[2024] UGCommC 366

| 5 | THE REPUBLIC OF UGANDA | | | |----|---------------------------------------------------------------------------------------------------------------------------------------------|---|------------| | | IN THE HIGH COURT OF UGANDA AT KAMPALA | | | | | [COMMERCIAL DIVISION] | | | | | MISCELLANEOUS APPLICATION NO. 1832 OF 2024<br>[ARISING OUT OF CIVIL SUIT NO. 442 OF 2015 AND MISCELLANEOUS APPLICATION<br>NO. 0015 OF 2015] | | | | | | | | | 10 | | | | | | OBETA MOSES | ] | APPLICANT | | 15 | VERSUS | | | | | CENTENARY RURAL DEVELOPMENT BANK LTD | ] | RESPONDENT | | | RULING | | |

#### 20 **Before: Hon. Justice Ocaya Thomas O. R**

#### **Introduction**

This is an application under Section 98 of the Civil Procedure Act Cap 282, Section 33 of the Judicature Act and Order 9 Rule 12 of the Civil Procedure Rules ["CPR"]. The application

- 25 seeks the following orders: - 1. The execution in execution miscellaneous application No. 15 of 2015 and the exparte judgment in Civil Suit No. 442 of 2015 be set aside. - 2. In the alternative and without prejudice to the above, the Applicant be granted leave to file (a) defence to the summary suit and the suit be heard on its merits and in the - 30 interests of substantive justice (sic).

#### Background to The Application Per the Applicant

The background to this application accordingly to the applicant is as below; Ejab Family Investment and Trading Co. Limited was a customer of the Respondent and borrowed UGX

35 600,000,000 in 2011 as working capital for sale of MTN Products. The Applicant is neither a director, company secretary or signatory to the bank account of the said borrower, and

5 neither is the Applicant a signatory to the accounts of Onzia Margaret Ezabuku or Onzia Emily Ezabuku who are surviving directors of the borrower and widows of the late Ezabuku Josephate Armstrong Bileti who died intestate in 2002.

The Applicant contends that after the death of the late Ezabuku Josephate, he and his above-10 mentioned widows were chosen by the deceased's family as administrators of the deceased's estate since his biological children were still young. Owing to interference by the family of the deceased in the administration of the estate and running the above-named borrower company, the Applicant openly pulled out as one of the administrators in 2013.

- 15 In 2011, the Applicant was asked to "sign for the loan" taken by the above mentioned borrower company as one of the administrators of the deceased and the said loan was secured by a mortgage over land described as Plot 9, Block 3 at Ayivu and Plot No. 2A Duka Road in Arua Municipality. - 20 The Borrower defaulted and the Respondent opted to sue the Applicant instead of the borrower and lift the veil of incorporation, thereby suing the directors all vide HCCS 442 of 2015. Prior to this suit, a suit was filed vide HCCS 71/2014 in High Court Family Division regarding the same bank loans being the subject of the Respondent's above-mentioned suit. - 25 Consequently, the High Court Family Division entered judgment in HCCS 71 OF 2014 wherein the court held that the Respondent's above-mentioned mortgages were illegal, fraudulent and void ab initio. The Applicant contends that the Respondent cannot benefit from a mortgage and transaction that is already declared by court to be illegal, void ab initio and a nullity and that the Respondent did not appeal the said decision. - 30

The Hearing of HCCS 442 of 2015 was stayed by Hon. Justice Christopher Madrama pending the determination of the suit before the family division and the case in Arua High Court.

The Respondent contends that he, Onzia Emily Ezabuku and Onzia Margaret Ezabuku were

35 sued by the Respondent jointly and severally as guarantors for recovery of the sum of UGX 395,693,444 and yet the warrant of arrest in execution indicates principal sums and interest 5 totaling to UGX 1,060,488,428. The Applicant further contends that the Respondent previously informed court that the entire loan had been paid and they were now only pursuing costs of the suit but turned round toc claim for UGX 1,060,488,428.

#### Respondent's Case

10 The Respondent opposed this application. To begin with, the Respondent contended that the application is incurably defective having been brought under the wrong law to with Order 9 Rule 12 of the CPR and that the same is filed after inordinate delay.

The Respondent contends that it offered a corporate loan facility of UGX 600,000,000 to Ejab 15 Family Investment & Trading Co. Ltd ["The Borrower"] on 1 June 2011 for 42 months in which the Applicant was one of the directors at the time. The loan was secured by the above mentioned mortgages and, as an additional security, a guarantees and undertakings by the Applicant and his co-administrators.

