[2022] UGHC 32

## THE REPUBTIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AI MUKONO

# MtScELLANEOUS APPIICAT|ON NO.l30 0l ²⁰²¹

## lARrsNG FROM MTSCETLANEOUS APPLTCATTON NO. 108 Or 20211

## lARrstNG FROM ORTGTNTING SUMMONS N0.002 OF 2020)

AL SHATI INVESTMENT GROUP ICC APPTICANT

#### VERSUS

- 1. ABU DHABI ISTAMIC BANK - 2. ABERDEEN REAI ESTATES TIMITED - 3. EMIRATES ATRICA LlNK LIMIIED RESPONDENIS

## BEFORE: HON JUSTICE DR. FIAVIAN ZEIJA

#### RUTING

This is on opplicoiion brought under section 98 of the Civil Procedure Act ond Order 44 Rule 2 ond 4 of the Civil Procedure Rules for leove to oppeol the ruling ond orders of the Hon. N. D. A Botemo in miscelloneous opplicotion No. 'l 08 of 2O2lorising from originotion summons No. 2 of 2020.

The grounds upon which this opplicotion ls hinged ore briefly thot;

l. The Applicont ottoched the shores in the 2nd ond 3rd Respondenls lo recover the decretol sum in Civil Suif No. 695 of 2017


- 2. The 1st Respondent filed Originating Summons No. 2 of 2020 seeking to foreclose on various pieces of land allegedly mortgaged to it by the 2nd & 3rd Respondents. - 3. The foreclosure on the aforementioned properties has a direct effect on the value of the shares already attached by the Applicant. - 4. The Applicant filed Miscellaneous Application No. 108 of 2021 before this Honorable Court seeking to be added as a party to Originating Summons No. 2 of 2020. - 5. The Applicant had a number of illegalities it intended to bring to the attention of court upon being added as a party to the suit. - 6. On the 14th day of December, despite the various evidence apparent on the record, the trial judge made a ruling dismissing the Applicant's application to be added as a party to Originating Summons No. 2 of 2020. - 7. The dismissal of application to be added as a party is unfair to the Applicant who attached shares in the 2nd & 3rd Respondents to recover a decretal sum of \$40,000,000 (United States Dollars Forty Million only) - 8. That it is just and fair that the application is granted to allow the Applicant appeal against the ruling of the learned judge. - 9. The Applicant has filed a Notice of Appeal and Letter requesting for a certified record of proceedings. - The intended appeal arising from the ruling and orders of the 10. High Court in Miscellaneous Application No. 108 of 2021 is of merit and has high chances of success. - The Applicant is not guilty of dilatory conduct in instituting this $11.$ application.


12. It is in the inleresf of juslice thot leove to oppeol is gronfed lo the Applicont to oppeol ogoinsf the ruling in Misce//oneous Applicotion No. 108 of 2021.

ln reply, it wos deponed for the lst Respondent thot the Applicont hos foiled to demonstrote how the foreclosure on the 2nd & 3rd Respondents' right to redeem the mortgoged properties will dilule or diminish iheir shores ond the opplicont therefore hos no chonce of success on oppeol. Secondly, thot the Applicont does not prove to the required stondqrds ollegotions of forgery, froud ond collusion highlighted in the offidovit in support of the opplicotion. Thirdly, the Appliconl's intended oppeol is incompetent ond does not stond ony chonces of success becquse of procedurol impropriety ond foilure to toke the oppropriote steps required to commence on Appeol to the Court of Appeol. Fourthly, thot the Applicont is not o recognized entity under the lows of Ugondo ond therefore the intended oppeol hos no chonces to succeed becquse the Applicont is not on existing porty in low.

On beholf of the 2nd & 3rd Respondents, Counsel Nicholos Mwosome deponed on offidovit in reply bosicolly stoting thot the Applicont wos not privy to lhe loon ogreement / mortgoge deed thot wos entered into between the Ist Respondent ond ihe 2nd ond 3rd Respondents ond ihe Applicont could not hove been odded os o porty to the Originoting Summons. Ihot the justificotions pleoded by the Applicont in its offidovit in support of the opplicotion for leove to oppeol do not merit serious judiciol considerotion since the Applicont wqs not privy to the mortgoge deed

1FA^

between the 1st Respondent and the 2nd& 3rd Respondents. That the 2nd & 3rd Respondents have no knowledge of the Notice of Appeal or Letter requesting for certified record of proceedings as the same has never been served on their lawyers.

