[2023] UGHCCD 218

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC. APPLICATION NO. 0001 OF 2023 (ARISING FROM MISC. CAUSE NO. 006 OF 2021)** 5 **CIRCLE VENTURES LIMITED ::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

## **1. KASESE DISTRICT LAND BOARD ::::::::::::::::::: RESPONDENTS 2. M/S KAAHWA, KAFUUZI & BWIRUKA ADVOCATES**

## **BEFORE HON. JUSTICE VINCENT WAGONA** 10 **RULING**

**Introduction:**

The application brought under Section 82 and 98 of the Civil Procedure Act and Order 46 rule 1, 2 and 6 and Order 52 rule 1 and 2 of the Civil Procedure Rules for sought orders that:

15 **1. The ruling in Misc. Cause No. 006 of 2021 be reviewed with orders to the effect that Circle Ventures Limited, the Applicant never instructed anyone to institute Misc. Cause No. 006 of 2021 and therefore the ruling and orders made against the applicant in the said application be set aside.**

20 **2. That the costs of taking out the application be provided to the Applicant.**

**Grounds and evidence of the Applicant:**


The grounds of application are stated in the Notice of Motion and particularized in the in the affidavit of Plaxeda Namirimu and are as follows:

- 1. That she is a director of the Applicant's company which is duly registered in Uganda under the Companies Act. - 5 - 2. That in 2021, the Applicant did not meet to resolve on instituting a suit or Misc. Cause in any court in Uganda and neither did they instruct any law firm to institute a case on its behalf. - 10 3. That as proof, the Applicant did not authorize any of the Applicants in Misc. Cause No. 006 of 2021 to depone an affidavit on its behalf. - 4. That upon getting knowledge of the said suit, the Applicant wrote a letter to the Resident Judge distancing itself from the said application on 19th November 2021 and to the 2nd 15 Respondent who duly acknowledged the same. - 5. That despite the clarification, court went ahead and delivered a ruling on 5 th September 2022 with orders affecting the applicant yet he never instructed 20 any person to act on her behalf. - 6. That the applicant is aggrieved by the ruling of court in Misc. Cause No. 006 of 2021 and the orders therein. That there is an error apparent on court record which is a ground for review.


- 7. That the 2nd Respondent acted without instructions from the Applicant thus rending the Misc. Application No. 006 of 2021 incompetent. - 8. That the Applicant was brought without inordinate delay and it is in the 5 interests of justice that the application is granted.

#### **Reply and evidence of the 1st Respondent:**

The Application was opposed by the 1 st Respondent who contended thus:

- 1. That the applicant duly filed Misc. Application No. 006 of 2021 together 10 with others through the affidavit in support of the application deponed by a one Kasozi Dembe Godfrey. That the Applicant does not dispute the said Kasozi being a shareholder and director. That a shareholder/director is clothed with capacity to act on behalf of the Applicant. - 15 2. That there is no illegality, mistake or error apparent on the face of the record to warrant a review of the decision of Court in Misc. Application No. 006 of 2021. - 3. That it is in the interests of justice that the application is dismissed with costs to the 1 st 20 Respondent.

### **Reply and evidence of the 2nd Respondent:**

The application was further opposed by the 2 nd Respondent who contended as follows:


- 1. That the Applicant together with Kasozi Dembe Godfrey, Rwenzori Gardens Hotel Ltd, Karusandra Devt Association, Karu Devt Co-operative Society and Besigye Benard gave instructions to the 2nd Respondent to apply for judicial review and according the 2nd Respondent filed Misc. Cause No. 06 5 of 2021. - 2. That one Kasozi Dembe Godfrey deponed an affifdavit in support of the said application and under paragraph 1, he stated that he was a shareholder and director of the Applicant's company. That through Kasozi Dembe, the applicant availed to the 2nd 10 Respodent documents in support of her case. - 3. That the current application is incompetent since it is supported by an incompetent affidavit which is full of falsehoods and thus should be struck out with costs. That Plaxeda did not attach any evidence as confirmation that 15 she is a director of the applicant. That Plaxeda was aware of Misc. Cause No. 06 of 2021 and the decision there from. - 4. That there was inordinate delay in fling the application at hand. That the application at hand has no merit and the same should be dismissed with 20 costs.