- 20 The borrower defaulted on its obligations under the loan and the Respondent called on the guarantees executed above but the Applicant and his co-guarantors refused/neglected to pay to the respondent the sum of UGX 395,693,444 which was then outstanding under the corporate loan facility. - 25 The Respondent consequently brought a summary suit against the Applicant and his coguarantors vide HCCS 442 of 2015 to recover the sums outstanding and interest thereon. The Applicant filed HCMA 603 of 2015 seeking leave to appear and defend but the same was dismissed because it was not supported by affidavit evidence and default judgment was entered against the Applicant in the Respondent's favour. - 30

The Respondent extracted a decree from court ordering that the applicant pays to the Respondent a sum of UGX 395,693,444 and interest thereon at the facility rate of 21% per annum from 23 June 2015 until payment in full and costs of the suit. Consequently, the Respondent commenced execution proceedings to recover UGX 395,693,444 being the

35 principal sum and UGX 664,764,984 being interest thereon altogether amounting to a sum of UGX 1,060,458,428.


- 5 The Respondent contends that the Applicant did not pay the sums outstanding and the said statement was made by Mr. Raymond Mwebesa who was never instructed by the Respondent and which statement was unverified. Additionally, the Respondent contends that its advocates wrote to the said Mr. Mwebesa who confirmed that the Respondent has never instructed him and that the said typed proceedings adduced by the Applicant reflect - 10 what transpired in a completely different case and that in any case, the Applicant has not attached proof of payment.

The Respondent contends that the Applicant does not satisfy the grounds to set aside/stay execution of the decree as the Applicant has not provided sufficient cause and further the 15 present application has no likelihood of success, that the Application does not demonstrate good cause upon which the decree may be set aside and that the Applicant has further not demonstrated grounds to be granted leave to file a defence to a summary suit as the Applicant has not provided a Bonafide or genuine defence for failure to pay the outstanding loan sum.

The Respondent contended that the High Court Family Division judgment in HCCS 71 of 2024 only declared the above stated mortgages to be illegal having been registered unlawfully but did not extinguish the liability of the Applicant as one of the guarantors of the outstanding sum.

# Applicant's Rejoinder

The Applicant contended that contrary to the averments by the Respondent, the Applicant's application was premised on the correct law as the Applicant's application and affidavit disclose good cause for setting aside judgment and execution and that in any case, citing the

30 wrong law does not render the Application defective as it is a technicality which can be cured or corrected by Court inserting the correct law and the application is then considered on the merits.

The Applicant contended that the loan was disbursed to Ejab Family Investments & Trading 35 Co. Ltd which is still in existence and the Applicant has never been a director of the same.

The Applicant contends that he was forced to sign the loan agreement and guarantee by


5 virtue of his position as an administrator and that in any case the mortgaged properties are still available and the Respondent can pursue recovery of the sums advanced.

The Applicant in the same vein contends that the decision of the High Court Family Division declared the mortgage and the loan agreement fraudulent, illegal and void ab initio and

- 10 revoked the letters of administration and accordingly, the Respondent cannot seek to recover the sums advanced in respect of the said transaction. The Applicant contends that his application demonstrates good cause as the Respondent seeks to enforce a transaction which has been declared illegal, void and fraudulent and accordingly, the Applicant shoulders no further obligation to the Respondent. - 15

### **Representation**

The Applicant was represented by M/s Alaka & Co. Advocates while the Respondent was represented by M/s MMAKS Advocates.

### 20 **Evidence and Submissions**

The Applicant led evidence by way of an affidavit in support and an affidavit in rejoinder deponed by himself. The Respondent led evidence by way of an affidavit in reply deponed by a one Ruth Birungi, the Respondent's litigation manager.

25 The Applicant filed written submissions while the Respondent made oral submissions in support of its case. The Applicant made an oral rejoinder to the Respondent's submissions. However, for purposes of brevity, I have not felt the need to restate the submissions herein, suffice to say that the court has considered them in arriving at its decision.