#### **Representation**

The application proceeded by way of written submissions. The Applicant was represented by Katende, Ssempebwa & Co. Advocates. The 1st Respondent was represented by M/S Lawgic Advocates. The 2nd & 3rd Respondents were represented by Shonubi, Musoke & Co. Advocates.

#### **Brief Background**

The Applicant is the decree holder in Civil Suit No. 695 of 2017 having obtained judgment against a one Ahmed Darwish Dagher Darwish Al Marar who happens to have shares in the 2nd & 3rd Respondent Companies. In the bid to execute the judgment decree in Civil Suit No. 695 of 2017 therefore, the Applicant attached the judgment debtor's shares in the 2nd & 3rd Respondent Companies by court's order of attachment of shares dated 18th February 2020.

Meanwhile, it is alleged for the Respondents that sometime in 2012, the 2nd and 3rd Respondents applied for and obtained a loan from the 1st Respondent in the sum of AED 49,104,156.48 (Forty Nine Million One Hundred and Four Thousand One Hundred Fifty Six Dirhams and Forty Eight Fils). As security for the said facility, a mortgage deed was executed on 2nd


April 2012 between the lst Respondent ond the 2nd ond 3rd Respondents for vorious properties situoie in Mukono registered in the nomes of the 2nd ond 3rd Respondents. lt so hoppens thot the 2nd ond 3rd Respondents defoulted on their loon obligotions which prompted the I st Respondent to commence the recovery process resulting into filing of originoting summons No. 2 of 2020 seeking to foreclose on the properties ollegedly mortgoged to the Ist Respondent by the 2nd ond 3rd Respondents. lt is these some properlies in which the Appliconl cloims interesl os o judgment creditor by reoson of the order of ottochment of shqres which the judgment debtor in civil Suit No. 695 of 2017 owned in the 2nd ond 3rd Respondent Componies.

However, the genesis of this opplicotion is rooted in the triol court's dismissol of ihe Applicont's Miscelloneous Applicotion No. 108 ot 2021 in which the Appliconl sought to be qdded os o porly to the orlginoilng summons with the view thot the ouicome of the originoting summons would hove on effecl on its interest irr the properties which the I st Respondent wos seeking to foreclose.

## Prelim inorv points of low

Counsel for the lsl Respondent submitted thot this opplicotion wos filed in the High court in Mukono on 20th December 2021 . Ihe summons were signed ond lssued by the leorned Deputy Registror on the some doy 20th December 2021 ond yet service on ihe Respondents wos done on 9th Februory 2022in conirovention of order 5 rule l(2) of the civil Procedure Rules Sl 7l-1 which requires thot summons ore served within 2l doys from the dote of issue. counsel vehemently orgued thot the Applicont wos

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required to serve the instont opplicotion on or by l2th Jonuory 2022 f oilure whereof the Applicont wos required to file on opplicotion for extension /enlorgement of time on or before 25th Jonuory 2022. Tnot noncomplionce in his view should render this opplicotion o non-storter for being fundomentolly defective. ln the some vein Counsel for the 2nd & 3rd Respondents submitted thot the opplicotion wqs served on them on I lth Februory 2022in controvention of the mondotory period of 21 doys wiihin which to serve summonses. As such, Counsel for the 2nd & 3rd Respondents equolly proyed thot the opplicotion be dismissed for being o non-storter.

ln response, Counsel for the Applicont noted thot when lhe motler first come up for heoring on lSth Februory 2022 courl issued timelines within which the 2nd ond 3rd Respondenls would file ond serve their offidovits in reply upon the Applicont i.e. by 24th Februory 2022. On 2nd Morch 2022, the Applicont filed its offidovit in rejoinder to the lst Respondent's offidovit in reply hoving not been served with the 2nd & 3rd Respondents' offidovits in reply. Thot on 91h Mqrch 2022, lhe Applicont filed submissions on the ossumption thot the 2nd ond 3rd Respondents did not intend to oppose the opplicotion hoving foiled to file ond serve the Applicont with offidovit(s) in reply within the timelines prescribed by court. Thot to-dote, the Applicont hos not been served with the 2nd ond 3rd Respondent's offidovii (s) in Reply but were rother served with their submissions on 2lst Morch 2022. Counsel for the Applicont further noted thot despite court hoving ordered the lst Respondeni to hove filed ond served their submissions upon the Applicont by l8th Morch 2022, lhe lst Respondent hos deliberotely folled to do so. As such Counsel for the Applicont proyed thot this court considers the Applicont's submissions doted ond filed on 9th Morch 2022 ond gront the


