[2000] UGCA 47

#### THE REPUBLIC OF I-IGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JIISTICE G. M. OKELLO, JA. HON. JTISTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JTJSTICE A. TWINOMI-IJTINI, JA.

### CIVIL APPEAL NO.46 OF 2OOO

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# TARLOI, SINGH SAGGU APPELI,ANT VERSUS

#### ROADMASTER CYCLES (U) LIMITED ::::::::::::::: RESPONDF:N1'

[Appeal from the Order of the High Court at Kampala (Okumu-Wengi J) arising out of Miscellaneous Application No.l609/99 dated 2.3.2001|

## JTIDGEMENT OF A. E. N. MPAGI. BAHIGEINE, JA.

This appeal is against the ruling and order of the High Court (Okumu-Wengi J) dated 2.3.2000, allowing High Court Miscellaneous Application No.l609 of 1999 to strike out HCCS No.l264 on the ground that it lacked jurisdiction to entertain it.

The brief outline as presented to us by Mr. Asa Mugenyi, learned counsel, for the appellant is as follows:

By a lease agreement dated27.9.95, the respondent agreed to lease the appellant's premises, situate at Plot No.50/52 William Street, for a term of five years commencing on I . 10.95 till 3 1.9.2001 .

However, during 1997. the respondent purported to terminate the agreement which move was resisted by the landlord/appellant. The respondent therefore continued with the occupancy but fell into arrears with the payment of rent.

r0 The appellant sued for the accumulated rent so far vide HCCS No.ll4911997. The suit was dismissed for want of prosecution under Order l5 Rule 4 Civil Procedure Rules. The appellant then filed Miscellaneous Application No.540 of 1999 to have the dismissal set aside which was also dismissed on23.7.1999.

The appellant thereafter filed HCCS No.1264 of 1999 to recover rent which had accrued during 1998-1999 and was in arrears. The respondent reacted by filing Misc. Application No.1609199 under Order 9 rule I B (2) for an order that the court had no jurisdiction to try HCCS No.l264 of 1999 as the previous suit No.ll49 of 1999, which had been dismissed under Order No.l5 rule 4 Civil Procedure Rules, was in respect of the same subject matter. The

learned judge allowing the respondent's application struck out HCCS No.1264 of 1999. Hence this appeal.

The memorandum comprises six grounds namely:

- "1. The trial judge erred in law and in fact when he did not address the preliminary objection raised by the counsel for the appellant in the trial nor make a ruling thereon. - 2. The trial judge erred when he did not dismiss the application as it was based on a defective affidavit. - l0 3. The trial judge erred when he did not dismiss the application, as it did not cite the proper and specific rules under which it was brought resulting in a miscarriage of justice. - 4. The trial judge erred when he did not take into consideration that the applicant could not raise issues of the trial, which were not pleaded nor provided for by law. - 5. The trial judge erred when he based his ruling on the principle of res judicatao which has not been raised by the applicant and addressed by the respondent during the trial. - 6. The trial judge erred when he made his ruling based on the principle of res judicata without looking at the proceedings and pleadings in the previous suit."

Regarding ground one, Mr. Asa Mugenyi, argued that the learned trial Judge failed to address the preliminary points in objection and make a ruling thereon when he raised them. He stated that the objections in point of law were that the affidavit in support of the notice of motion was incurably defective as it was not dated thus rendering the application to be without a supporting affidavit as required by law and that the notice of motion did not cite the correct law under which it was being brought, thus rendering it ^a nullity. Mr. Mugenyi submitted that the learned judge failed to record his objections and let them be addressed by both counsel, but merely asked him to defer them till his final submissions and went on with the hearing of the substantive application, notwithstanding. He asserted that the leamed judge later casually commented on the undated affidavit in his final ruling when allowing the respondent's application, only denying him costs for the defective affidavit. He asserted that this procedure led to ^a miscarriage of justice and prayed court to allow this ground of appeal.

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20 Mr. Bernard Tibesigwa, learned counsel for the respondent, supported the leamed Judge's decision pointing out that this ground of appeal lacked merit. He argued that there was a presumption in favour of the correctness of the record of proceedings. He stated

that the record did not indicate anywhere that Mr. Mugenyi ever applied to raise any preliminary objections. What Mr. Mugenyi said was a mere statement from the Bar. It was not evidence. Mr. Tibesigwa pointed out that an undated affidavit was not incurably defective as the court had power to order that the date be inserted and might penalise the offending party in costs, which the learned Judge did in this case. He asserted that failure to cite any law at all or the correct law under which an application was being brought was a mere lapse or technicality which would not vitiate an application. He prayed court to dismiss this ground of appeal.

The learned judge refening to the new suit held inter alia:

" . . I do not think this is proper and for this reason I will allow this application to strike out the Civil Suit 1264 of 1999. No costs are ordered as the applicant filed a defective affidavit and I ought to dismiss his therefore defective application on the authority of Teddy Namazzi vs Anne Sibo (1986) HCB 58. .(sic).