# 30 **Decision**

We must state here that applications for setting aside under Order 9 Rule 27 are distinct from applications under Order 9 Rule 12. In both rules, an applicant will be applying to set aside an ex parte judgment (except in some circumstances where judgment is entered under Order 50]. The judgment is exparte because it is achieved at after the participation of only

35 one side to litigation. [see **National Resistance Movement v Kampala Modernity & Printers Ltd HCMA 6 of 2016**]

## 5 **Order 9 Rule 12** of the CPR provides thus:

"Where judgment has been passed pursuant to any of the preceding rules of this Order, or where judgment has been entered by the registrar in cases under Order L of these Rules, the court may set aside or vary the judgment upon such terms as may be just."

# 10 **Order 9 Rule 27** of the CPR provides thus:

"In any case in which a decree is passed ex parte against a defendant, he or she may apply to the court by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make

- 15 an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also." - 20 Order 9 Rule 12 is much more broad than Order 9 Rule 27 which permits setting aside only on the ground of non-service of summons. Under Order 9 Rule 12, non-service of summons can be a ground for setting aside but is not the only basis an order of setting aside may be granted. See **Nicolas Rousos v Gulam Hussein Habib Virani & Anor SCCA 9/1993**. - 25 For an application for setting aside under the provisions of Order 9 Rule 12 to succeed, the applicant must demonstrate that in light of all the facts and circumstances both prior and subsequent, it would be just and reasonable to set aside or vary the judgement if necessary upon terms to be imposed. See **Mbogo v. Shah (1968) EA 93, Patel v. E. A. Cargo Handling Services (1974) E. A 76, Kimani v. McConnell (1966) E. A. 547, Nicolas Rousos v Gulam** - 30 **Hussein Habib Virani & Anor SCCA 9/1993**

Indeed, most of the judgments which will be sought to be set aside under Order 9 Rule 12 or Order 9 Rule 27 will be judgments issued after some sort of default by a litigant. So, how does a party know under which rule to proceed? It depends on the default that allegedly caused

35 the issuance of the judgment.

5 A party will proceed under Order 9 Rule 12 if the judgment was granted under the preceding rules (**that is Order 9 Rule 6, Order 9 Rule 8, and Order 9 Rule 10**] or under **Order 50**. On the other hand, a party will proceed under **Order 9 Rule 27** where an exparte judgment has been given under any of the other rules of the CPR. [See **Nicholas Roussos v Gulamhussein Habib Virani & Anor SCCA 9/1993**].

Generally, where a party proceeds by the wrong law [for instance under Order 9 Rule 12 instead of Order 9 Rule 27], the same is not fatal for as long as the court is clothed with jurisdiction to hear the matter and the procedure utilised can accommodate the application. [See **Saggu v Roadmaster Cycles (U) Ltd 2002 1EA 258**]

The Applicant's application is fairly confusing in the sense that the orders sought in the notice of motion appear to be for setting aside execution and not the default judgment which is the basis of the execution. Additionally, the Applicant seeks leave to enter a defence to the summary suit from which this application arises without, in the notice of motion, explicitly 20 seeking orders to set aside the default judgment.

A review of the affidavit in support and the affidavit in rejoinder as well as the Applicant's submissions show that the applicant seeks to (a) prevent execution and alternatively (b) reverse the judgment on record and be granted an opportunity to oppose the Respondent's 25 summary suit. It therefore appears that the Applicant seeks orders for setting aside

execution and alternatively, setting aside the default judgment in the main suit.

Even then, a party cannot successfully seek to prevent execution except if they specifically plead a bar to execution such as payment of the judgment debt, execution being levied 30 against the wrong party, execution being prohibited by a time bar or such related pleas. However, where a party challenges execution on the basis that the judgment is itself wrong in law, then one cannot be heard to simply challenge the execution unless if the challenge is to protect a pre-existing or intended action such as an appeal or an application for setting aside a judgment.

- 5 In the present case, the applicant contends that (1) the sums claimed are not recoverable (what I will consider a challenge against the judgment) and (ii) in any event the sums recoverable have been paid except costs (what I will consider a challenge against the execution) - 10 Challenge against the judgment/ Setting Aside Judgment

In **Section 98 CPA**, the inherent power of court is saved in the following terms;

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

In **Vantanga Mezzanine Fund II Partnership & Anor v Commissioner Land Registration HCMA 2484/2023** this court referencing Section 33 of the Judicature Act and Section 98 of the CPA held thus:

"These provisions vest the High Court with wide discretionary and inherent powers

20 respectively to grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it."

