[1994] UGHC 63

Egouda - Ntevide le HON Mr Justice

THE REPUBLIC OF UGANDA

IN THE HIGH COUPT OF UGANDA AT KALFALA

## CIVIL SUIT NO. 45 OF 1994

COMBINED BUILDING CO. LTD. APPLICANT/DEFENDANT. . . . . . . . . . .

VERSUS

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RESPONDENT/PLAINTIFF.

$\mathbf{1}$ MUKASA LUBANGA

EDITA NABAYINDA $\overline{2}$

**NAMUSAZI** $3.$

AGALONI MUBIRU 4.

BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

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## ORDER

This is an application by Notice of Motion under 0.33 Rules 3 and 4 of the Civil Procedure Rules. By this motion the applicant seeks orders of this court for unbonditional leave to defend the suit.

In the main suit the respondents are plaintiffs while the applicant is the defendant. The respondents instituted the suit to recover rent arrears since 1975 amounting to Shs. $20,000,000/=$ and for an order for forfeiture.

The Notice of Motion contains four grounds and is supported by affidavit of Mohamed Allibhai affirmed on 12th May, 1994 supplimented by another affidavit sworn on 13th May, 1994 by Mrs. Ruth Namirembe-Olijo, Legal Secretary of Departed Asians Property Custodian Board.

There is an affidavit in reply sworn by the first respondent Mukasa Lubanga.

The 4 grounds in support of the motion as they appear in the Notice state:

- That the suit was improperly brought by Summary $!!(i)$ Procedure since 0 33 CrR - does not cover Lossor Lessee relationship. - That since ordinary summons were served in this. $(ii)$ suit the suit no longer comes within 0.33 Civil Procedure Rules and falls to be treated as an ordinary suit.

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- (iii) That the defendant/applicant is both willing and able to pay the ground rent and all arrears and the plaintiff/respondent is not entitled to forfeiture of the defendant/applicant's lease. - That the breaches of convenant complained of were $(iv)$ occasioned by circumstances beyond the defendant/ applicant's control namely; the expulson of Asians in 1972."

I should state traight away that the first ground is misconceived and baseless.

There is a matter which was raised by counsel for the respondent about the affidavits of Mohamed Allibhai and Mrs. Ruth Namirembe-Olijo, I should dispose of this first.

Mr. Mutyaba learned counsel for the respondents contends in effect that the two affidavits are valueless for purposes of this application.

Concerning Allibhai's affidavit, learned counsel contended that Allibhai had no power to swear his affidavit in support of the Notice of Motion because the power of Attorney under which he purported to swear his affidavit was given by the donor for some other purposes and not in respect of management of the premises in dispute.

I have studied the power of Attorney and I agree with counsel for the respondent that that power was limited to plot No. 105, Makerere Road, Kampala and did not extend to the suit properties. And in any case for only purposes of execution of the signature of donor of the powers.

With regard to Mrs. Ruth Namirembe-Olijo's affidavit, counsel for the applicant submits that it was not mentioned in the Notice of Motion and was not served upon the respondent. Mr. Mukasa for the applicant contends that the affidavit was served. He asserted that since it is on court file, I should consider it.

Both counsel were somewhat unhelpful. Applicant's counsel should have sought leave to amend his Notice of Motion so as to $...$ $...$ $/3$

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incorporate therein Namirembe's affidavit. Further he halfheartedly sought leave to .serve the Namirembe's affidavit. But at the same time asserted that service must have been made. This is absurd. Moreover Namirembe's affidavit sworn on 13th May, 199^ doesn't show that in fact it was lodged officially in the registry. It has no registry stamp. It was not noted on the cover of the case file. In these circumstances I will ignore it. Civil Registry and advocates are increasingly tending to ignore all proper procedures of instituting and or lodging any court documents.

As a matter of fact this also applies to the affidavit of Allibhai- It seems to have been sworn on 12th May, 199\*+ after the Notice of Motion had been filed on 9th May, 1.994. That explains why each affidavit is not attached to the Notice of Motion at all even though the Notice of Motion purposes to have had the same affidavit annexed. Thus the Notice of Motion is misleading,

I could have dismissed this application because of lack of supporting affidavits or evidence.

However there are two matters which I am compelled to consider.»

First the summons used in the case is neither that in Form ⁴ of Appendex ^A to the Civil Procedure Rules nor one similar to it. It is ^a summons to enter appearance. As ^a result, the applicant entered appearance. So the applicant took two steps: Entering appearance and filing Notice of Motion. I know that 0.33 Rule ³ states that the court should cause the appropriate summons to be served with the plaint. But I also know that in fact ilt is advocates or plaintiffs who present the plaint and the summons for filing. Thus plaintiffs' counsel beors some .blame for issue of improper summons.

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Again in para ⁵ of affidavit in reply, Mr. Mukasa refers to ^a letter dated ²⁰ th August, ¹⁹⁹³ annexed to his affidavit. That letter gives the impression that in fact the suit property is being managed by Departed Asians Property Custodian Board, though illegally. This in effect augments the application to the effect that failure to pay rent was caused by circumstances beyond the control of the applicant. Normally triable issues should be raised by clear evidence supporting bona fide application. In this case I think that the fact that premises were under management of Departed Asians Property Custodian Board raise trial'lC-^ issues.

I accordingly allow the application. Since the applicant is willing to. pay the arrears of rent it should pay it before filing its Written. Statement of Defence.

The applicant is ordered to file Written Statement of Defence within ten (10) ciajs from vxlay•\*

'TSEKOOKO ' O

JUDGE 22/6/199^.

24/6/199^ at 9.03 a.m. Karugaba for applicants. Mutyaba for respondents. Ssensonga court clerk. Ruling delivered^o

SJ ^U ^D ^G ^E J.. W. N. TSEKOOKO 2V6/1991\*