### **Rejoinder of the Applicant:**

In rejoinder plaxeda Namirimu further averred thus:

(1)That at trial, a point of law was to be raised on the competence of the 1 st Respondent's affidavit in reply for being undated. That it is not true that


Kasozi Dember Godfrey is a director or shareholder of the Applicant and as such he lacked the locus to depone an affidavit on behalf of the Applicant.

(2)That the Applicant in 2021 did not meet or resolve to institute the case at hand or instruct the 2nd 5 Respondent. That a suit by a company must be instituted following a resolution by a company. That the affidavit in reply is defective and it is in the interests of justice that this application is allowed.

#### **Representation:**

M/s Masereka C & Co. Advocates appeared for the Applicant while M/s MRK

Advocates for the 1 st 10 Respondent and M/s Sibendire, Tayebwa & Co. Advocates for the 2 nd Respondent. Both parties proceeded by way of written submissions which I have considered.

#### **Issues:**

- 15 **1. Whether the Affidavit in support of the Application is defective and thus liable to be struck out.** - **2. Whether the 1 st Respondents affidavit in reply is defective and liable to be struck out.** - **3. Whether the Applicant is an aggrieved party within the meaning of** 20 **section 82 of Civil Procedure Act.**

- **4. Whether this application meets the test for grant of a review.** - **5. What remedies are available to the parties.**

**Submissions of the Parties:**


I will consider issue one and two concurrently since they relate to the same thing.

**Issue No. 1: Whether the Affidavit in support of the Application is defective and thus liable to be struck out.**

**Issue No. 2: Whether the 1** 5 **st Respondents affidavit in reply is defective and liable to be struck out.**

#### **Submissions of the Applicant:**

The 2nd Respondent's affidavit is defective for failure to indicate the date it was 10 deponed. Section 5 and 6 of the Oaths Ac Cap 19 are to the effect that an oath taken before the commissioner of oaths must state the date and place where such affifavit was sworn.

In **Church of Almighty God Malaki Vs. Administrator General, Misc.** 15 **Application No. 92 of 2009** the Hon. Justice Mulangira held that an affidavit which is not dated offends the law and as such cannot stand (See also **Duke of Brunswick Vs. Slowman and ors (1949) 137 ER 649**).

Court should have to have the affidavit in reply for the 1 st Respondent defective 20 and to strike out the same with costs to the Applicant.

#### **Submissions of the 2 nd Respondent:**

The affidavit in support of the Application is defective on ground that it offends section 5 of the Commissioner for Oaths Act. Section 5 states that: "Every 25 Commissioner for Oaths before whom any oath or affidavit is taken or made under


this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit in taken or made". The affidavit of Plaxeda Namirimu has not jurat and the attached documents have no identification.

- 5 In **Attorney General Vs. A. K OM Lutaaya SCCA No. 1 of 2007,** Itsekooko J (as he then was) held that an affidavit that is not sworn is not an affidavit. It is not a mere technicality which is curable. It is a substantive defect. The person who signed on the affidavit has not shown his or her name. The affidavit only shows the date which is altered and the commissioner before whom the affidavit is sworn 10 does not state his or her name in latin character. The affidavit is incurably defective - and thus should be struck out and consequently the application dismissed with costs.

#### **CONSIDERATION BY COURT:**

I will start with the point of law by the 2nd 15 Respondent on the competency of the Applicant's affidavit in support.

Section 5 of the Commissioner for Oaths Act states that: *Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under* 20 *this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.*

Section 5 of the Commissioner for Oaths Act on the other hand provides thus: *Every commissioner for oaths before whom any oath or affidavit is taken or made*


*under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.*

In both sections, the deponent should indicate in the affidavit the place where the 5 same was sworn and the date on which it was sworn. However, both sections do not provide the sanctions for noncompliance; as such the omission or failure to do so can be treated as a mere technicality which is curable under Article 126 (2) (e) of the 1995 Constitution.

