds of the belief are to be disclosed. The affidavit does not state the grounds of belief.

The Respondents Counsel further submitted that the application is res judicata.

In reply without prejudice to the merits of the application the Respondent’s Counsel invited the court to consider the facts and the single issue which is whether the application raises serious issues of law or fact that merit judicial consideration by an Appellate Court.

The Respondent’s Counsel submitted that the appeal has no arguable grounds in the face of it and invited the court to consider the case of G.M Combined (U) Ltd versus A.K. Detergents (U) Ltd Civil Application Number 23 of 1994. Counsel submitted that the application is devoid of merit and does not meet any of the grounds/principles for grant of leave to appeal. There is no prima facie serious issue of law or fact or both that merit judicial consideration by the Appellate Court.

All the grounds were conclusively resolved by the High Court in its ruling. The Applicant does not attach either the ruling or orders of the court seeking leave to appeal as required by rule 44 (4) of the Court of Appeal Rules which prescribes a strict requirement. The application merely attacks the judge and does not raise any issue for grant of leave to appeal. The Respondent’s Counsel relies on the case of Mwene Kahima Mwesigye vs. Ambo Financial Services Ltd, Court of Appeal Civil Application No. 56 of 2015. There was failure to rebut the evidence that the officer served was a principal officer and this was the ruling of the court. No appeal lies against evidence that is not rebutted as it remains unchallenged in any judicial proceeding. Therefore attempt to create an issue as to who a principal officer of the Applicant is, based on the different dictionary definitions are untenable. The Applicant simply quotes cases out of context in an attempt to mislead the court. The question was already settled and does not depart from the decision in Re: Vic Groves and Co. Ltd (1964) 2 All ER 83 cited by the Applicants Counsel. Counsel further submitted that the Applicant’s Counsel misinterpreted Order 29 rule 2 (b) of the Civil Procedure Rules which provides that summons may be served by leaving it at the place where the Corporation carries on business. This was done irrespective of the arguments about what a principal officer is. Furthermore the Respondent’s Counsel maintains that the liaison officer is not a receptionist and the submission that equates the two is misleading. He further contended that the intended appeal has no chance of success as the additional single arguable grounds raised irregularly attempts to overrule the judge’s holdings with new or similar arguments.

Lastly Counsel submitted that there was no requirement to determine a summary suit on the plaint in the absence of a competent application for leave to appear and defend having been filed under Order 36 of the Civil Procedure Rules. There was dilatory conduct and this court already pronounced itself on the matter. In the premises there is no justice, fairness or reasonableness in granting leave to appeal against a summary suit that itself is not the subject of a challenge the same having been concluded and execution having been completed. An appeal is not an academic or moot exercise. The Applicant did not make any submissions on ground 2 for stay of proceedings and ground 3 for costs and this ought to be taken as abandoned by the Applicant. Furthermore the court ought to find that in the submissions the Applicant never challenged or referred to the affidavit evidence of the Respondent in the reply in which case the facts in it should be taken as proved.

In rejoinder the Applicant’s Counsel made a reply to the preliminary points of law.

On the question of whether the application for leave to appeal is an abuse of the process of court, the Applicant’s Counsel admitted that the Applicant effected payment of the rent arrears after determination of Miscellaneous Application Number 110 of 2012. Such a payment was done after the filing of the application for leave to appeal and was done without prejudice to the court matters. Therefore this application was filed before the payment and cannot be regarded as an abuse of the process of court. He contended that in the case of Attorney General and Uganda Land Commission versus James Mark Kamoga and another Mulenga JSC held that abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. Counsel further relied on the decision of this court in Shumuk Springs Development Ltd and Others versus Boney Katatumba and the definition of abuse of process referred to in that case.

The Respondent’s Counsel has not furnished any evidence to show that the Applicant has used the court for an improper purpose or has misused the established court machinery and procedures. The Respondent’s Counsel cannot submit that there is nothing to appeal against as the suit was settled. This is because the Applicant seeks to appeal against the decision and orders of the court issued in Miscellaneous Application Number 110 of 2012 upon the grounds contained in the notice of motion. Furthermore the little evidence of the court record in the form of the consent between the parties to show that the suit was settled and the court should disregard the first preliminary objection.

Secondly the Respondent’s Counsel submitted that the instant application is an abuse of court process as the Applicant appealed to the Court of Appeal by filing a notice of appeal and seeking leave to serve the notice of appeal out of time and that the High Court has no concurrent jurisdiction with the Court of Appeal in the matter. The Applicant’s Counsel submitted that the instant application is different in law and character from the application in the court of appeal. The instant application is for leave to appeal against the decision in Miscellaneous Application Number 110 of 2012 and is brought under Order 44 rules 1 (1), (2), and (3) of the Civil Procedure Rules and the High Court has jurisdiction to hear it. The application was filed because the Applicant has no automatic right of appeal.