See also **Kagumaho Musana v Rama and 3 Others HCMA 933 of 2019 and Tullow Uganda Limited & Anor v Jackson Wabyona & Ors HCMA 443/2017, Green Meadow**

25 **Limited v Patrice Namisono HCMA 1368/2022**.

Accordingly, the intention of the Applicant's application being discernible, notwithstanding that the same is not as properly pleaded, and in the interests of justice, the court will entertain the Applicant's application and dispose of it on the basis of the premise and

30 intention of the application as has been discerned above, rather than decline to dispose of this application on the basis of lack of clarity and conciseness in the Applicant's pleadings.

To that end, it follows that the Applicant's application was premised under the wrong law. The Applicant's application was dismissed and judgment entered in accordance with **Order**

35 **36 Rule 5** which provides thus: 5 "Where, after hearing an application by the defendant for leave to appear and defend the suit, the court refuses to grant such leave, the Plaintiff shall be entitled as against the defendant to a decree such as is described in Rule 3 of this order."

In the instant case, the Applicant filed HCMA 603 of 2015 seeking leave to appear and defend 10 but the same was dismissed because it was not supported by affidavit evidence and default judgment was entered against the Applicant in the Respondent's favour. It follows that the proper procedure is to apply for setting aside under Order 36 Rule 11 and not Order 9 Rule 12.

- 15 The judgment having been entered under Order 36 Rule 5, which is not a preceding rule of Order 9 Rule 12. However, as noted above, this is not particularly fatal as this court in any event has jurisdiction to dispose of the said application and the mode of presentation of the application can sustain its disposal. - 20 **Order 36 Rule 11** of the CPR provides thus:

"After the decree the court may, if satisfied that the service of the summons was not effective, or for any other good cause, which shall be recorded, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as

25 the court thinks fit.."

For an application for setting aside under the provisions of **Order 36 Rule 11** to succeed, one must either show non-service of summons or good cause. In the present circumstances, the applicant has not contended that he was not served. Indeed, the Applicant even filed an

30 application for leave to appear and defend intimating that he was made aware of the existence of the specially endorsed plaint.

It follows that, in the circumstances of this case, the Applicant must show good cause warranting setting aside.

- 5 Good cause has been defined in **Pinnacle Projects v Business in Motion Consultants HCMA 362/2010** as "a legally sufficient reason". It has also been defined in **Dr. B. B Byamugisha v Alison Kantarama HCMA 229/2019** as "the legal burden place upon a litigant, usually by court, to show why a particular request should be granted or an action or omission excused". The court noted that "good cause" was being used analogously with - 10 "sufficient cause".

Is good cause the same as sufficient cause? In Uganda, the expressions "Good Cause" and "Sufficient Cause" have been used interchangeably, and to mean the same thing.

In the Indian Case of **Parimal v Veema Civil Appeal No. 1467 of 2011**, the Indian Supreme 15 Court defined "Sufficient Cause" this way;

""Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose

- 20 intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case - 25 must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously."

In the case of **Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993** the Indian Supreme Court has this to say about "good cause" and "sufficient cause":

30 "The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause."

I note that the CPR uses "good cause" and "sufficient cause" in different instances. For instance, "good cause" is used in **Order 1 Rule 15, Order 36 Rule 11 and Order 9 Rule 21**.

5 On the other hand, the CPR uses "sufficient cause" in **Order 9 Rule 18, Order 9 Rule 26, Order 43 Rule 16 and Order 43 Rule 18**, among other instances.

A review of these rules quickly shows that the expression "sufficient cause" is used where a litigant must explain their default, or failure to take a step as directed by the law or court.

- 10 In my view, "good cause" and "sufficient cause" are not the same. "Good Cause" requires a party to show a legally sufficient reason why court should exercise a discretion in their favour. Good cause may exist in spite of a party's own mistake; for instance good cause may favour allowing a party amend a pleading to include a party who was mistakenly excluded or to amend their trial bundle and include a document they mistakenly forgot to include. - 15

"Sufficient Cause" implies a much higher standard, requiring a party to show that they are not guilty of a default, or that it cannot be attributable to them. For instance, where an unrepresented party is hospitalised on the day of court, and accordingly an exparte decree is entered against them, there is sufficient cause to set it aside, since their failure to attend

20 court is not a fault of their own. I do not believe the rules committee were being colourful when they used "good cause" in one instance, and "sufficient cause" in another. They intended to apply two different standards.