10 In **Gordon Sentiba & 2 others Vs. Inspector General of Government, Civil Appeal No. 14 of 2007***, Kitumba J observed thus:*

*"There is no place stated in the jurat in the affidavit of Lady Justice Mwondha of the 14th February 2007. The learned trial judge did not find that to be a fatal defect because there were sufficient particulars in the* 15 *affidavit itself to show that it was drafted at Kampala. The judge observed that there is no penalty provided for noncompliance with section 6 of the Oaths Act.*

*I agree with the learned judge's observations and finding. Additionally, I am of the considered view that failure to state in the jurat the place at* 20 *which, the affidavit was sworn, can be ascertained from the body of the affidavit is a mere technicality. Such a failure must not deter court from administering substantive justice as provided by Article 126 (2) (e) of the Constitution."*

25 In this case the affidavit complained of states as follows:


*"I Plaxeda Namirimu of C/o Masereka C & Co. Advocates, Dr. Bwambale Henry Road, Kasese Municipal Council, P. O. Box, 564, Kasese do solemnly swear and state as follows***.**

5 *1. That I am a female adult Ugandan of sound mind and a Director of the Applicant herein / Circle Ventures Ltd and I swear this affidavit in that capacity.*

*……………………………………………………………………………… ………………………………………………………………………………... Dated at Fort-portal this 22nd* 10 *day of December 2022.*

*………………………………*

*DEPONENT*

*BEFORE ME: ……………………………..*

15 *MAGISTRATE / COMMISSIONER FOR OATHS*

In this case, the affidavit states that the deponent solemnly swears, demonstrating that she is giving the evidence on oath. The affidavit is dated at Fort-portal and bears the signature of the deponent. The affidavit states that it is made before a 20 Magistrate / Commissioner for oaths and bears the signature of a Magistrate and stamp (seal) of Fort-portal High Court. The High Court at Fort-portal has 2 Magistrates attached to the High Court.

I am satisfied based on the above evidence that the affidavit was deponed before a 25 Magistrate at Fort-portal High Court. In the circumstances of this case, I find that


**9 |** P a g e the omission of the words *"sworn at Fort Portal"* and the omission to state the name of the deponent at the end of the content of the affidavit is not fatal. It is clearly ascertainable from the body of the affidavit that Plaxeda Namirimu was the deponent.

I therefore find no merit in the point of law raised by counsel for the 2nd Respondent and it is hereby overruled.

In the same view I overrule the point of law raised by Counsel Masereka Chan, 10 counsel for the Applicant in relation to failure to state the date on which the affidavit was deponed. The Sections relied upon do not state the consequences of the failure to state the date.

It is ascertainable from the 1st respondent's affidavit in reply was replying to the

- affidavit of Plaxeda Namirimu dated 22 15 nd December 2022 that was filed in court on 09 January 2023. The affidavit in reply was filed in court on 01 March 2023. It means that the affidavit in reply was sworn some time immediately before or on 01 March 2023. - 20 Adopting the guidance by Kitumba J (as she then was) in **Gordon Sentimba (supra)**, I find that such omission is a mere technicality which did not cause any injustice to the applicant. Therefore, I am inclined to hold that the omission to include a date on which the affidavit was deponed in my view is curable under Article 126 (2) (e) of the Constitution and I accordingly overrule the point of law and validate the affidavit in reply by the 1 st 25 Respondent.


# **Issues No. 3: Whether the applicant's application meets the criteria for grant of a review**

# **Submissions of the Applicant:**

- 5 Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules are to the effect that any person aggrieved by a decision of court from which an appeal is allowed may apply for review of the judgment to the court that made the decision. The court may upon proof of the conditions set in Order 46 (1) (b) grant a review. The conditions include, discovery of new and important matter of evidence 10 which after due diligence was to in a party's knowledge or could not be produced - in court without undue delay; mistake or error apparent on the face of the court record; or any other sufficient cause.