Secondly rule 76 (1) and (2) of the Judicature (Court of Appeal) Rules requires a person dissatisfied with the decision of the High Court to file a notice of appeal within 14 days from the date of the decision. The notice of appeal is served on the intended Respondent within seven days failing which the intended appellant had filed in the Court of Appeal an application for extension of time within which to serve the notice of appeal on the Respondent hence the Applicant’s application in the Court of Appeal. Consequently the Applicant has not yet filed an appeal as the Respondent’s Counsel alleged in his submissions because no memorandum of appeal has yet been filed in the Court of Appeal. It is trite law that the filing of a notice of appeal is merely an expression of intention to commence an appeal and is not by itself an appeal according to the case of GM Combined (U) Ltd versus A.K Detergents (U) Ltd (supra) reported in (1995) IV KALR 92.

The Applicant’s Counsel agrees that where there is no automatic right of appeal, an application for leave should first be filed in High Court. On the question of whether the court should strike out the notice of appeal, the High Court has no jurisdiction to do so.

On the question of whether the affidavit in support of the notice of motion is defective, the deponent is an advocate of the High Court of Uganda and the Applicant’s Secretary and is competent.

As far as the merits of the application are concerned, there is no attack on the trial judge. Furthermore the Applicant’s Counsel contends that the Respondent’s Counsel did not respond to the real issues raised in the earlier submissions. He just raised unwarranted preliminary objections and submitted that the Applicant attacked the court. Furthermore the Applicant complied with rule 44 of the Judicature (Court of Appeal) Rules contrary to the submissions of the Respondent’s Counsel. In the premises the Applicants Counsel reiterated earlier submissions in respect of the grounds for leave to appeal.

Ruling

I have carefully considered the application together with submissions of Counsel. The Respondent’s Counsel raised several preliminary objections to the application. He contended inter alia that the application is an abuse of court process because it has been overtaken by events.

It is true that execution was completed. This application seeks leave to appeal from the decision of the court holding that the Applicant was served on the 17th of January 2012. The consequence of that ruling was that the Respondent was entitled to judgment under Order 36 rule 3 of the Civil Procedure Rules. The effect of the rule is that in the absence of an application for leave to defend within 10 days from the service of summons in a summary suit on the Defendant, the Plaintiff is entitled to judgment. Following a decision of this court that the summons were effectively served by the process server on the 17th of January 2012, the Applicant/Defendant’s application for leave was rendered out of time and a default judgment was entered under Order 36 rule 3 of the Civil Procedure Rules. This application is an application for leave to appeal that decision. The issue is whether the decision about service was erroneous. Under Order 44 the appeal does not lie as of right and the Applicant has sought leave to appeal the decision to the Court of Appeal.

The application for leave was filed within 14 days of the decision of the court and is enabled by the rules. Whatever the merits of the application for leave, it cannot be an abuse of the process of court as it is a right conferred by the rules. Order 44 rule 3 provides that applications for leave shall first be filed in the court making the order. Secondly the Judicature (Court of Appeal) Rules 1996 provides under rule 40 (2) (a) provides that where an application is not made informally at the time the decision is made, it shall be made formally within 14 days of the decision sought to be appealed. The application was filed on the 17th of December 2013 while the decision sought to be appealed was made on the 9th of December 2013.

I agree with the submissions of the Applicant’s Counsel that this application was filed before the execution process and payment made as contended by the Respondent’s Counsel. The objection on the ground of abuse of court process is overruled.

Secondly the Respondent’s Counsel argued that no right of appeal lies. He argued that an appeal was filed by notice of appeal without leave of court. I again agree with the Applicant’s Counsel that an appeal is commenced by filing a notice of intention to appeal. The actual appeal is commenced by memorandum of appeal within the prescribed time. Where leave is necessary to appeal, whether the leave to appeal is granted or not, a notice of appeal is to be filed within 14 days of the decision sought to be appealed under Rule 76 (2) of the Judicature (Court of Appeal Rules) Directions. The filing of the notice is not the appeal itself and leave is a pre-requisite to lodging the appeal. Secondly the time for lodging the appeal is reckoned either from the time of the decision or from the time of the record. Last but not least the Respondent further contended that the Applicant had filed an application in the court of appeal and the High Court cannot entertain concurrent jurisdiction with the Court of Appeal. I again agree with the Respondent’s Counsel that the application in the Court of Appeal is an application to serve the notice of appeal out of time. That application is within the jurisdiction of the Court of Appeal and not the High Court. In the premises there is no concurrent application in the High Court and Court of Appeal. The objection of the Respondent is overruled.

