[2023] UGCommC 127

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (COMMERCIAL DIVISION)

## **MISCELLANEOUS APPLICATION NO.2034 OF 2023**

### (ARISING FROM EMA NO.310 OF 2023)

# (ARISING FROM MISCELLANEOUS APPLICATION NO.555 OF 2022)

## (ALL ARISING FROM CIVIL SUIT NO.630 OF 2012)

#### 1. KAMUGISHA ANATOLI

2. ANNA KAMUGISHA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# H & L EXPORTERS (U) LTD :::::::::::::::::::::::::::::::::::

# BEFORE: HON. LADY JUSTICE PATIENCE T. E RUBAGUMYA

#### **RULING**

#### Introduction

This application was brought by Notice of Motion under Section 33 of the Judicature Act Cap.13, Section 98 of the Civil Procedure Act Cap 71, Order 22 Rules 23(1) and 25 of the Civil Procedure Rules S1 71-1, seeking for;

- 1. An order for stay of execution of the ruling and orders in Misc. Application No.555 of 2022 and Judgment and Decree in Civil Suit No.630 of 2012 doth issue against the Respondent pending the decision from the Court of Appeal of Uganda in Civil Appeal No. CL.1004-2023 or until further orders thereof. - 2. Costs of the application be provided for.

#### **Background**

The grounds of the application are detailed in the affidavit in support by Anna Kamugisha, the 2^nd Applicant herein but briefly are that;

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- 1. The Applicants were the $2^{nd}$ and $3^{rd}$ Respondents in Misc. Application No. 555 of 2022 in the High Court of Uganda (Commercial Division) in which the Ruling was entered against the Respondents. - 2. The Respondent instituted Civil Suit No. 630 of 2012 against the Akright Housing Projects and the 2^nd Applicant for recovery of USD 38,544 (United States Dollars Thirty-Eight Thousand Five Hundred Forty-Four). - 3. Under the said Civil Suit No. 630 of 2012, a one Geoffrey Kavuma, of M/s Okello-Oryem & Co. Advocates purporting to be Counsel of the Defendant endorsed and executed a Consent Judgment/Decree without the authority or consent of Akright Projects Limited or the Applicants. - 4. The Applicants being dissatisfied with the whole decision of the learned trial Judge, have now lodged an appeal against the said Ruling to the Court of Appeal. - 5. The Applicants have instituted Misc. Application No.2047 of 2023 (Arising out of Civil Suit No.630 of 2012) for review of the Consent Judgment purportedly executed on 14^th of July 2014, which is pending determination before this Court. - 6. Following the institution of the application for execution vide HCT-00-CC-EMA-0310-2023 against the Applicants, the Applicants have instructed their lawyers M/s Tumusiime, Irumba & Co. Advocates to pursue and complete the appeal process. - 7. The Applicants stand to suffer substantial and irreparable loss and that the appeal shall be rendered nugatory if execution of the Order is not stayed.

The Respondent through Gafar Janak Persaud, its Director, made a reply opposing the application and averred that;

1. He has been advised by his lawyers M/s Anguria & Co. Advocates that the Respondent shall at the earliest time raise a preliminary point of law that the Applicants are estopped from denying the contents of a Consent Judgment/Decree.

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- 2. The contents of paragraph 4 of the affidavit in support of the application are not true. That the Respondent instituted Civil Suit No.630 of 2012 against Akright Housing Project where the Applicants are Directors for recovery of a sum of USD 38,544. - 3. When the cheque bounced, the Applicants as Directors of Akright Projects Limited secured the decretal sum in favour of the Respondent with land titles which upon survey, it was revealed that they were not substantial titles, which were in respect of road reserves and of no value. - 4. It is more than nine years since the Consent Judgment/Decree was executed with the Applicants as Directors in the Defendant Company and have never challenged the same and now are estopped from denying the fact that their lawyer then signed the Consent without the authority of the Applicants or their Company. - 5. The Applicants' appeal has no likelihood of success and it is a wastage of Court's time and intended to delay justice.

In the affidavit in rejoinder by Anna Kamugisha, the 2^nd Applicant maintained briefly that;

- 1. Whereas Civil Suit No. 630 of 2012 was instituted against Akright Housing Projects, the said Company was nonexistent and the Applicants were never served with any Court pleadings and neither were they part of the proceedings. - 2. The Applicants have never entered into a transaction with the Respondent Company and the Defendants in CS No. 630 of 2012 were an unknown Company and not Akright Projects Limited. - 3. She was informed by her lawyers that it would be in the interest of justice for this Court to grant a temporary injunction against the Respondent for stay of execution.

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#### **Representation**

The Applicants were represented by M/s Tumusiime, Irumba & Co. Advocates and the Respondent was represented by M/s Anguria & Co. Advocates.

Both parties were directed to file their written submissions which they did and the same have been considered by Court.

