Kamwenge Produce Dealers & General Merchandise v Musisi (Civil Suit 534 of 1992) [1992] UGHC 35 (2 September 1992)

Full Case Text

The Hon. Mr. Jishee Egonda Aflande

THE REPUBLIC OF UGAC DA

IN THE HIGH COURT OF UGASIN AT RAMPALA

CIVIL SUIT NO. 534 OF 1.9.

KAMMENGE FRODUCE DEALERS & GENERAL ALCHANDISE )

MUSISI MATTIA SSAEALCKGO

<pre>::::::::::::::::: PLAINTIFF/APPLICANT</pre> VERSUS :::::::::::::::::::: DLFEnDANT/RESPONDENT

BarO. E: The Honourable Mrs. Justice M. Missiu.

RULING.

When the application for a temporary injuction come up for hearing Mr. Kawenja - Kasirye, counsel for the respondent raised some preliminary objections. First that application did not have a suit number as it does not apply to the chamber summons, and that it had no miscellenous number of reference. Dr. Barya counsel for the applicant responded on this ground of objection by submitting that the defender to an already alare of the number of the substative suit and the properly served with the plaint. Counsel ounitted that a more omission of the Civil Suit number from the phasber came he should not be a basis for rejecting the suit and n application crising therefrom.

I agree with counsel for the applicant that a meromission or an oversight to write down a must $x$ of a Civil suit is not fatal. This is a matter which combe corrected especially in view of the fact that the defend int/respondent was already aware of the number of the civil wit from the plaint. I am of the view that this matter which can be corrected without having to strike out wh. whole application. This ground of objection in therefore overruled as at is frivolus.

$\frac{1}{2}$

The second objection was that the sydiction is defective in material facts as the agreements which the bing relied on in para. 2 of the affidavit of Charl & Bandaya are not att ched to the application or the subst ative entr. That what is attached are two annextures A & B of diaments expressed in vernacular language, they are not accompanied by an lenglish traslation of themselves, together with the lattr retation of the documents. These two documents form of the opplication and the main suit according to council. He also referred court to S. 90 of Civil Procedure Act rates talks about the language to be used in court proceed up, Counsel submitted that the documents do not exist in the eyes of the law and that in their absence there was no cont b fore court.

Counsel for the applicant in response submitted that the objection is not to the existence of $c \in \mathbb{R}^n$ of: but only to traslation thereof. He contended that that documents are attached to the plaint it is not necessary to attach them to the application. He submitted that what is important et this stage is to know that the corer call with and in ve been breached. That the provisions of trush tin could still be met when the actual suit comes for he ring.

I sgree with counsel for the recondent but th language of court is spelt out under S. 90 of C. P. act but this matter of translation of the documents in 1d not have been raised us a preliminary objection, it is a matter of evidence which will arise at the huaring of the upplication. The fact that there is no English traslation of the documents attached, does not me.n that there is no suit acfore court as counsel submitted. This objection must also fail.

$\mathbf{2}$

$...$ /3

The next objection is that perigraph $\Phi$ of the offiadavit is based on information and belief but the cause of information is not stated counsel referred court to the case of Standard Goods Ltd. Vs. H. Arachchand A Ju & Co. Civil Appeal No. 21 of 1950 where it was stated and a ffid vit made on information should not be soled upon by court unless that source of information is mentioned and weifid. That an affid wit which does not fullful this condition should not be relied on by court and should be thrown out. Counsel for the applicant submitted that this us that the issue which goes to the merits of the application are should not be allowed as a p eliminary issue.

$\epsilon$

$\mathfrak{Z}$

I have looked at the case of Stand rd Goods Ltd. cited by counsel for the respondent which was $c \perp d$ its a proval by court of Appeal for Eastern African it did case of Noor Mohamed JanHohamed cited infra. Itaink it is now accepted principl9 by courts that the generallis that when a doporont makes a statement on his information and belief, a must state the ground of that information and belief. This is to stop the dr wer of an affidavit from taking advance e and putting in satements he cannot substantiate in the ho $\div$ that the court will just act on it.

In the present application the efficient in supert of the application, states that paragrans + 1 m2 5 are true to the best of his information and belief, for clarity I shall reproduce the paragraphs.

> "4. That the def no no is disposing of the suit property by sale at a cost of skilling . 3000/= (shilling three thousand only) per pole and other proc.cds

> > $...14$

therefrom would not be enough to cover the plaintiff's claim whicn is well onr 20 n/= (shillings twenty ;.:illi n only)

"5 That the defend., nt/i'cs^ondent is an ordiilury pc •.sa; t with*j*ut ether substantial sources of income and would tor lore not be able to atone ic-r his breach of contract by tnc substontic1 damages likely to ari.c from the suit'.'.

I agree with counsel for the respc a-.'.ant tlr b these two paragraphs are fundamental to tn: applic.ton as they form the basis for the applicant. In tile circumstances the court cannot cake any decision on this affidavit ..-hi.ch has an incurable defect. The ground of objection is therefore upheld.'

another objection r-ised by counsel f\*.=? uh- respondent is that the appliant admitted on oath that h-. is claiming in th ni'-in suit Quantified amount of damages. Counsel submitted that the equitable remedy sought under Or. 37 cannot be granted where other forms of remu-die..; <-re adequate. Counsel referred court to the- case of liop\_r\_ Muhfh.ed Jan Mohamed Vo. Kassamali Verji hodhan /1953/ 20 .§. where it v^s suited that a temporary injucti^n io an equitable remedy which cannot issue except in special circumstances namely irreparable likelihood of injury Vis sube.te^ti. 1 u.u;: :>s v-nich cannot be adequately remedied or atoned for by . .m-gos. On .. this objection I agree, with counsel fo. applicant that this is an issue w..ich should ;r,.u d at

nhi. ctii x ir> also overrule

Lastly coun&vl for the respondent submitt t th- a-:, licaticn is vtgut 3.s it does net state under which s-ule it is brought. Counsel for the a-P^^can^ submitt^d that th;. chamber summons clearly stat d that the application is brou.-, v uudcr Or. 37 rr. 1 , 2, and. 9 of Civil Procedure Rules. 1 a-c of thv. opinion that the rules under which this applic Lion is brought art clearly stated in the chamber summu.ns, I thcr-for..- do not agree with counsel that th rul-s unchr Hiich this application is brought are vague. This uDj.cuiun io therefore overruled.

In contusion all the other preliminary objection have b-..en overruled but this application for a t^i/orary induction is struck out . s it is supported by \*i> incur b lu c\ ieccive affidavit which cannot be act«.d upon by riio court. Costs will be in the cause.

KlltbJJU JUDGE. 2/9/92.

9 /9/92

Dr. i-arya - for the applicant hr. Kawenja - Kasirye for the Respondent hiss 1'ortunato Kamukama - Court Clerk Ruling delivered before the above.

M. KIRibJU JUDGE.

9/9/92