orders sought therein. He further reiteroted thot this opplicotion be set down for heoring ex-porte os ogoinst the 2nd ond 3rd Respondents pursuont to order I Rule ll(2) of the civil Procedure Rules on grounds of their foilure lo file offidovits in reply within the prescribed time prescribed by the rules.

Counsel for oll porties in this opplicotion ore occusing eoch other of dilolory conduct in os for os filing of their respective pleodings is concerned. I will first deol with the orgument by counsel for the lst Respondent thot this opplicotion suffers from o fotol defect by reoson of the Applicont's omission to file for extension /enlorgement of tlme within which to serve the summonses. order 5 rules I (2) of The Civil Procedure Rules provides os follows;

seryice of summons issued under sub-rule (l) of fhis rule sholl be effecled wilhin twenty-one doys lrom lhe dote ol issue,' excepl lhol the lime moy be exlended on opplicotion lo the court, mode within fifleen doys aller lhe expirolion of the lwenly-one doys, showing sufficient reosons for lhe exfension.

counsel for the Ist Respondent submitted thot service wos effected on him on 9th Februory 2022 whrle Counsel for the 2nd & 3rd Respondents submitted thot service wos effected on lhem on I lth Februory 2022. Although I see no offidqvits of service on record in respect to lhese dqtes, Counsel for the Applicont does not dispute them os being the conect dotes on which service of the oppllcotlon wos effected on the Respondents. The question thot orises then is on whot dote did the time within which to serve the summonses expire given the vorying opinions of counsels for the

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Respondents? Counsel for lhe lst Respondent contends thot the Applicont wos required to serve the instont opplicotion on the 1st Respondent on or by l2th Jonuory 2022. Counsel for the 2nd & 3rd Respondent on the other hond contends thot in regord io his clients, service of the opplicotion should hove been effected on 4th Februory 2022. Hoving recourse 1o Order 5l of lhe Civil Procedure Rules resolves this dispority of opinion. I will reproduce the relevont provisions here below;

#### ORDER LI-TIME.

#### 4. Time expiring belween 24th December ond lSth Jonuory.

Unless ofherwise direcled by the court, lhe period befween lhe 24th doy of December in any yeor ond the lSth doy of Jonuory in the yeor following, bolh dovs lnclusive. sholl nol be reckoned in lhe compulotion of the lime oppointed or ollowed by lhese Rules for omending, delivering or filing ony pleoding or for doing ony other ocl: excepf lhot lhis rule sholl not opply lo ony opplicolion lor on interim injunction, or lo ony business clossified by the regislror or by o mogfslrofe's courf os wgent.

## 8. Number of doys-how compuled.

ln ony cose in which ony porticulor number of doys nol expressed fo be cleor doys is prescribed under fhese Rules or by on order or direction of lhe court, fhe doys sholl be reckoned exclusively of the tirst doy ond inclusively of the lost doy.

Order 5 rules 'l (2) of the Civil Procedure Rules provides lhqt summons sholl be served within 2'l doys from the dote gt.iss.ue. As lhove olreody noted


obove os o question of focl summons were issued on 20th December 2021 . By the 24th of December 2O2l , qt leost 3 doys hod possed mindful thoi ihe doy of issuonce of summons ls excluded os much os the 24lh doy of December which qccording to order 5l Rule 4 is not reckoned in ihe computotion of time prescribed by the rules for omending, deliverlng or , filing ony pleoding. The 4th doy in this computolion would therefore resume with l6th of Jonuory 2022. Order 5',1 rule 4 of the civil Procedure Rules provides thot the time between the 24th of December of ony yeor ond the l51h of Jonuory of The yeor following sholl not be reckoned in the computoiion of the timelines ond os such they should be excluded. Going by this understonding therefore, the opplicotion ought to hove been served on the Respondents by 2nd Februory 2022 ond not I2th Jonuory 2022 os submitted by counsel for the 1st Respondent or 4th Februory 2022 os counsel for the 2nd & 3rd Respondents would like this court to believe.

