[2024] UGCommC 246

# 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[COMMERCIAL DIVISION]**

# **CIVIL APPEAL NO. 40 OF 2019**

## **(ARISING FROM MENGO MISCELLANEOUS APPLICATION NO. 864 OF 2018)**

### 10 **(ARISING OUT OF MENGO CIVIL SUIT NO. 1248 OF 2017)**

**EDITH MUJWISA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

# **QWICART UGANDA LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE HON. LADY JUSTICE HARRIET GRACE MAGALA**

# 15 **JUDGMENT**

#### **Introduction**

This is an appeal arising from the decision of His Worship Nyakaana Allan from the Chief Magistrate Court of Kampala at Mengo delivered on the 20th day of June 2019 in Miscellaneous Application No. 864 of 2018, arising out of Civil Suit No. 1248 of

- 20 2017. The grounds of the Appeal are that: - 1. The learned Trial Magistrate erred in law and fact when he upheld the preliminary objection and dismissed the Appellant's Application based on a technicality; and - 2. That the ruling has caused a miscarriage of justice against the Appellant. - 25 The Appellant sought for orders that:

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- 5 3. That Miscellaneous Application No. 864 of 2018 be heard and disposed of on its merits; - 4. That in the alternative, default judgment be set aside and the Appellant be given an opportunity to defend herself; and - 5. That costs of this Appeal and those in the Lower Court be granted to the 10 Appellant.

### **Background**

On the 25th May 2016, the Appellant executed a Tenancy Agreement over the premises situated at Plot 69 Bukoto Street with Brighter Monday Uganda Limited 15 for a period of 3 years in consideration of a monthly rent of USD \$ 1,100 (United States Dollars One Thousand One Hundred). On the 25th January 2017, the Appellant, Respondent and Brighter Monday Uganda Limited (tenant) executed an Assignment of Tenancy Agreement over the same premises, incorporating the terms of the Tenancy Agreement and the assignment was consented to by the Appellant. The Respondent effected rent payments from 1st June to 1st 20 September 2017. However, on the 31st June 2017, the Appellant re-entered the said premises, to which the Respondent objected. The Respondent was forced to secure new office premises for the continuity of its business and later engaged the Appellant for a refund of the rent of USD \$ 1800 (United States Dollars One Thousand Eight 25 Hundred), it paid in advance. Upon the refusal by the Appellant to refund the rent paid, the Respondent instituted Civil Suit No. 1248 of 2017 against the Appellant. It is in this suit that His Worship Nyakaana Allan on the 8th October 2018 ordered and

decreed that the Appellant pay the sum of USD \$ 1800 as rent unutilized, USD \$

5 1,100 being general damages, Ushs. 400,000 being aggravated damages and costs of the suit.

The Appellant filed Miscellaneous Application No. 864 of 2018 seeking for orders: that default and interlocutory judgment and decree; execution of the decree and judgment be stayed pending hearing; and determination of the Appellant's 10 application to set aside the judgment. The Appellant's grounds for the application were that: she was never duly served with the summons and plaint; both the default and interlocutory judgment were entered in error and through misrepresentation; she came to know of Civil Suit No. 1248 of 2017 during the Garnishee Nisi proceedings; the said suit raises several matters of law and fact 15 which ought to be heard and resolved by hearing all the parties herein above on the merits; the Appellant has a good defence; and the judgment be set aside and the Appellant be allowed to file a defence to this suit.

During the hearing of the above Application, Counsel for the Respondent raised a preliminary objection premised on **Section 5 of the Commissioners for Oaths**

20 **(Advocates) Act, Section 5 & 6 of the Oaths Act** and in the case of *Kakooza John Baptist vs. Electoral Commission and Yiga Anthony Election Petition Appeal No. 11 of 2007***;** that the Applicant testified that she never appeared before a Commissioner for oaths. That this implied that the purpose of giving sworn evidence was lost and thus made the affidavit incurably defective and must be 25 struck out. His Worship Nyakaana Allan agreed with the Respondent that the law required actual appearance of the deponent before the commissioner for oaths, and by not doing so, the Affidavit in support was incurably defective and struck out.

### 5 **Appearance and representation**

The Appellant was represented by M/s Akampurira & Partners Advocates and Legal Consultants. The Respondent was initially represented by M/s C. Mukiibi Sentamu & Co. Advocates, however, following the notice of change of Counsel dated 10th March 2023, the Respondent is now represented by M/s Oculus Advocates. The

matter came up for hearing on 7th 10 December 2023. The Parties were given schedules to file written submissions which have been duly considered.

# **Determination**

The Memorandum of Appeal before this Honourable Court contains the following grounds:

- 15 1. The Learned Trial Magistrate erred in law and fact when he upheld the preliminary objection and dismissed the Appellant's Application based on a technicality. - 2. The ruling has caused a miscarriage of justice against the Appellant.