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No order is also made in respect of costs in the Civil Suit I have struck out. . . ."

The position at law is that if a party desires to have any point of law disposed of before the trial, he should raise it in his pleading by an objection in point of law, especially where it will substantially dispose of the whole action. However at the trial he may argue it whether raised on the pleadings or not. An objection in point of law must always be taken clearly and explicitly if it requires serious argument but not just an allegation wearing ^a doubtful aspect. - See Roberts vs Charins Cross etc. Ry 87 L. T. 732. lt is noteworthy that Mr. Mugenyi never filed in any affidavit in reply to the respondent's application. He was however entitled to raise the objection at the hearing. The record does not indicate that Mr. Mugenyi explicitly applied to raise any preliminary objections in point of law. In actual fact he made his submissions after Mr. Tibesigwa's submissions. He started by addressing the issue of jurisdiction which was the crux of the application before court, and half-way, when interrupted by the court for clarification, decided to comment on the application's failure to cite the law and the defective affidavit, and then drifted back to the substantive application. While arguing this application before us, Mr. Mugenyi tried to convince us that he protested to the Judge for failing to address the objections he had raised but that the Judge simply asked him to address them later in his final address to court. This is not reflected in the brief record of proceedings. There was

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no final address as claimed by Mr. Mugenyi and it is not clear why he thought there should have been any final addresses since this was a mere application. There is therefore no doubt that the learned Judge was correct to proceed with the substantive application as he did. This ground of appeal fails.

Mr. Mugenyi's complaints in ground 2 and 3 were to the effbct that the learned trialjudge should have dismissed the application as it was based on a defective affidavit and did not cite the correct law under which it was being brought. Mr. Tibesigwa's response was that these defects were curable as they were mere technicalities. They could not be allowed to vitiate an application.

It is trite that the defect in the jurat or any irregularity in the form of the affidavit cannot be allowed to vitiate an atfidavit in view of Article 126(e) of the 1995 Constitution, which stipulates that substantive justice shall be administered without undue regard to technicalities. I should perhaps mention that the jurat is the short statement at the foot of the affidavit indicating when, where and before whom it was sworn. It would follow that the learned judge had the power to order that the undated affidavit be dated in court or that the affidavit be re-swom before putting it on record. He was also correct to penalise the oftbnding party in costs. See Ex P.

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Harris L. R. l0 Ch.264, 266: and lbrahim vs Sheikh Bros. Invest. l,td. (1973) EA I 18 at 120. where it was held that the court could always allow a party to re-swear and re-date an affidavit as this would not go to jurisdiction of the court. Section ⁸ of the Oaths Act (Cap 52) which renders it mandatory to date the affidavit before tendering it in court simply means that an affidavit cannot be used without dating it or indicating where it was sworn and before whom. The errors or omissions regarding the date, place and the commissioner, cannot vitiate an application.

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Regarding the second point in objection that the Notice of motion did not cite the law under which it was being brought. The general rule is that where an application omits to cite any law at all or cites the wrong law, but the jurisdiction to grant the order sought exists, then the irregularity or omission can be ignored and the correct law inserted. In Naniibhi Prohusdas and Co Ltd vs Standard Bank Ltd. (1968) EA it was held:

"The court should not treat any incorrect act as ^a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of a most fundamental nature. Matters of procedure are not normally of ^a fundamental nature." The Supreme Court also emphasized in Re Christine Namatovu Tebaiiukira (1992-931HCB 85 thus

"The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights."

l0 It is therefore clear that failure to date an affidavit or cite the correct law or any law at all are mere errors and lapses which should not necessarily debar an application from proceeding.

All these omissions were corrected in the course of the hearing and the learned Judge commented on them in his ruling. Grounds 2 and 3 must fail.

Regarding grounds 4, 5, and 6, Mr. Mugenyi's complaints were that the leamed judge erred when he based his ruling on the principle of res judicata which had not been raised at the trial, and was neither pleaded nor raised by the applicant or addressed by the respondent during the trial. He pointed out that though the subject matter in both suits, I 149199 and 1264199, were the same, the

causes action were different. His contentions was that HCCS No.l 149/99 was not determined on its merits and that therefore the defence of res judicata which had not even been pleaded was most inapplicable.

Mr. Tibesigwa contended that the learned Judge had to consider and determine whether, where an application to reinstate a suit is dismissed, an aggrieved party can file a fresh suit or file an appeal. He stated that the learned Judge found that in such circumstances a party could not file a fresh suit because he had a right of appeal. He asserted that the two suits were substantially the same and that the Judge was conect to apply the principle of res judicata. Both suits were claiming damages for breach of contract which was basically the same relief, the only difference being in prayers, which he considered to be immaterial.