Be thol os it moy, this opplicotion hoving been served on counsel for the lst Respondent on 9th Februory 2022 ond then on counsel for the 2nd & 3rd Respondents on I l th Februory 2022 wos cleorly out of iime in both instonces. whot then is the effect? counsel for oll Respondents were of the some mind thot the opplicotion is o non-storter ond it did not deserve to live to see onother doy in court. The question hos often been whether the use of the word "sholl" in the wording of order 5 rules 1 (2) of The civil Procedure Rules is mondotory or directory.

A hos.l of coses such os ulex lnduslries lfd ys. Altorney Generol, sccA No. ⁵²of 1997: ond Horizon Cooches vs. Edwqrd Rurongarango, SCCA No' ¹⁸ of 2009 ore to the effect thol Article 126 12) (e) hos not done owoy with the

requirement that litigants must comply with the Rules of procedure in litigation. The Article merely gives Constitutional force to the well settled common law principle that rules of procedure act as handmaidens of justice. The framers of the Constitution were alive to this fact. That is why they provided that the principles in Article 126 including administering substantive justice without undue regard to technicalities, must be applied "subject to the law." Such laws include the Rules of procedure. Particularly in the case of Utex Industries Ltd (supra), the Court had this to say:

"... we are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure of courts by enacting Articles 126 (2) (e). Paragraph (e) contains a caution against undue regard to technicalities. We think that the article appears to be a reflection of the saying that rules of procedure are handmaidens to justice - meaning that they should be applied with due regard to the circumstances of each case. We cannot see how in this case Article 126 (2) (e) can assist the respondent who sat on his rights since 18/8/95 without seeking leave to appeal out of time... Thus to avoid delays rules of court provide a time table within which certain steps ought to be taken."

Relatedly in Horizon Coaches vs. Edward Rurangaranga and Mbarara Municipal Council (supra), Katureebe JSC, as he then was, held as follows:

"Article 126 (2) (e) of the Constitution enjoins Courts to do substantive justice without undue regard to technicalities. This does not mean that courts should not have regard to technicalities. But where the effect of adherence to technicalities may have the effect of denying a party

 ## subslonfiveiustice, the Courf should endeovor to invoke lhol provision of lhe Consfilution."

ln view of the obove cited outhorities, the guiding foctor is therefore, whether the Applicont's non-complionce with Order 5 of the Civil Procedure Rules moy be regorded os o mere technicolity or it goes to the substonce of the cose ond hos the consequence of rendering the instont opplicotion o non-storter.

From the onset, let me emphosize thot omendments to Ihe Civil Procedure Rules introduced on 24lh July 1998 were port of meosures token to ollow for more expedient justice for ihose with legitimote cloims.

The use of the word "sholl" primo focie mqkes the obove requirement in O.5 r 2 of the CPR mondotory. Consequently, provision ouiomoticolly involidotes summonses to file o defence/reply which moy hove been issued ond ore nol served within twenty-one doys of issuonce. lt is meont to erodicote suits which ore filed for the soke of ochieving colloterol objectives oiher thon the genuine determinotion of justicioble disputes ond os o meons of expeditiously disposing of frivolous, vexotious or speculotive suits. lt is thus settled k:w thot the provisions of Order 5 of Ihe Ctvtl Procedure Rules ore mondotory ond should be complied with (see Konyobwero v. Tumweboze [2005] 2 EA 86 ot 93).