Before delving into the merits of the application, Counsel for the Respondent raised the following preliminary objections:

- a) That the affidavit in support of the application was not deponed before the Commissioner for Oaths in total violation of the law. - b) No leave was ever sought and granted by this Court for the Applicants to file an appeal.

As provided for under Order 6 Rule 8 of the Civil Procedure Rules, a point of law that is pleaded when so raised is capable of disposing of the suit, may by consent of the parties or by order of the Court on the application of either party, be set down for hearing and disposed of at any time before the hearing.

## $\ln$ Mukisa Biscuit Manufacturing Co Vs West End [1969] EA 696 at 701, Justice Sir Charles Newbold stated that;

"A preliminary objection raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is extrinsic evidence of judicial direction."

As to whether to dispose of a preliminary point first before hearing the merits of the matter, the Supreme Court in the case of *Uganda Telecom* Ltd Vs ZTE Corporation SCCA No.3 of 2017 held that a trial Court has discretion to dispose of a preliminary point either at or after the hearing.

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It is therefore trite that where there is a preliminary objection capable of disposing of the matter in issue, it is judicious to first determine the said objection before embarking on the merits of the case.

Considering the above provision, case law and the nature of the preliminary objections raised, I shall first handle the determination of the preliminary objections as raised.

# Whether failure by the deponent to appear before the Commissioner for Oaths when deponing an affidavit is fatal?

## **Respondent's submissions**

Learned Counsel for the Respondent submitted that on 22^nd September 2023, the 2^nd Applicant with authority to swear an affidavit on behalf of the 1^st Applicant appeared in Court for purposes of cross examination on the contents of her affidavit in support of an application for stay of execution. That during cross-examination, she testified that she never appeared before the Commissioner for Oaths while deponing her affidavit in support of the application.

He also submitted that Section 7 of the Commissioner for Oaths (Advocate) Act Cap.5 Laws of Uganda and Rule 7 of the Commissioner **for Oaths Rules** are to the effect that;

> "A Commissioner before taking an oath must satisfy himself or herself that the person named as the deponent and the person before him or her are the same and that the person is outwardly in a fit state to understand what he or she is doing."

Counsel further relied on the case of Kakooza John Baptist Vs Electoral Commission and Yiga Anthony, Supreme Court Election Petition Appeal No.11 of 2007 at page 27, Judgment of Katureebe **JSC**, in dismissing the ground of appeal held that;

"The practice where a deponent of an affidavit signs and forwards the affidavit to a commissioner for oaths without him being present is, in my view, a blatant violation of the law regarding making affidavits and must

not be condoned in anyway. The deponent of an affidavit must take oath and sign before the commissioner for oaths as required by law.

A commissioner who commissions an affidavit without seeing the deponent cannot say that the affidavit was taken or made before him, or her nor can he state truly in the jurat or attestation at what place or time the affidavit was taken or made. Equally the deponent cannot claim to have taken or made the affidavit before the commissioner for oaths".

In view of the above, Counsel prayed for the 2^nd Applicant's affidavit in support of this application to be struck off the record for failure to conform to the provisions of the law.

### Applicants' submissions in rejoinder

In reply, on the preliminary objection of whether failure by the deponent to appear before the Commissioner for Oaths when deponing an affidavit is fatal, Counsel for the Applicants submitted that during crossexamination, the 2^nd Applicant testified that she swore the affidavit in support before the Commissioner for Oaths at her lawyers' office. That her lawyers' office is situated at General Post Office Building, Kampala Road, the same building where Mr. Bamulutira Edward's office the Commissioner for Oaths is.

Learned Counsel for the Applicants further submitted that the $2^nd$ Applicant was aware that she was swearing the witness statement before a lawyer, the Commissioner for Oaths whom she testified that the affidavit was sworn before.

Referring to the case of Kakooza John Baptist Vs Electoral Commission and Yiga Anthony (supra), quoted by the Respondent's Counsel, he argued that the said case is distinguishable from this one. That in the former, the deponent signed the affidavit from Kampala and then sent it for commissioning, that it turned out it was commissioned from Masaka. However, that in this case, the affidavit was commissioned before the Commissioner for Oaths in the same building as the 2^nd Applicant's lawyers.

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Learned Counsel for the Applicants argued that misapprehension of the fact that the Commissioner for Oaths office being on the same premises with the Applicant's lawyer's premises whom the deponent swore the affidavit before and considering the fact that the affidavit is evidence and not pleadings, can be rectified, and in that way substantive justice would be guaranteed under Article 126(2)(e) of the Constitution and the innocent litigant is also protected.

# Respondent's submissions in rejoinder

Learned Counsel for the Respondent reiterated the earlier submissions that the deponent testified that she never appeared before the Commissioner for Oaths. Counsel prayed that the affidavit be struck off the record for not complying with the law as it is a mandatory requirement of substantive law that cannot be treated as a technicality.