The Respondent further submitted that the notice of appeal was served out of time. That is a matter to be dealt with by the Court of Appeal and where it deems fit may consider the issue as to the competence of the intended appeal. The jurisdiction exercised by the High court at this stage is to determine whether leave to appeal should be granted. The objection has no merit as the matter is before the Court of Appeal.

On the question of whether the application is res judicata, the Respondent’s Counsel submitted that it is and it should not be entertained. The reasoning of the Respondent’s Counsel is that the High Court conclusively determined the issue on the basis of evidence that the Applicant did not show who a principal office in the Liaison office of the Applicant is. The issue is not preliminary but goes to the merits. What is for determination in this court is whether there are triable issues which merit judicial consideration by an appellate court which issue of issues have a reasonable prospect of success?

Last but not least on the question of whether the Byrd Ssebuliba’s affidavit is defective because his capacity to depose is in question, the Respondent’s Counsel did not rebut the contention that he is a Company Secretary of the Applicant and hence competent to swear the affidavit.

In the premises the preliminary objections are overruled and the Applicant’s application shall be heard on the merits.

I have carefully considered the merits of the application and the only question is whether the application raises arguable issues of fact or law which merit judicial consideration by an appellate court.

The basis for granting an application for leave to appeal was considered by the Court of Appeal in the case of Degeya Trading Stores (U) Ltd vs. URA Civil Application NO 16 of 1996. It was held that in an application for leave to appeal an Applicant seeking leave to appeal must show (a) that the intended appeal has a reasonable chance of success or (b) that he has arguable grounds of appeal or that there are matters of law that merit judicial consideration.

In my opinion where there are arguable points of law or fact it means that the issue are worthy of being considered either way by the appellate court. That they are not frivolous matters which may be disposed of summarily but are an issue or issues whose determination requires serious judicial consideration and the court cannot say that there is no reasonable prospect of success.

An application for leave to appeal is first made to the High Court and failure that it may be made to the Court of Appeal within 14 days from the date of refusal of the application for leave to appeal.

Going to the merits, the background of this application relates to a ruling on whether service of summons was effective. This issue revolved on whether service on the liaison officer on 17 January 2012 (on the Applicant’s liaison officer) was effective service. It was a fact agreed by both parties that such service was made by a process server of the Plaintiff’s firm of advocates.

I ruled on the matter on the 9th of December 2013 and held that summons in the summary suit on plaint in HCCS Number 16 of 2012 was issued by the registrar on 16 January 2012. The affidavit of service was filed on the High Court record on 2 February 2012. It was sworn by Owino Matthew who deposed that on 16 January 2012, he received copies of summons to file a defence issued by this court together with copies of the summary plaint for service on the Defendant. On the 17th of January 2012 he proceeded to the Defendant's office on Mukwasi House first-floor room 1.3 and to the Office Administrator’s Office where he tendered copies of the court documents to her and she read through and after understanding the contents she acknowledged receipt by signing and stamping on his copies and she retained her copies. The acknowledgement discloses acknowledgement by one Grace Kayongo on 17 January 2012 who duly signed and stamped it. It is stamped with the stamp of Kasese Cobalt Company Limited, Kampala office. The issue was whether Grace Kayongo was a duly authorised officer of the company.

The Applicant filed Miscellaneous Application No. 110 of 2012 arising out of HCMA No 37 of 2012 and arising out of HCCS No 16 of 2012 to set aside the judgment and decree. The application acknowledged that summons had been received by the Kampala liaison officer on 17 January 2012. The person who received namely the liaison officer proceeded to send the summons to her superiors in Kasese who received it on 19 January 2012. Consequently the Applicant relied on the date of 19 January 2012 as the proper date of service of summons. The Respondent on the other hand relies on 17 January 2012 as the proper date of service. I ruled that the only issue is whether Grace Kayongo was a principal officer of the Applicant. Secondly the matter before court was whether the court erred in law and in fact to hold that summons were duly served when Grace Kayongo received the same on the 17th of January 2012 when the said person was a Liaison officer stationed in Kampala.

I cannot decide whether this issue is frivolous or even res judicata. I ruled that effective service was made on Grace Kayongo from the point of view of the court process server. In the premises the triable issue is whether I erred in law to determine that Grace Kayongo duly received court process and the Applicant was duly served through her. The appellate court can determine the issue and there is indeed a triable issue which merits judicial consideration by a Superior Court which has been raised. The Court of Appeal may have to determine whether she is a principal officer of the Applicant.

In the premises the application for leave to appeal is granted.

The application for stay of execution has been overtaken by events and cannot be granted. The costs of the application shall abide the outcome of the intended appeal.

Ruling delivered in open court on the 27th of November 2015

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Paul Kawesi for the Applicant

Dr. James Akampumuza is absent

Parties are absent

Charles Okuni: Court Clerk

Christopher Madrama Izama

Judge

27th November 2015