However, o plointiff/opplicont, who foils to serve summons within the required twenty one doys from ihe dote of issuonce of the summons upon him or her for service, will not primo focie lose the right to do so beyond thot period, provided the court permits him or her to do so for reosons which it must stote in ^r ng Extension of the time within which to serve the

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summons must be sought "within fifteen doys following expirotion of the twenty-one doys. The procedure for on opplicotion for exfension of time is by woy of summons in chombers (see Order 5 rule 32 of Ihe Civil Procedure Rules/. Tne requirement of q formol opplicotion showing sufficient grounds for the extension of time to serve summons out of time imposes o duly on the Court to opply its mind to the reosons odvonced by ihe plointiff/opplicont for his or her foilure to serve within the twenty one doys qnd to record the reosons for extendingr the lime. The implicotion is thot, there is no mechonicol extension of time for serving summons io file o defence/reply. The Court must be sotisfied by evidence on record ond stote the exoct grounds for permiiting o porty to do so beyond the stipuloted period. An opplicotion for extending the volidiiy of summons which hove not been served must be mode, by filing on offidovit setting out the ottempts mode ot service ond their result, for which court sholl bose on to moke oppropriote orders

However, in the instont cose, no formol opplicotion wos mode for exlension of time following the expiry of ihe 2l doys. ln foct no reosons were given whotsoever, for serving the instoni opplicotion out of time without outhorizotion by the court to do so. When the issue wos roised by the Respondents, counsel for the opplicont orgued in his written submissions thot court by giving schedules for filing wriiten submissions hod by implicolion ollowed service out of summons out time. With due respect, ^I disogree with counsel for the Applicont, for the reosons I hove olreody given obove to wit; there is no mechonicol extensions of time. Extensions of time must be opplied for ond Court must give reosons for so doing, which in the instont cose wos not done. At leost, I expected thot hoving oppeored


before me, counsel for the applicant should have laid bare orally the need for extension of time to serve this application out of time. This was not done.

It is argued by counsel for the applicant that the court should in the interests of justice disregard irregularities. That submission is apparently inspired by the general principle that the rules of procedure are intended to serve as the hand-maidens of justice, not to defeat it. And indeed, I agree with this principle. In deserving cases, the court may rightfully exercise its discretion to overlook the failure to comply with rules of procedure, upon such conditions as it may deem fit intended to guard against the abuse of its process. Article 126 (2) (e) of The Constitution, 1995, enjoins courts to administer substantive justice without undue regard to technicalities.

However, each case is to be decided on its facts. In Kasirye Byaruhanga and Company Advocates v. Uganda Development Bank, S. C. C. A No. 2 of 2007, (unreported) it was left to the discretion of the trial judge to decide whether in the circumstances of an individual case and the commands of justice, a strict application of the laws of procedure, should be avoided. The Supreme Court decided in that case that;

"A litigant who relies on the provisions of article 126 (2) (e) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to have undue regard to a relevant technicality. Article 126 (2) (e) is not a magical wand in the hands of defaulting litigants". (Underlined emphasis is mine)


The court is mindful of the mischief sought to be cured by the requirement for strict complionce with the periods of time stipuloted in Order 5 of the Civil Procedure Ru/es. The entire scheme of thot Order oims of only one thing; to obtoin the presence of 'lhe defendont to o cloim ond to provide full informotion obout the noture of the cloim mode ogoinst him or her expediiiously wilhout undue deloy. Ihis is consistent with the requiremeni of Article 28 (l) of fhe Constitution of the Republic of Ugondo, I995, 1o the effect thot in the determinotion of civll rights ond obligotions, o person sholl be entitled to o foir, speedy ond public heoring. This is ochieved by effecting personol service foilure of which substiluted service moy be ollowed In such situotions qs the rules permil. Therefore, if the defendont/respondent oppeors before the Court ofter the filing of the suit ogoinst him or her, before summons hove expired, ond he or she is informed obout the noture of the cloim qnd the dote fixed for reply thereto, it must be deemed thot the defendont hos woived the right to hove o summons served on him if such o defendont goes oheod to file o defence/reply to the suit before he or she is formolly served in occordonce with the rules of service of summons. I hosten to odd thot this position is volid where the suit hos not become stole for wont of oppropriote procedure/process.

Nevertheless, it is noi sufficient for o plointiff/opplicont to institute suit ogoinst o porty ond not toke oppropriote steps to effect service of summons. A defendont/respondenl must be invited to submit to the outhority of the court in order for the legol process of setting down the suit for triol to commence. Until o defendont/respondent is served with

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summons to file o defence/reply, there is no bosis for him or her to onswer to the suit.

