Moses Kamya v Ibrahim Mpungu (civil suit No. 279 of 2011) [2012] UGHC 417 (24 May 2012)

Full Case Text

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT NAKAWA MISC APPLICATION NO. 279 OF 2011 [ARISING OUT OF MISC APPL NO. 008/11

## **AND**

CIVIL SUIT NO. 11/2003]

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**MOSES KAMYA:**

**IBRAHIM MPUNGU:**

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# **VERSUS**

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**APPLICANT**

### RESPONDENT

$15$

#### Before: HON. LADY JUSTICE FAITH MWONDHA

# RULING

This application was brought before me by counsel for applicant Ms. Mukasa Lugalambi Advocates and Solicitors. It was brought under S.98 of the Civil Procedure Act and Or.9 r23 of the Civil Procedure Rules. It was seeking for orders that;-

(1) this court reinstates the application dismissed on the 29th June 2011

$(2)$ costs of the application be provided.

The application was supported by the affidavit of the applicant Moses Kamya and briefly the grounds were;

- that the applicant was prevented to be in court for reasons beyond his $-20$ $i)$ control - that it's in the interest of justice that the matter before court be hard on $\overline{ii}$ merit - that the applicatio9n has a likelihood of success. $iii)$

At the hearing, the parties were directed to file written submissions. On perusal of $-5$ the full affidavit attached on the application to support it, i find it contradictory sand very untruthful as hereunder;

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THE REPUBLIC OF UGANON $3.300a$ $3010049595$ ASST-DEPUTY RECORDERS - KANANA

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a) in paragraph 5, he deponed that though the application was causelisted to be heard on 29/06/2011, they were never served with the documents of court since the Registrar had not endorsed it. In paragraph 6, he deponed that the Registrar endorsed it on 28/06/2011 and there was no way his counsel or himself would have known that the application would be heard on 29/06/2011 so as to attend court. However in paragraph 4, the applicant had stated that his counsel attempted to attend court to be heard on the application before the judge, unfortunately he was not robed and the Honourable Judge could not 'see him'. He again said in paragraph 3 that on that day, his lawyer Mukasa Lugalambi had another case before the Registrar High Court Nakawa when he saw that his application had been causelisted for that same day.

$-10$

$15$

$2s$

In addition to the above contradictions and inconsistencies, there is a letter on record from Mukasa Lugalambi dated 14/Nov/2011 to the Registrar High Court Nakawa, its contents are as hereunder and i quote;

'the above application for re-instatement of the application was dismissed on 29/June/2011 was filed in this honourable court on 21/07/2011 and was fixed for hearing on the 11th November 2011, unfortunately the said application was not heard because it had been placed before the Registrar who had no jurisdiction to entertain it. Therefore we pray that the said application be fixed for hearing before the Honourable Judge'.

Basing on those statements, it's clear that, there was no reason able justification whatsoever which prevented the applicant to attend court, it comes out so clearly that the applicant was aware of the time and date but decided at one time attend to the Registrar whom he knew very well that he is not ceased viith the jurisdiction to hear this matter.

But to make matters worse, the applicant swore an affidavit which contained apparent falsehoods that he could not be believed.

Or 9 r22 of the Civil Procedure Rules is very clear. It's the applicant who sought for a hearing date and it was given, so the fact of not getting court process served on him doesn't arise in my view. This was the applicant's case. In any case as I have pointed out earlier in this ruling, the applicant was not coming to equity with clean hands.

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i concur with the case learned counsel for 11 vs Kananura [1977] HCB 34 which. b.ehb- respondent has cited Sirasi Bltaitana

- *. . ,l','onsij,en^l^-> tn af'iaavits can't be ignored however minor inc.. a sworn affidavit is not a document to be treated lightly. If it contains dn obvious falsehood, then it naturally becomes suspect.* - *An application supported by a false affidavit is bound to fail because the applicant in such a case does not come to court with dean hands to tel! the truth'*

The affidavit was so full of falsehoods that the submissions could not sustain it because the submissions were merely substantiating falsehoods which could not hold.

In addition to the above, there is no basis for setting aside the dismissal as the applicant has no probability of success: as made the Ruling earlier in the? same case with the same parties,

Accordingly I find no merit in the application as it's full of falsehoods and can't be sustained in any court of law.

Application is dismissed with costs.

Right of appeal explained

FAITH MWONDHA JUDGE 24/052012