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The learned judge referring to the earlier court's refusal to reinstate HCCS No.l 149/99 held:

" . . . But being a decision in the suit, the reason being that the plaintiff who was present could not prosecute the suit, a judgement with reasons and a decree resulted necessitating leave of court to appeal to the Court of Appeal. Rather than doing

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this, the respondent/plaintiff s new advocates rushed into the wrong procedure and got trapped into more procedural webs. When they got strangulated they simply liled a new case. I do not think this is proper and for this reason I will allow this application to strike out the new Civil Suit 1264 of 1999."

l0 It is apparent from the record of proceedings that HCCS No.l149 of 1999 was dismissed under 015 rule 4, Civil Procedure Rules, which states:

> "Where any party to a suit to whom time has been granted fails to produce by evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may not withstanding such default, proceed to decide the suit forthwith."

20 The resultant default court decision was therefore a Decree. A Decree is the result of a reasoned judgement after a full hearing of either party or both parties. See Section 2, Civil Procedure Act (Cap.65). The learned Judge had the benefit of only one party's

evidence the other party having failed to adduce evidence, and took a reasoned decision. The resultant decree was appealable as of right. It is most unfortunate this court was not availed the full records of proceedings. Only the bare plaints in both suits are on record. Nevertheless I agree with Mr. Tibesigwa that the second suit being on the same cause of action was, therefore not sustainable.

In the result I consider that grounds 4,5 and 6 would also fail.

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I would thus dismiss this appeal.

Dated at Kampala this....................................

PAGI-BAI JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. MR. JUSTICE G M OKELLO, JA $\overline{ }$ HON. LADY JUSTICE A E N MPAGI-BAHIGEINE, JA HON. MR. JUSTICE A TWINOMUJUNI, JA

# CIVIL APPEAL NO. 46 OF 2000

### **BETWEEN**

### TARLOL SIVIGH SAGGU :::::::::::::::::::::::::::::::::::

### AND

## ROADMASTER CYCLES (U) LTD. ::::::::::::::::::::: RESPONDENT

(Appeal from the decision of the High Court (Okumu-Wengi, J)dated 2^nd March, 2000 at Kampala in Miscellaneous Application No. 1609/99)

# JUDGMENT OF G M OKELLO, JA

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I have had the chance to read in draft the judgment of Mpagi-Bahigeine, JA and I agree that this appeal must fail.

I wish to comment only on one point, that is, the effect of a decision made under order 15 rule 4 of the Civil Procedure Rules (CPR). $3()$ Statutory Instrument 65-3. There is no dispute that High Court Civil Suit (HCCS) No. 1149 of 1997 was dismissed by the learned Principal Judge under $0.5 r$ 4 of the CPR. It was argued for the appellant that the dismissal gave rise to an order but not a decree.

I do not agree. It was held by the former court of appeal for Eastern Africa in A. H. Zaidi vs Fraud H. Humeidan (1960) EA 92 that a decision made under this rule was a decision on the merit and gave rise to a decree. That decision is still good law.

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It follows therefore, that when HCCS No. 1149 of 1997 was dismissed. that dismissal was a decision on the merit which gave rise to a decree. A decree is defined under section 2 of the Civil Procedure Act to mean:-

"the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may either be preliminary or final. It shall be deemed to include the rejection of a plaint or writ and the determination of any question within section 35 or 95 of this Act, but shall not include:-

(a) any adjudication from which an appeal lies as an appeal from an order; or

(b) any order of dismissal for default.

**Explanation:** A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such

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# adjudication completely disposes of the suit. It may be partly preliminary and partly final."

As far as the High Court was concerned, the dismissal of the suit conclusively determined the rights of the parties with regard to the $\overline{5}$ matters in controversy in the suit. Following that decision, the appellant had only one option: to appeal against that dismissal. His application to set aside the dismissal or his filing of a fresh suit were all acts in misconception. The trial judge was therefore, right to dismiss the application and to strike out the fresh suit. There is $10$ thus no merit in the appeal and it must fail.

I would accordingly dismiss it. As Twinomujuni, JA also agrees the appeal is dismissed on the terms proposed by Mpagi-Bahigeine, JA.

Dated at Kampala this 13 day of December 2001.

Carlana

JUSTICE OF APPEAL.

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA.

# CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, J. A. HON. MR. JUSTICE A. TWINOMUJUNI, J. A.

## **CIVIL APPEAL NO.46 OF 2000**

### **BETWEEN**

#### TARLOK SINGH SAGGU................................... 15

# AND

# ROAD MASTER CYCLES (U) LTD ...................................

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# (Appeal from the decision of the High Court (Okumu-Wengi, J) dated 2^nd March, 2000 at Kampala in Miscellaneous Application No.1609/99)

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# **JUDGMENT OF AMOS TWINOMUJUNI.**

I have had the benefit of reading, in draft, the judgment of their Lordships A. E. N. Mpagi-Bahigeine, J. A and G. M. Okello, J. A. I am in agreement with their reasoning and conclusion. I would dismiss the appeal on terms proposed by Mpagi-Bahigeine, J. A.

B. the December 2001. Dated at Kampala .......

Amos Twinomujum Illullo JUSTICE COURT OF APPEAL