There is an error apparent on the face of the court record. The term mistake or error 15 apparent on the fact of the record refers to an error which does not require extraneous matters to show its incorrectness. It is an error that is so manifest that no court would permit such an error to remain on its record **(Al Shafi Investment Group LCC Vs. Ahmed Darwish & Anor, Misc. Application 901 of 2017).**

The applicant did not instruct the 2 nd 20 Respondent to file the suit on their behalf. The suit was not filed in a representative capacity and after learning of it, the applicant wrote a letter to that effect which was never acted upon by court. To the Applicant's dismay, court delivered a judgment against the Applicant.


The person by the names of Kasozi Dember Godfrey who deponed an affidavit on behalf of the applicant did not have the required authority from the applicant and none was attached. Such affidavit without the written authority of the Applicant was defective by virtue of order 1 rule 10 (2) of the Civil Procedure Rules **(Lena**

5 **Nakalema Binaisa & 3 others Vs. Mucunguzi Myers, Misc, Application No. 0469 of 2013).**

The affidavit in support of the application was defective on such basis and thus the preceding proceedings were equally defective. It is trite law that an error on a 10 substantial point stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out **(Ojijo Pascal Vs. Geofrey Brown, HCMA 758 of 2017).** This illegality warrants a review and setting aside the decision of this court in Misc. Application No. 006 of 2021.


There is sufficient cause warranting the review of the orders of court in Misc. Cause No. 006 of 2021. The applicant did not institute the said application neither did they authorize any person to do so on their behalf. The applicant never instructed Mr. Bwiruka, an advocate of the 2 nd Respondent to institute the said 20 application. This is sufficient cause to warrant a review of the ruling of this court in misc. cause no. 006 of 2021.

In **Re Nakivubo Chemists (U) Ltd [1979] HCB 12** court observed that: "expression sufficient cause should be read as meaning sufficiently of a kind analogous to the discovery of new and important matter of evidence previously


overlooked by excusable misfortune and some mistake or error apparent on the face of the record.".

Misc. Cause No. 06 of 2021 was instituted without instructions from the applicant 5 contrary to the Advocates Act and the regulations made there under, specifically regulation 2 which is to the effect that an advocate shall not act for any person unless he or she has received instructions from that person or his or her duly authorized agent.

10 The position in regulation 2 of the Advocates regulations was given judicial consideration by Justice Henry I Kawesa in **Okodoi George Vs, Okello Opaire Sam HCMA 143 of 2016** thus; "*What is the practical meaning of that provision, in my opinion the onus is on the advocate instructed to take steps to make it known to all concerned that he/she has been duly instructed. The prudent advocate in* 15 *practice is to take out a notice of instruction informing court and the opposite counsel of such instructions."*

Justice Kawesa also cited the decision of **Kabale Housing Estate Tenants Association Vs. Kabale municipal council, Civil Appeal No. 15 of 2013** where it 20 was observed that a suit without instructions is incompetent.

In the case of **Danish Merchantile Co. Ltd Vs. Beamount & Anor (1951) Ch. CA 680** Jenkins LJ observed thus: *"I think that the true position is simply that a solicitor who starts proceedings in the name of a company without verifying* 25 *whether he has proper authority so to do, or under an erroneous assumption of*


*authority, does so at his own peril and so long as the matter rests there, the action is not properly constituted. In that sense it is a nullity and can be stayed at any time, provided that the aggrieved party does not unduly delay his application but it is open at any time to the purported plaintiff to ratify the act of the solicitor who*

5 *started the action to adopt the proceedings to approve all that has been done.."*

Misc. Application No. 006 of 2021 was started by the 2nd Respondent without authority and as such it was improper before court. It is in the interest of justice that this court finds sufficient reasons for reviewing its ruling **(Section 33 of the** 10 **Judicature Act).**