## **Determination**

- 20 It is a settled law that it is the duty of the Plaintiff to prove his or her case on the balance of probabilities. In relation to the onus of proof in civil matters, the burden of proof lies on he who alleges a fact and the standard is on the balance of probabilities as provided for under **Sections 101, 102 and 103 of the Evidence Act Cap. 8** - 25 It is also settled law that the duty of the first Appellate Court is to appreciate the evidence adduced in the lower Court, subject it to an exhaustive fresh scrutiny and

5 arrive at its own conclusion as held in the case of **Kifamunte Henry vs. Uganda SCCA No. 10 of 1997.**

#### **Preliminary Objection**

Counsel for the Respondent raised a preliminary point of law as to this appeal being incompetent. He submitted that the Appellant filed Miscellaneous

- 10 Application No. 864 of 2018 under Order 9 Rule 12 of the Civil Procedure Rules. However, under Section 76 of the Civil Procedure Act and Order 44 of the Civil Procedures Rules, the orders made under Order 9 Rule 12 are not provided for, therefore, they are not appealable. In reply, Counsel for the Appellant submitted that his interpretation of the above laws was that they applied to appeals filed in - 15 the Court of Appeal and not in the Magistrates Court.

In determining this preliminary point of law, it is provided under **Order 6 Rule 28 of the Civil Procedure Rules** that a point of law so raised shall be disposed of by the court at or after the hearing, except 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

20 of at any time before the hearing. This was similarly stated in the case of *Uganda Telecom Ltd vs. ZTE Corporation SCCA No. 3 of 2017.*

I find that it is indeed true that the Appellant filed *Miscellaneous Application No. 864 of 2018* under Order 9 Rule 12 of the Civil Procedure Rules which is not provided for under Order 44 Rule (1) of the Civil Procedure Rules, an appeal as of

25 right. However, on perusing the physical file, the Appellant filed *Miscellaneous Application No. 391 of 2019* seeking for leave to appeal the ruling in Miscellaneous Application No. 864 of 2018 on 27th June 2019 at the Chief Magistrate's Court. The same was followed by a hearing of both parties on 8th July

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- 5 2019 wherein the Learned Trial Magistrate granted the Appellant leave to appeal the decision in Miscellaneous Application No. 864 of 2018. This implies that both parties were aware that this appeal was not as of right under **Order 44 Rule 2 of the Civil Procedure Rules**. I therefore find that the Respondent's implied preliminary point of law is incompetent and is hereby overruled. - 10 I will now delve into determining the substantive grounds of the appeal jointly: - 1. The Learned Trial Magistrate erred in law and fact when he upheld the preliminary objection and dismissed the Appellant's Application based on a technicality; and - 2. The ruling has caused a miscarriage of justice against the Appellant.

#### 15 **Section 220 (1)(a) of the Magistrates Courts Act Cap 16** provides that:

*"Subject to any written law and except as provided in this section, an appeal shall lie- from the decrees or any part of the decrees and from the orders of a magistrate's court presided over by a chief magistrate or a magistrate grade I in the exercise of its original civil jurisdiction in the High Court;"*

20 I have carefully analyzed both parties' submissions and subjected all evidence to a fresh scrutiny. On perusing the record of proceedings in Miscellaneous Application No. 864 of 2018 dated 14th March 2019 at page 4, Counsel Mugarura Eric raised the preliminary objection which was to the effect that the Appellant testified on oath that she never appeared before the Commissioner of Oaths. This thereby rendered 25 her affidavit in support of the application incurably defective. That the Affidavit by a one Amos Ayebazibwe was not served on the Respondent and the same was in contempt of court.

Page **6** of **11** 5 Counsel Michael Akampurira replied to this preliminary objection and submitted that the affidavits can be sworn in one place and commissioned in another, and the same is not fatal much less make an affidavit incurable. Counsel further submitted that the Respondent had an evidential burden to prove that the Commissioner was not in the chambers of counsel for the Applicant. The Learned Trial Magistrate 10 found that the Appellant's Affidavit in support was not sworn in the presence of a

Commissioner of Oaths and for that reason the Application was dismissed as it was incurably defective.

**Section 6 of the Oaths Act, Cap 21** and **Section 5 of the Commissioners for Oaths (Advocates) Act Cap 6** and **Rule 7 of the Commissioner for Oaths Rules,** a deponent

- 15 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; stating the place and date the oath or affidavit is taken. - 20 I will also rely on the case of *Kakooza John Baptist vs. Electoral Commission and Yiga Anthony SCCA No. 11 of 2007 at page 27* in which Court was faced with a similar issue. Justice Kanyeihamba, JSC (as he then was) in his Judgment stated 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* 25 *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.*

- 5 *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".* - 10 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 case before court at page 2 of the record of proceedings, during cross examination of the Appellant in Miscellaneous Application No. 864 of 2018, she affirmed that she deposed the 15 affidavit in support, signed and it was taken by her lawyer for commissioning.