# Determination of the first preliminary point of law

I have considered the evidence of the parties and the submissions of Counsel for both parties herein, and the cases cited to find as hereunder:

On the preliminary point of law on whether the failure by the deponent to appear before the Commissioner for Oaths when deponing an affidavit is fatal, I will first consider the provisions of the applicable law.

As laid out by the law under Section 6 of the Oaths Act Cap 19 and Section 5 of the Commissioners for Oaths (Advocates) Act Cap 5, a deponent to an affidavit must appear before the Commissioner for Oaths personally and read out his or her affidavit on oath, or in the alternative, the affidavit is read out to the deponent on oath, who then signs the affidavit and the Commissioner for Oaths thereafter certifies that the deposition was done before him or her.

Justice Alfonse Chigamoy Owiny-Dollo (as he then was) in the case of Musa Nsimbe Vs Joseph Nanjubi & Others, HCMA No.23 of 2014, stated that;

> "A deponent must personally appear before the commissioner for oaths and read out his or her affidavit, or the same be read out to him or her, on oath. After this, the deponent signs the affidavit,

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and then the commissioner for oaths certifies that the deposition was done before such a commissioner of oaths.

Where any of the steps in the process of deposition is lacking, the purported deposition is invalid for being incomplete; hence, it is unlawful".

I will also rely on the case of Kakooza John Baptist Vs Electoral Commission and Yiga Anthony (supra), in which Court was faced with a similar issue. Justice Kanyeihamba, JSC (as he then was) in his Judgment stated that;

> "... to condone such an unsworn statement seeking to pass affidavit evidence would undermine the importance of affidavit evidence which is rooted on the fact that it is made on oath".

In light of the above authorities, it is clear that it is a mandatory requirement of law that a deponent must appear before a Commissioner for Oaths and take oath on the contents of his or her affidavit for it to be valid.

In the instant case, on $22^{nd}$ September 2023, the $2^{nd}$ Applicant appeared in this Court for cross-examination and it was her testimony that she did not appear before the Commissioner for Oaths while deponing her affidavit in support of this application. Counsel for the Respondent asked the 2^nd Applicant whether she knew the person who commissioned the affidavit, how he looks like and where he sits and the 2^nd Applicant testified that she did not appear before the Commissioner for Oaths. Counsel for the Respondent thereafter made a submission and quoted the Commissioners for Oaths (Advocates) Act and further brought to the attention of Court the Judgment delivered by the Supreme Court of Uganda in the case of Kakooza John Baptist Vs Electoral Commission and Yiga Anthony (supra).

Though in his submissions Counsel for the Applicants insists that the 2^nd Applicant's testimony was to the effect that she appeared before the Commissioner for Oaths, this is not the case and the record of the Court proceedings disproves him.

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With due respect, Counsel cannot in his submissions convince Court that the 2^nd Applicant misapprehended her lawyers' office and that of the Commissioner for Oaths since they are on the same building.

Respectful, I disagree with Counsel for the Applicants. This argument is not convincing to undo the deponent's oral testimony. Given the testimony of the 2^nd Applicant, it is clear that even though the affidavit possesses a stamp and signature of a Commissioner for Oaths, the deponent never appeared before the Commissioner for Oaths thereby making the affidavit in support of this application invalid for noncompliance with Section 5 of the Commissioners for Oaths (Advocates) Act, Section 6 of the Oaths Act and Rule 7 of the Commissioner for Oaths Rules.

Taking into consideration the law relating to affidavits, the case law cited above and the testimony of the 2^nd Applicant, I find the affidavit in support of this application defective hence unlawful.

In Kakooza John Baptist Vs Electoral Commission and Yiga Anthony (supra), it was held that an affidavit not sworn before a Commissioner for Oaths, should be rejected. Further, since the affidavit is unlawful, the same cannot be rectified under Article 126(2)(e) of the Constitution of the Republic of Uganda. Otherwise it would amount to condoning an illegality (See Makula International Ltd Vs His Eminence Cardinal Nsubuga & Anor (1982) HCB Page 11).

It is also trite that an application has to be supported by affidavit evidence. Where there is one affidavit in support of an application and the affidavit is found to be invalid, Courts have observed that in such a case, the application is not supported by an affidavit. The application cannot stand and it ought to be dismissed. (see Ssali Samuel Vs Gladys K. Rwamwamba, HCMA. No.514 of 2014).

In the premises, for the reasons stated above and the cited provisions of the law on commissioning affidavits, the preliminary point of law succeeds. It is a matter of law that an application is supported by

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evidence by way of affidavit. In the absence of such evidence, the application is unsupported.

Accordingly, I find the 2^nd Applicant's affidavit defective and since the application is not supported by any other affidavit, it cannot stand. This application is therefore dismissed with no order as to costs.

I so order.

Dated, signed and delivered electronically this 13^th day of October, 2023.

Patience T. E. Rubagumya **JUDGE** 13/10/2023