#### **Submissions of the 1 st Respondent:**

The applicant has not demonstrated any mistake or error apparent on the face of the record. No illegality has been pointed out or proven by the Applicant. As such 15 there is no legal basis upon which the ruling in Misc. Cause No. 006 of 2021 may be reviewed. The Applicant alleges that they never authorized the filing of the said application however it is deponed by Masereka Musabe, for the 1st Responde that one Kasozi Dembe Godfrey swore an affidavit on behalf of the applicant in the capacity of a shareholder and director. The Kasozi Dember Godfrey being a 20 director and shareholder is not a fact denied by the Applicant as such he was authorized to act on behalf of the applicant.

Section 51 of the Companies Act is to the effect that the validity of any act done by a company shall not be called into question on ground of lack of capacity by reason 25 of anything done in the company's memorandum. Section 52 (1) provides for the


power of the director to bind the company or authorize others to do so in the favour of any person dealing with the company in good faith shall not be limited by the companies memorandum.

- 5 Further under Section 53 of the Companies Act, a party to a transaction with the company is not bound to inquire whether it is permitted by the company's memorandum or as to any limitation on the powers of the board of directors to bind the company or authorize others to do so. - The 1st 10 Respondent was served with a notice of motion in which the applicant was named as a party. The 1st Respondent was not bound to inquire whether the said fling has been authorized by the applicant and the matter proceeded to finality.

It is not a requirement to pass a resolution to file a suit in court by virtue of Section

15 51, 52 and 53 of the Companies Act 2012. In the same vein the Applicant has not furnished court with a resolution to file the current application. It is thus not true that a company transacts through resolutions as alleged by Namirimu.

The applicant has not showed any cause to justify a review of the ruling of this 20 court in Misc. Cause No. 006 OF 2021. There is no mistake or error apparent on the face of the record or an illegality as alleged by the Applicant.

Counsel thus asked court to dismiss the suit with costs.

# **Submissions of the 2** 25 **ndRespondent:**


A review under Section 82 and order 43 of the Civil Procedure rules is pegged on discovery of new and important evidence which after exercise of due diligence was not within a party's knowledge or on account of some mistake or error apparent on the face of the record or any other sufficient case.

The applicant in this case was aware that Misc. Cause No. 06 of 2021 was filed and did not move court to suggest that it was not a party to the suit. The letter written on 18th November 2021 confirms that the applicant had full knowledge of the suit. The deponent of the affidavit in support of the application has not attached 10 proof to confirm that she is a director of the applicant with authority to depone the affidavit.

One Kasozi Dembe Godfrey deponed an affidavit as the director of the applicant in Misc. Cause No. 6 of 2021 and there is nothing to disprove this authority. The 2nd 15 Respondent was availed with documents in support of Misc. Cause No. 006 of 2021 and there is nothing to suggest that the 2nd Respondent never instituted the said cause without instructions.

In **Combined Services Ltd Vs. Attorney General, HCMA 200 of 2009**, 20 Kiryabwire J held that an error apparent on the face of the record is the kind of error that does not require extraneous matter to prove its incorrectness. He further noted that an application for review should be filed without unreasonable delay.

The issues raised in the application are not errors on the face of the record. That the applicant has to prove that it never instructed the 2nd 25 Respondent and one Kasozi


Dembe Godfrey is not a director of the applicant. The applicant had full knowledge way back in November 2021 and they did not apply to be removed before the ruling was delivered. There is nothing to review and court should be pleased to dismiss the application with costs.