The oiher question which orlses is whether foilure to odhere to such cleor ond eloborote procedurol requirements of Order 5 of fhe Civil Procedure Ru/es on the volidity of ond service of summons outside the stipuloted time frome is o mere procedurol technicolity thoi con be socrificed in fovour of substontive justice. I toke the view thoi summons to file o defence/reply is ^ojudiciol document colling upon the defendont/respondent to submit lo the jurisdlction of the court ond if the porty is noi given thot opportunity to so oppeor ond either defend or odmit the cloim, there is no other woy he or she will submit io ihe jurisdiction of the court. Similorly, where the lime silpuloted to serve thot document hos expired, then thot document locks the outhority of court, in the obsence of permisslon from the courl to serve lhe some oul of time. The rule lherefore, connot be o mere procedurol technicoliiy. lt goes io the substonce of the cose. A court hos no jurisdiclion to deol with q filed ploint/motion until o summons to file o defence hos been served ond o return of service filed, which step olone will octivote further proceedings in the suit. Until summons hove been issued ond duly served, the suit is redundont.

Arttcle 126 (2) (e) of rhe Consfitutionof the Republic of lJgondo, I995. is not ^omogic wond for oll ills ond in oppropriote coses the couri will still strike out pleodings such os ihis, considerlng thot one of the oims ond overriding objective of the omendment of order 5 of rhe Civil Procedure Rules wos to

enhance expeditious hearing and disposal of suits and curtail the abuse of court process for ulterior motives. Therefore, a suit/application would be liable for striking out at any stage upon expiry of the stipulated periods before the summons/application duly issued is served. The timelines in the rules are intended to make the process of judicial adjudication and determination swift, fair, just, certain and even-handed. Public policy demands that court cases be heard and determined expeditiously since delay defeats equity, and denies the parties legitimate expectations (see Fitzpatrick v. Batger & Co. Ltd [1967] 2 All ER 657). It is for these reasons that non-compliance with the requirements of renewal of summons to file a defence/affidavit in reply is considered a fundamental defect rather than a mere technicality and it cannot be cured by inherent powers since issuance and service of summons to file a defence goes to the jurisdiction of the court (see Mobile Kitale Station v. Mobil Kenya Limited & Another [2004] 1 KLR 1; Orient Bank Limited v. Avi Enterprises Ltd., H. C. Civil Appeal No. 002 of 2013; Western Uganda Cotton Company Limited v. Dr. George Asaba and three others, H. C. Civil suit No. 353 of 2009).

In the instant case, application was signed on by the Deputy Registrar on December 20, 2021. The twenty-one days within which the applicant should have served the application lapsed/expired on 2nd February 2022. Counsel for the applicant did not take any action to validate/extend time to serve the application out of time. Even if court was inclined in to exercise its inherent powers and discretion to ratify service out of time, there is no good reason whatsoever, that court would base on to validate service out of time since no justifiable reasons whatsoever was raised by the Applicant on oath

in pleodings justifying foilure to serve the opplicotion within the iime prescribed by the Rules even when the Applicont wos cleorly put on notice thqt the Applicont's Applicotion wos boned by low for wont of service ond or service wos effected pursuoni to expired summons' Doing otherwise would be encouroging extension of time mechonicolly which does not serve the interest of .iustice. It therefore, follows thot of the time the Appliconts served the opplicotion on the respondents out of time to wil on Februory 9 ond I 1 ol 2022, respectively, ond wiihout leove of court to do so, the opplicotion wos stqle ond o non-storter for non-complionce with the requirements of order 5 r I (2) of Ihe Civil Procedure Rules. consequently this preliminory objection is upheld.

Counsel for the Applicont in reloinder invited this court to slrike out the 2nd & 3rd Respondent's offidovit in reply filed in this court on 9ih Morch 2022out of time given thot court hod direcied thot offidovits in reply be filed by 24th Februory 2022. Covnsel submitted ihot when he checked the courl record ond found thot the 2nd & 3rd Respondents hod not filed offidovits in reply, he proceeded to file written submissions on 9th Morch 2022 on lhe ossumption thot the 2nd & 3rd Respondents did not intend to oppose the opplicotion. Thot the Applicont hoving not been served with ony offidovit in reply, the 2nd & 3rd Respondents insteod opted to serve ihe Applicont with written submissions on 2lst Morch2022.