See **Mount Meru Millers v Atlas Cargo Systems HCMA 806/2022, Fred Byamukama & Anor v Micheal Katungye HCMA 773/2022, Green Meadow Limited v Patrice Namisono** 25 **HCMA 1368/2022.**

Reviewing the Applicant's notice of motion and affidavits, the Applicant advances the following grounds as good cause;

- (a) The impugned transaction was declared illegal and therefore cannot be enforced. - 30 (b) The Applicant was "forced" to sign the guarantee the basis of the main suit - (c) The mortgaged securities and principal borrower are still available and the Respondent can pursue recovery as against them

We will review each and every of these reasons.

#### 5 Recovery Is Illegal

Here, the Applicant contended that the decision of the Family Division in HCCS 71 OF 2014 discharged him in so far as it declared the entire transaction illegal and therefore the Respondent cannot purport to enforce what the court found illegal.

10 The starting point is to note that the Plaintiffs in HCCS 71 of 2014 who were/are the beneficiaries of the estate of the Late Josephate Ezabuku were not parties to the loan agreement for which the impugned mortgages acted as security. Additionally, the reliefs pleaded in paragraph 6 of the Plaint (Annexure "D" to the Applicant's affidavit) do not in any way deal with the lending transaction but deal with the legality of one of the securities 15 thereto namely the mortgages executed in favour of the Respondent.

During scheduling, no issue was put to court as to the legality of the loans. Instead, only the question of the legality of the mortgage was put to court, as can be seen by issue 2 which reads "Whether the mortgage of the suit properties was duly executed in accordance with

20 the law" and issue 3 "whether the mortgage of the suit properties was created or secured fraudulently by the defendants jointly or severally"

At Pages 7-14 of the decision of the court contains the disposal of the above mentioned two issues. The court did not at any time consider, nor was it invited to consider, the legality of 25 the loan agreement and/or guarantees being the basis of the Respondent's suit.

It must be understood that a loan agreement is distinct from any security agreements that may be executed by the parties. Additionally, the law of the loan agreement (usually the Contracts Act) is usually distinct from the law of the securities (the Contracts Act, the

30 Mortgage Act, the Security Interest In Movable Property Act etc). The loan agreement and the securitization agreement create separate, severable, distinct and independent obligations which all stand alone.

One body of obligations (such as under a loan) does not typically depend or rely on the other

35 body of obligations (such as under the security documents). Additionally, where a security is voided, lost or released, this will not by itself alone mean that the obligations under the


- 5 rest of the securities or indeed the loan are themselves extinguished. Where a loan is secured by a mortgage, debenture and guarantees, it does not follow that a declaration that the guarantee is void invalidates the loan and any security agreements. These obligations, though related, are separate and distinct and do not form the body of a dominoes set, such that what happens to one automatically translates to the others. - 10

## In **Damalie Byakusaga Bisobye v Byakusaga Bisobye Sebulime & Anor HCMA 1295/2023**, this court held thus;

"A loan may be secured or unsecured. Where it is secured, there are two agreements; the loan agreement and the collateral agreement. The mortgage is a subsequent separate

- 15 collateral contract, the consideration for which is the entry into the loan agreement, which is the principal contract. What the 2nd respondent is enforcing is the principal contract and not the collateral one. A collateral contract is a separate contract altogether and is related to the principal contract only in the sense that the entry into the principal contract furnishes its consideration. Each of the two contracts has an independent existence, and they do not - 20 differ in respect of their possessing to the full the character and status of a contract (see Heilbut, Symons & Co. v. Buckleton [1913] A. C. 30 at 47). The invalidity or imperfections of the collateral agreement do not affect the loan agreement (see Strongman (1945) Ltd. v. Sincock, [1955] 2 Q. B. 525; [1955] 3 ALL. E. R. 90)."

This position was reiterated in **Formula Feeds Ltd & Ors v KCB Bank Ltd SCCA 13/2020**

25 by the Supreme Court and I find myself bound by the decision of the Supreme Court on this point.

It follows that the above reason cannot form good cause warranting setting aside.

- 30 The Applicant was "forced" to sign the guarantee the basis of the main suit and The mortgaged securities and principal borrower are still available and the Respondent can pursue recovery as against them These two allegations are related. - 35 **Section 71** of the Contracts Act, 2010 provides thus;


5 "(1) The liability of a guarantor shall be to the extent to which a principal debtor is liable, unless otherwise provided by a contract.