I respectfully disagree with Counsel for the Appellant's submission that the Respondent had an evidential burden to prove that the Commissioner for Oaths was not in chambers of counsel, with the Appellant at the time the Affidavit was sworn. That the same can be rectified under Article 126(2)(e) of the Constitution

20 of Uganda. Given the undisputed sworn testimony of the Appellant at the Chief Magistrate Court in Mengo, it is confirmed that she never appeared before the commissioner of oaths, thus the Respondent dispensed its burden of proof in cross examination.

I further respectfully still disagree with Counsel for the Appellant's submission 25 that the deponent can swear his or her affidavit in one place and commission it from another place as stated at page 6 of the record of proceedings**. Section 6 of the Oaths Act** states that:

5 *"Every Commissioner for Oaths or notary public 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 my considered opinion, the Learned Trial Magistrate rightly found that the 10 Appellant's affidavit in support was incurably defective.

I will also determine the Appellant's issue that the Learned Trial Magistrate should have considered the other 3 Affidavits. On a careful perusal of the file, the Appellant's affidavit in support was filed on 20th December 2018, the Respondent's Affidavit in reply was filed on 21st January 2019, the second

Affidavit in support of a one Amos Ayebazibwe was filed on 6th 15 February 2019, the Affidavit in rejoinder was filed on 30th January 2019 and the supplementary affidavit was filed on 16th April 2019 at the Chief Magistrates Court at Mengo.

According to Counsel for the Respondent, the said second affidavit and Affidavit in rejoinder were filed after the hearing of the matter had commenced and never

20 served on to the Respondent. He further submitted that the supplementary affidavit was filed without leave of court to which end, these affidavits were in contempt of court.

In the case of *Surgipharm (U) Ltd vs Uganda Investment Authority & Anor HCMC No. 65 of 2021* **at page 9**, Hon. Justice Boniface Wamala at paragraph 12 stated 25 that:

> *"As such, even where no affidavit in rejoinder is filed but the pleadings have closed with the filing of an affidavit in reply, a party would not be a liberty to file a supplementary affidavit after the closure of pleadings without*

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5 *seeking the court's leave and giving the other party an opportunity to respond to the additional averments. In that regard, therefore, even in absence of an affidavit in rejoinder in a particular matter, if a party waits up to after the matter has come up for hearing, and for some reason the matter does not take off, a party seeking to file any supplementary affidavit* 10 *would need to seek leave of the court and to notify the opposite party".*

According to the instant facts, the second Affidavit in support of the Application was filed after the Affidavit in reply was already filed, which in my opinion the Respondent was prevented from having an opportunity to respond to any added averments in it. The Respondent also submitted that he was not served with any of

15 the 3 Affidavits and this submission has not been rebutted by the Appellant in her submissions in rejoinder.

A look at the timelines when the two affidavits were filed shows that they were filed after pleadings had closed, after the commencement of the hearing and without leave of court.

- 20 For avoidance of doubt, it is clear that all the other 3 Affidavits were filed after the closure of pleadings and after the hearing of the Application had commenced. The law is explicitly clear to this end that pleadings filed at the closure and after the matter has come up for hearing, a party must seek leave of court to file them in order to notify the opposite party. With all these affidavits having not been served - 25 upon the Respondent and filed without leave of court, the Learned Trial Magistrate cannot be faulted for not considering the same in his decision. In my opinion, the said affidavits were illegally and unlawfully filed in the Chief Magistrates Court. In the premises a miscarriage of justice was not occasioned.

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5 In the circumstances, the Affidavit in rejoinder although filed within 15 days from the date the Affidavit in reply was filed, the Respondent was never served with it and the same preceded an Affidavit in support which was incurably defective. There was therefore no affidavit to make a rejoinder to. Since the Affidavit in support of the Application was found defective, all the other 3 affidavits were filed illegally, 10 the same cannot be rectified under Article 126(2)(e) of the Constitution of Uganda and otherwise it would amount to condoning these illegalities (**see decisions in**

**Makula International vs. His Eminence Cardinal Nsubuga & Anor [1982] HCB at page 11**).

Having subjected all evidence to a fresh and substantive scrutiny, I find that the

15 Appellant has failed to prove to this Court that the Learned Trial Magistrate erred in law and fact in his decision.

I also find that the preliminary objection raised in Miscellaneous Application No. 864 of 2018 is sustained as it effectively disposed of the Application. This appeal is hereby dismissed with costs to the Respondent.

## **Signed and dated at Kampala this 13th** 20 **day of August 2024**

**Harriet Grace MAGALA**

**Judge**

**Delivered electronically online (ECCMIS) this 14th** 25 **day of August 2024.**