Accompcnying the 2nd & 3rd Respondent's qffidqvit in reply is o letter doted 9th Morch 2022 lhe some dote of filing the offidovit in reply. ln this letter. counsel for the 2nd & 3rd Respondents exploined thot beyond their

L7

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control, the officer who hod been identified os the deponent for the 2nd & 3rd Respondent foiled to get oudience before the Ugondon Ambossodor in Abu Dhobi for purposes of ottestotion ond thot is why the 2nd & 3rd Respondents were unoble to meet the timelines set by court. Counsel sought court's indulgence to insteod volidote Counsel Nicholos Mwosome's offidovit ond occept the some on court record. Looking of the sold offidovit in reply, Counsel Nicholos Mwosome did not ottoch ony evidence outhorizing him to depone the soid offldqvit on beholf of the 2nd & 3rd Respondents. He insteod purports to depone in the copocity of one who is well conversonl with ihe focls of this opplicotion. The low governing offidovits sworn by Advocotes is now trite thot except in formol ond noncontentious molters, on Advocote connot oct os Counsel ond o Witness ot the some lime os this would controvene regulolion 9 of the Advocotes (Professionol Conduct) Regulolions. See; Ugondo Developmenf Bonk versus Kosirye Byoruhonga & Co. Advocofes,' SCCA No. 35/1994, ond Yunusu lsmoil TlA Bombo City Slore V. Alex Komukomu & Olhers TlA Ok Bozdri (1992) 3 Kalr lt3 (Scu). Although this is not the cose in this opplicotion, given thot Counsel Nicholos Mwosome olthough on Advocote in the Firm representing the 2nd & 3rd Respondents is not directly prosecuting the motter.

However, the Low reloting to sweoring Affidovits hos been tested by Courts in o number of coses. The principle is thot sove in representotive suits where the porty who obtoins the Order to file the suit con sweor offidovits binding on others on whose beholf the suit is brought, it does not opply otherwise. Where on Affidovit is sworn on one's beholf ond on beholf of others, there

'13 lv'\*.

is need to prove thot the olhers oulhorized the deponent to sweor on their beholf. Proof of such outhorizotion is by o written document otioched to the Affidovit. This irregulority renders the Affidovit defective ond the Applicotion incompetent. (See. Ioremwo Kqmishqni &Ors V Atlorney Generol M. A 0038/20I2;Mokerere Universily V Sl. Mork Educolions lnslilute HCCS No.378/1993;Koingono V Dobo BoubonF9S6lHCB 59).

However, the question thot still remoins is whether on Advocote cqn cosuolly sweor on offidovit on beholf of his Firm's client without formol instructions to do so. lt is my considered view ihot being conversont with focls of o given opplicotion olone does not cloth one with the outhority to sweor evidence on beholf of onother. There must be some form of outhorizotion in writing giving the deponent such outhori.ly ond to hold otherwise would tontomount to giving o leewoy to oll ond sundry io cosuolly purport to bind persons who moy not hove given them express instructions to do so. There ore situotions where on odvocote con depone offidovits on beholf of his client especiolly if the motters ore noncontentious. However, 1o ollow qdvocotes to become substitutes for their clients just becouse they hove knowledge of the subject motter os well os instructions would be chootic. The requirement for formol outhorizqtion should even be stricter where the persons purportedly represented ore Componies os it is in this opplicotion. lnstructions given to o Firm to represent o client do not outomoticolly include instruclions to depone offidovits on beholf of the some clients ond the two oughl to be seporoied. Accordingly, the offidavit in reply deponed by Counsel Nicholos Mwesqme purportedly on behqlf of the 2nd & 3rd Respondents is struck out for the

reason that no such evidence of authorization has been brought to the attention of this court.

The affidavit sworn by Counsel Kirima Brian purportedly on behalf of the 1st Respondent suffers the same fate as it is clearly in respect of contentious issues between the parties. The objections raised by the Applicant in that respect is upheld. It should be noted however that the right to raise a point of law is not dependent on whether the respondent has filed an affidavit in reply or not.

Consequently, I do not need to delve into the merits or demerits of the instant application since my findings above have the effect of disposing of the entire application. Consequently, this application is dismissed. Since all parties had their own transgressions as indicated above, each party shall bear its own costs.

Dated at Kampala this .................................... Hnne. ................ 2022

Flavian Zeija (PhD)

PRINCIPLE JUDGE