# **Submissions of the Applicant in Rejoinder:**

It is trite law that a suit instituted in the names of a company without authority of the directors is incompetent. The principle was laid down in **Bugerere Coffee Growers Ltd Vs. Sebadduka & Anor [1970]E. A 147** where it was observed that:

10 *"when companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or board of directors meeting and recorded in the minutes."*

That the same principle was stated *in* **Makerere Properties Ltd Vs. Mansukhlal**

15 **Ranji Karia HCCS No. 32 of 1994 and in Masaka Tea Estates Vs. Samalia (Kiganja) Tea Estates Ltd & other HCMA No. 505 of 2004** where it was observed that a suit without authority of the directors is not maintainable in law and the same was truck off for want of authority. The same position was also sated in **Walugembe Lugobe & Co, Ltd.**

The institution of Misc. Cause No. 006 of 2021 was not with the knowledge and authority of the directors of the Applicant. One Dembe was not a director of the company and thus was not authorized to file Misc. Cause No. 006 of 2021 on behalf of the Applicant.


In **Rubaga Building Co. Ltd Vs. Fopal Deusi Vekaria & Anor HCCS No. 0534 of 2012** court noted that; "*The other consequence of the above holding is that the other issues dot not arise as there is no suit properly before me. In the end this suit is dismissed. Since the plaintiff company did not authorize the institution of this*

5 *suit, it cannot be ordered to pay costs, Muhammed Allibhai who instituted the same shall instead pay costs personally."*

Counsel relying on the above authority asked court to review the orders of court in Misc. Cause No. 06 of 2021 on the grounds that the applicant never authorized the 10 institution of the suit and have them struck off as a party to the said application.

### **CONSIDERATION BY COURT:**

**Issue No. 3: Whether the Applicant is an aggrieved party within the meaning** 15 **of section 82 of the Civil Procedure Act.**

Section 82 of the Civil Procedure Act states that:

*Any person considering himself or herself aggrieved—*

*(a)by a decree or order from which an appeal is allowed by this Act, but* 20 *from which no appeal has been preferred; or*

*(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or* 25 *order as it thinks fit.*


**18 |** P a g e Order 46 of the Civil Procedure Rules also states to the effect that a person to apply for review should be one that is aggrieved by the decision of court.

- 5 Section 82 of the Civil Procedure Act and order 43 of the Civil Procedure Rules do not define who an aggrieved party is and the parameters of such. Under case law, the terms as to who is an aggrieved party, have been given considerable judicial consideration. In **Re Nakivubo Chemists (U) Ltd [1979] HCB 12** an aggrieved party for the purpose of was defined as a person who has suffered a legal 10 grievance. Further guidance was given by Karokora JSC (as he then was) in - **Muhammed Bukenya Allibai Vs. W. E Bukenya& Anor, SCCA No. 56 of 1996** where he observed that a person suffers a legal grievance if the judgment is given against him or his interest. - 15 It is contended by the applicant that a ruling was delivered in Misc. Cause No.006 of 2021 where she never authorized any person to act on her behalf. That in the said ruling, the Applicant was condemned to pay costs. It was never contested by the Respondent that the Respondent was an aggrieved party. - 20 I find that the applicant is an aggrieved party within the meaning of Section 82 of the Civil Procedure Act. I thus resolve the first issue in the affirmative.

## **Issue No. 4: Whether this application meets the test for grant of a review.**


In this case the court handled Misc. Cause No. 006 of 2021 where the applicants herein were listed as the 2nd applicant. The application was dismissed with costs awarded to the respondents Kasese District Land Board in a ruling dated 5th September 2022. Apparently, the letter of the applicants dated 18th November 2021

and filed in court on 19 5 th November 2021 protesting their inclusion as a party, on the grounds that they had never instructed anyone to institute the application, was not actively brought to the attention of the judge.

Order 46 (1) of the Civil Procedure Rules limits review upon proof of the 10 following grounds:

> *a) The discovery of new and important matter of evidence which after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made; or,*

15 *b) On account of some mistake or error apparent on the face of the record; or,*

*c) For any other sufficient reason.*

The contention by the Applicant is centered on two grounds that is; a mistake or 20 error apparent on the face of the record and sufficient cause.