(2) For the purpose of this section the liability of a guarantor takes effect upon default by the principal debtor."

A guarantee is a contractual agreement to make payment of sums due and owing in the event of default by the principal borrower. The Guarantee is a separate security from any of other securities that may have been provided and is enforceable if there is a default by the principal borrower. In the event of default, unless there is a contrary provision of law, the beneficiary

15 of the guarantee is entitled to pursue any or all securities available simultaneously and does not need to first attempt recovery or fail to recover as against the principal borrower for them to pursue the guarantor(s). Therefore, it follows that the allegations by the Applicant to this effect are all besides the law. See **Moschi V Lep Air Services and Ors [1973] AC 345, Paul Kasagga and Another v Barclays Bank (u) Ltd HCMA 0113/2008, Uganda Finance**

# 20 **Trust Limited v Alloys Muhumuza & Anor HCCA 111/2015, Pamela Anyoti v Root Capital Inc HCMA/2023**

It follows that the Applicant has not demonstrated good cause warranting setting aside of the judgment in favour of the Respondent.

### Setting Aside Execution

Here, the Applicant contended that the entire sums outstanding had been paid, save for the issue of costs and relied on the proceedings of HCCS 442/2015 attached as Annexure "H" to the affidavit in support. In reply, the Respondent contended that Mr. Raymond Mwebesa who

30 is reported to have stated that the said sums had been paid was neither instructed by the Respondent and neither had he ever received instructions to hold brief for counsel in personal conduct.

The Respondent adduced a letter dated 12 September 2024 written to M/s Kampala

35 Associated Advocates and put to the attention of Mr. Raymond Mwebesa inquiring about the above proceedings (Annexure G to the affidavit in reply).

- 5 The Respondent also adduced another letter (Annexure H) from M/s Kampala Associated Advocates and written by Mr. Mwebesa indicating that; - 1. The said proceedings are unknown to him. - 2. He has never received instructions from any of the parties in HCCS 442 of 2015 either to personally conduct a party's case or hold brief. - 10 3. On the same day, 8 July 2022, he appeared before the same judge, Hon. Justice Wejuli Wabire Richard in Centenary Rural Development Bank v Margaret Zzalwango & Ors HCCS 447/2018 and the proceedings as reported in Annexure H of the Applicant's affidavit in support are exactly what transpired in the above captioned case. - 4. Mr. Mwebesa provided a number of documents relating to the above matter (marked 15 Annexures "A" to "E" of his letter) key among which is a decree extracted by M/s Kampala Associated Advocates wherein judgment was entered in favour of Centenary Rural Development Bank (U) Ltd v Margaret Zalwango & Ors in the manner described in Annexure H above. - 20 Additionally, no proof of payment was provided demonstrating that the said loan had been paid off.

I observe that Annexure H to the affidavit in support of the application is neither signed by the judicial officer who purportedly prepared it and neither is it certified. It follows that it is 25 difficult to verify whether indeed the same is part of the record of HCCS 445/2015 or indeed another matter. Whereas the Applicant contended that the said proceedings were obtained after a letter to the court, in my view, this does not discharge the need for certification so as to be sure that the proceedings indeed form part of the record of the above captioned case and not any other. In the circumstances, those proceedings as adduced are not reliable proof 30 to demonstrate that indeed such an averment was made.

In any case, there is unchallenged evidence that Mr. Raymond Mwebesa who allegedly made the said representation on the record has never been counsel in the said matter and indeed that the representation was uttered by him in a completely different matter before the same

35 judicial officer albeit also acting for the Respondent. That, and the lack of proof of payment

- 5 of the sums claimed, in my view, means that even if the same had been in anyway said on the record of the main suit and consequently a decision confining recovery to costs entered, the same decision would unfortunately be in error, and in exercise of its broad inherent powers in the interests of justice, this court sets aside the decision. - 10 Accordingly, the contentions of the Applicant disclose no legal basis to grant the reliefs sought.

It follows that the Applicant's application stands dismissed.

### 15 **Conclusion**

Having held as above, I hereby dismiss the applicant's application with costs to the Respondent.

I so order.

Delivered electronically this\_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2024 and uploaded on ECCMIS. 24th December


**Ocaya Thomas O. R**

**Judge,**

**24th December, 2024**