Bet City (U) Limited and Another v Swangz Avenue (U) Limited (Civil Miscellaneous Application No. 1177 of 2020) [2021] UGCommC 46 (14 July 2021)

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# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION)

### **MISCELLANEOUS APPLICATION NO. 1177 OF 2020**

#### (Arising from CS No. 521 of 2019)

1. Bet city (U) Ltd

$\mathsf{S}$

2. Jamal Sultan....................................

#### **VERSUS**

<table>

Swangz Avenue (U) Ltd.................................... 10

## BEFORE THE HON. JUSTICE RICHARD WEJULI WABWIRE **RULING**

The Application is brought under order 46 rules 1 and 2 of the Civil Procedure Rules and S.82 and 98 of the CPA Cap. 71 for orders that the consent judgment in civil suit No 521 15 of 2019 entered on the 5th of February 2019 be reviewed and set aside; that execution of the decree arising from that judgment be stayed and for costs of the suit to be provided for. The application was supported by the Affidavit of Jamal Sultan the 2nd applicant. The Respondent filed an Affidavit in reply deponed by Julius Kyazze the Managing Director of the Respondent. 20

The Applicants' were represented by M/s T-Davis Wesley & Co. Advocates while the Respondent was represented by M/s Signum Advocates. The parties addressed court in written submissions.

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In their submissions the Respondent raised three issues while the Applicants' raised only one issue which is similar to issue two of the Respondent The three issues are as follows:

- 1. Whether the Affidavit in Support of the Application should be struck out for being riddled with falsehoods? - 2. Whether the consent judgment should be reviewed and set aside? - 3. What remedies are available for the parties in the circumstances?

#### 30 Issue 1

## Whether the Affidavit in Support of the Application should be struck out for being riddled with falsehoods?

The Respondent's Counsel submitted that in the present case, the Applicant's Affidavit in support is riddled with falsehoods that are visible even on the face of it.

35 That paragraph 4 of the Applicant's Affidavit in support is a falsehood as the Applicants' allege that the Applicant made the payment of the aggregate sum to the Respondent That the said allegation is false as seen in Annexure B and Annexure C to the Affidavit in reply sworn by Julius Kyazze, the Respondent's Managing Director. That the 1st Applicant had only paid the 1st instalment under paragraph 2.2 of the Consent Judgment, and reneged on the payment. That the 1st Applicant, through its Directors, clearly indicated in an email 40 to the Respondent's Advocates that the reality is that 5m is what is available and started making counter-proposals not envisaged in the terms of the consent judgment.

That the falsehood told in paragraph 4 is central to the Applicant's case since it is the basis of the assertion that the Applicants' are not indebted to the Respondent

That another falsehood is in paragraphs 5 and 6 of the Applicants' Affidavit in support 45 when they claim to have discovered that the Directors of the 1st Applicant are guarantors of the 1st Applicant yet they signed on every single page of the Consent Judgment. That

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the 2nd Applicant's denial of the signatures on the other pages of the Consent Judgment except the one on the third page during cross examination was an attempt to deceive this Court. He prayed that Court expunge the offending Affidavit in support, off the record,

for the falsehoods it contains and dismiss the Application it purports to support.

The applicant chose not to reply to this issue as they did not file an Affidavit in rejoinder to address the same.

Order XIX Rule 3(1) of the Civil Procedure Rules, SI 71-1 provides as follows;

"Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge able 55 to prove..."

I have looked at paragraph 4 of the Applicant's Affidavit in support which the Respondent cites as containing falsehoods. It states that;

'4. That indeed the 1st Applicant made payment of the said aggregate sums to the Respondent company.' 60

The aggregate sums referred to can be seen in their preceding paragraph 3 which states that;

*'3. That on the 25th day of October 2019 the 1st applicant entered into a consent judgment wherein* the 1st applicant company purportedly agreed to pay the Respondent an aggregate sum of Ushs. 183,433,100/ as full and final settlement of the Respondent's claim.'

Paragraph 4 would therefore mean that the 1st applicant paid a sum of Ushs. 183,433,100/ to the Respondent, thereby fully settling their claim in the consent judgment.

Order XIX Rule 3(1) of the Civil Procedure Rules, clearly states that Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove.

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In making this allegation, the Applicants' did not attach any evidence to prove the same. 70 While on the other hand, the Respondent through paragraph 7 of their Affidavit in reply attached evidence showing that there was still an outstanding balance. The applicant did not file an Affidavit in rejoinder to refute this claim.

In the case of Tom Mukalazi versus Davis Kisule (1995) KALR 860 court held that where there is no evidence for the defence, the Plaintiff's account of what happened has to be accepted. In the instant case where evidence is presented through Affidavits, since the Applicants' did not file an Affidavit in rejoinder, it follows that they had no objection to the evidence presented by the Respondent in their Affidavit in reply.

The other falsehood that was raised by the Respondent was in respect to paragraphs 5 and 6 of the Applicants' Affidavit in support. In those paragraphs the 2nd applicant states 80 that they discovered that the Directors of the 1st Applicant are guarantors of the 1st Applicant which wasn't their intention. Upon perusal of Annexture JM1 to the Applicants" Affidavit in support, I can see that both directors of the 1st applicant signed on every single page of the Consent Judgment. That means that they also signed on page 85 2 which has clause 4 and 5 that expressly cite them as guarantors of the $1^{st}$ applicant. During cross examination, the 2nd Applicant denied the signatures on the other pages of

What is important is that the $2^{nd}$ applicant does not dispute the terms of the consent but rather his dispute is on what he understood it to mean. In the case of **L'Estrange versus**

the Consent Judgment except the one on the third page.

90 Gracoub Ltd (1934) 2 KB 394 court held that a party to a contract is bound by their signature consenting to a contract containing an exclusion clause written in regrettably small print. This means that a person is bound by a document which he signs, whether he reads it or not. As such the 2nd applicant's claim that they discovered that they were guarantors in a document they signed is a falsehood. As such, I find that paragraph 4, 5

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and 6 of the Applicants" Affidavit in support contains falsehoods as the Applicants' were 95 not able to prove the same.

The Respondent prayed that this court dismiss the application on that ground to which he cited the case of Anthony Okello versus Ojok B'LEO & Ors, MA No. 26/2006 where Justice Stephen Musota dismissed the application based on the falsehoods the applicant

had told court in his Affidavits. In that case his lordship relied on the case of Bitaitana V Kananura (1972) HCB where court held that where there are false hoods in Affidavits, the entire Affidavit has to be disregarded and application rejected and the case **of Joseph** Mulenga V Photo focus (U) Ltd (1996) VI KALR 19 where court held that where an Affidavit in support of an application contained obvious falsehoods, such false hoods rendered the entire Affidavit suspect and an application based on such an Affidavit must fail.

I have considered the decision of my learned brother and I see no reason to depart from it. The Applicants' Affidavit in support contains falsehoods that are central to the Applicants' case. The Affidavit is accordingly disregarded.

This leaves the Notice of Motion without a supporting Affidavit, an Application without 110 a supporting Affidavit is without evidence and cannot therefore stand, it collapses and is accordingly dismissed with costs for the Application awarded to the Respondents.

Delivered at Kampala and signed copies for the parties placed on file this

$14$ fe .......day of

$\mu$ v, 202+ 115 RICHARD WEJULI WABWIRE

JUDGE

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