## **Mistake or error apparent on the face of the record:**

The term mistake or error apparent on the court record is equally not defined by the Civil Procedure Rules. As such reliance is made on case law. In **Nyamogo &**


**Nyamogo Advocates v. Kago [2001] 2 EA 173** the term an error apparent on the court of record was described thus:

*"An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its* 5 *very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record* 10 *would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even* 15 *though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal"*

In **Edison Kanvabwera v. Pastori Tumwebaze SC CA No. 6 of 2004**, it was held that the error in review proceedings could be one of fact or one of law. The 20 Supreme Court in the **Kanyabwera** case cited with approval **A. I. R. Commentaries: The Code of Civil Procedure by Manohar and Chitaley, vol. 5. 1908** where it is stated that in order that an error may be a ground for review, it must be one apparent on the face of the record i.e. an evident error which does not require any extraneous matter to show its correctness. It must be an error so


manifest and clear that no court would permit such an error to remain on the record.

The phrase error on the face of the record was further explained in the **East** 5 **African Court of Justice (Appellate Division) decision of Independent Medico Legal Unit v. The Attorney General of the Republic of Kenya {Application No. 2 of 2012**; **Arising from Appeal No.1 of 2011} cited in MK Creditors Ltd vs. Owora Patrick MA No. 143 of 2015**. There, the term error apparent on face of the record was explained thus:

10 *"The expression error apparent on the face of the record" has not been definitively defined by statute. It must be determined by courts sparingly and with great caution. The "error apparent" must be self-evident; not one that has to be detected by a process of reasoning. No error can be an error apparent where one has to travel beyond the record to see the correctness* 15 *of the judgment. It must be an error which strikes one by mere looking at the record, and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. That a clear case of error apparent on the face of the record is made out where, without elaborate argument, one could point to the error and say, here is a* 20 *substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it. It must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish."*


The applicant contended that there is an error apparent on the face of the record of court on account that they never authorized any person to file Misc. Cause No. 006 of 2021 on their behalf; that they never instructed the 2nd Respondent as a law firm to file the said suit on their behalf. It is contended that one Kasozi Dembe Godfrey 5 was not authorized by the Applicant to represent them in Misc. Cause No. 006 of 2021.

The 1st Respondent on the other hand contended that they were a respondent and not required to inquire into the capacity of the Applicant to file Misc. Cause No. 10 006 of 2021. That Sections 51, 52 and 53 of the Companies Act are to the effect that a person dealing with a company is not required to inquire into the internal

management of the company and a resolution is not required to institute a suit.

The 2nd Respondent on their part averred that they were instructed by the Applicant 15 through one Kasozi Dembe Godfrey who was a director of the Applicant. It was their position that the said Kasozi Dembe deponed an affidavit on behalf of the Applicant and availed documents on which the claim was premised. That the Applicant duly instructed the 2 nd Respondent and was all aware of the existence of Misc. Cause No. 006 of 2021 and thus the current application has no merit.

The contestation between the parties herein relate to the legality of the proceedings in Misc. Cause No. 006 of 2021 as against the Applicant.

The Applicant's contention is that she never authorized any person to file a suit on its behalf as well as the 2nd 25 Respondent. The establishment of this in my view does


not require a lot of legal reasoning and debate. I believe this is a matter which can be handled under review.

Order 29 rule 1 of the Civil Procedure Rules provides thus: *In a suit by or against* 5 *a corporation any pleading may be signed on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case*.

Kawesa J in **Rubaga Building Company Ltd Vs. Gopal Devsi Vekaria & Anor,**

10 **HCMA 534 of 2014** noted that: "*It is trite law that a suit instituted in the names of a company without the authority of the directors is incompetent*."

In **Bugerere Coffee Growers Ltd versus Sebadduka & Anor [1970] 1EA 147***,* it was held, in dismissing the suit, that when companies authorize the 15 commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors meeting and recorded in the minutes, but no resolution had been passed authorizing the proceedings in the case. The Court held further that where an advocate has brought legal proceedings without authority of the purported plaintiff the advocate becomes personally liable to the 20 defendants for the costs of the action.

A similar position was taken in **Makerere Properties Ltdversus Mansukhlal Ranji Karia; HCCS No.32 of 1994**, where it was noted that authority to file a suit by a company extended to situations were an Advocate purports to commence proceedings in the name and on behalf of a company without authority.


**Hewett, J.** in **Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd HCCC No. 391 of 2000** as observed in relation to this issue as follows: *"It is settled law that where a suit is to be instituted for and on behalf of a company there should be a company resolution to that effect…….. As regards litigation by an* 5 *incorporated company, the directors are as a rule, the persons who have the authority to act for the company; but in the absence of any contract to the contrary in the articles of association, the majority of the members of the company are entitled to decide even to the extent of overruling the directors, whether an action in the name of the company should be commenced or allowed*

10 *to proceed. The secretary of the company cannot institute proceedings in the name of the company in the absence of express authority to do so; but proceedings started without proper authority may subsequently be ratified."*

In the case before me, the applicant attached a copy of the form for directors as

15 **Annexure "A"** to the affidavit in rejoinder and its directors as per the said form are: **Plaxeda Namirimu, Caroline Kintu and Margret Katusiime Bakeine**.

The one who deponed the affidavit on behalf of the Applicant as per a copy of the affidavit attached as **Annexure A1** to the 2 nd Respondent's affidavit in reply is Mr. 20 Kasozi Dembe Godfrey. The said Dembe indicated that he was a director and shareholder of the Applicant. However, as per **Form 20** attached to the Applicant's affidavit in reply, he is not indicated as a director of the Applicant. Therefore, by virtue of Order 29 rule 1 of the Civil Procedure Rules, the said Dembe lacked capacity to depone an affidavit on behalf of the applicant and as such Dembe 's 25 affidavit was defective as against the Applicant.


Secondly, there was no authorization given to the 2 nd Respondent or Mr. Kasozi Dembe Godfrey to commence Misc. Cause No. 006 of 2021 on behalf of the Applicant. No such authorization was filed subsequent to filing Misc. Cause No.

5 006 of 2021 or attached to the affidavits in reply by the Respondent.

It is thus apparent from the face of the record of court that there was no such authorization to commence Misc. Cause No. 006 of 2021 on behalf of the Applicant. This finding does not require a lot of debate and reasoning as it is 10 apparent from the face of the record of court that such authorization by way of resolution was not secured prior to institution of the suit. It does not require me to travel beyond the court record to see this error.

The Applicant had taken steps to inform court through the letter dated 18th November 2021 filed in court on 19 15 th November 2021 but the same was apparently not actively brought to the attention of the judge. I am satisfied that the Applicant disassociated itself in time before the determination of Misc. Cause No. 006 of 2021. It is apparent on the face of the record that the person who signed an affidavit purporting to do so, on behalf of the Applicant lacked capacity to do so. 20 Secondly, it is also apparent on the face of the record that there was no proper authorization by the Applicant to the 2nd Respondent and one Kasozi Dembe to commence proceedings in Misc. Cause No. 006 of 2021 on their behalf. These errors and illegalities cannot be left to stand on the record of court.

I therefore find that this is a proper case for review and the Applicant has proved 25 that there is an error apparent on the face of the record warranting a review of the


decision of court in Misc. Cause No. 006 of 2021. This Application therefore succeeds with the following orders:

- **1. The applicant is struck out as a party in Civil Misc. Cause No. 006 of 2021.** - 5 **2. The orders in Civil Misc. Cause No.006 of 2021 shall have no effect upon the Applicant.** - **3. The Costs awarded in Misc. Cause No. 006 of 2021 as against the Applicant shall be met by Kasozi Dembe Godfrey who purported to act on behalf of the Applicant.** - 10 **4. The applicant is denied the costs of this application on the grounds of their delay and infective use of letters (as opposed to filing a formal application) in challenging their inclusion in Misc. Cause No. 006 of 2021. Therefore, each party shall bear own costs.**

**It is so ordered**

**Dated at High Court Fort-portal this 8th day of June 2023**

Vincent Wagona **High Court Judge / FORT-PORTAL**