Mugwiri and Another v Kyanamira (HC Miscellaneous Application 177 of 2022) [2023] UGHCLD 149 (21 February 2023)

### THEREPUBUC OFUGA}{DA

### IN THE HIGH COURT OF UGANDA AT MUBENDE

## HIGH COLIRT MISCELIANEOUS APPUCATION NO. I77 OF 2OZZ

# (ARISING FROM CTVIL APPEAL NO. I5 OF 2O2Z)

#### AI. SO

# (ARTSTNG FROM CIVIL SUIT NO. 04I OF 2. O2n OF THE CHIEF MAGISTRATE,S COURT OF MTYANA AT MTYAI. IA)

I. MORRIS MUGWIRI

CANTS

2. MOLLYMUGWIRI

### VERSUS

]

# KYANAMIRAYOSIA NDENT

# BEFORE: HON. JUSTICE MOSES KAZBWE KAWUM

#### RULING

This is an Application brought by way of Notice of Motion under Article 28 (I) of the Constitution of the Republic of Uganda I995, Sections 98 of the Civil Procedure Act and 33 of the Judicature Act Cap 13, Orders 49 rules I and 2 and Order 52 rules I and 3 of the Civil Procedure rules S.l. 7I-I seeking for orders to strike out a memorandum of Appeal in Civil Appeal No. I5 of 2022 for being barred in law and for costs of the Application and the Appeal to be provided for

This Application arose from an Appeal from the judgment of His Worship Kagoda Samwel Mose Ntende delivered on the ?2 day of lvlarch 2. O2I. 1'he main suic was filed by the Applicants against the Respondenc for trespass on a piece ofland comprised in Ssingo Block 172Plot 54, Now plot 82 land at Bulamu.

Judgmenr was enrered in favour of che Applicants who initiated execution proceedings and on the In day of JuIy ?. O22 che Respondenc was summoned to show cause why execution should not issue against her. When the Respondents' Counsel appeated on the I" day ofJuly ?. O?2 he informed Court thac the Respondent had filed an appeal in this Coutt and in proof of che allegation, he showed the trial magistrate a letcer requesting for the record of proceedings.

The grounds of the Application are con[ained in the Affidavit of Namutete Henry Mugwanya <sup>a</sup>donee of powers of anorney of rhe Appiicants in respecc to Civil Suit No. 47 of 2O2O and civil suit No. 46 of 2020 which are btiefly that: -

Thar the Applicants obtained judgment in their favour from the lower Court. When the Applicanrs commenced Execution ofthe Court orders, Counsel for the Respondent appeared in Court to show cause why execution should not issue against the Respondent and informed Court rhar the Respondent had commenced an Appeal and that he also intended co file an Application for sray of execucion and that the High Court had sent a lecer calling for the 61e from rhe lower Courr. That he is informed by his lawyers which information he verily believes ro be rue and correct thac the Respondents' failure to serve the Notice of Appeal and the Memorandum of Appeal with 2I days from che date of commencement of che Appeal makes the memorandum of Appeal barred in law.

The Application is opposed by rhe Respondenr who contends that he informed the lower Courr rhat he had commenced an Appeal by filling a Notice of Appeal. That he was informed by his lawyers that the Applicant's lawyers retained a copy of the memorandum of Appea.l but rhat his lawyers concenrrated on arguing the Application for execution and forgot to demand that the Appiicants' lawyer acknowledge receipt of a copy of che memorandum of Appeal. Thar his lawyers advised him and he verily believe it that the Applicant has no locus to file rhe presenr Applicarion and rhar a preliminary objection would be raised to rhat effect during the heating.

The Applicancs filed an affidavit in rejoinder in which they contend that the affidavit in reply is incurably defective, that the affidavit is full of narratives, argumentative and submissions, that the Respondent did not pay stamp dury for the affidavit in reply, that the Appiicant's lawyers never received a memorandum of Appeal, that there is no error or omission but the Respondencs never served the memorandum of Appeal, chat the Applicant has locus co file the Application.

#### LEGALREPRESENTATION

The Applicants are represented by MS. .[ohn F. Ssengooba & Co. Advocates while the Respondent was represented by M/S Nsubuga Katosi Associated Advocates and legal consultants.

The Applicants were represented by Mr. A-lex Kagarama while the Respondent was in Court and also represented by Mr. Kakooza holding brief for Mr. Moses Nsobya her Counsel. Both Counsel filed written submissions which I have read together with the pleadings and dre evidence but I will not reproduce the submissions,

#### DECISION

Both Counsel raised preliminary objections which this Court will first resolve and it will determine whether the preliminary objections dispose of the Application as a whole

# a) That the Respqrdent &d nc pay stamP duty

Section 32 (I) G) \*d G) of dre stamp duty Ac No. 13 of ?. OI4 as (amended) provides that The sramp dury Act, No. I 3 of 2OI4 an instrument chargeable with duty sha1l norbe admitted in evidence for any pulpose by a person who has by law or consen! o[the parties authoriry to receive evidencei or be acted upon, registered or authenticated by a person, or by a public officer, unless the instrument is duly stamped.


The paymenc of Court fees on affidavits is governed by the Judicanre (Court Fees, Fines, and Deposic) Rules SJ I3-3 which provides under mle 6 that no document in respect of which a fee is payable shall be used in any legal proceeding, unless it has been initialed as provided in rule 4 ofthese Rules; or unless the court is otherwise satisfied that the proper fees in respect of the documenr have been paid; but if any such document is rhrough mismke or inadvertence received, filed or used in any coutt without rhe proper fees for it having been paid, the court may, if ir thinks fit, order that such fees as it may direct be paid on that document; and upon the fees being paid, the document, and every proceeding relative to it, shall be as valid as if the proper fees had been paid in che first inscance.

Counsel for the Applicant argued that no stamp ducy was filed for the affidavir in reply, his argument is based on the facr that there was no revenue stamp appended on the affidavir in reply when it was filed in Court. Indeed, aftet looking at the affidavit in reply, there was no revenue stamp appended thereon however there was pa)T nent slip on file to a tune of UGX, 1,500/ - as filing flees by the Respondent.

If the Respondent had not paid stamp ducy, Coutt does have the power to order a parry to pay rhe balance ofche court filing fees ifless chan what is provided for under the law has been paid as per Section 97 of the Civil Procedure Act. This objection is accordingly over ruled'

# b) Paragapk 4,5,6,7,9, I0, II, 13, 15, and 16 being nef,rative aqgumerrativc full of submissions.

Ordcr 19 nrle (3) (I) provides that affidavits shall be confined to such facs as the deponenr is able of his or het own knowledge !o prove, except on inrerlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated. The contents paragraPhs 5,5,7,9,I0, II, 13, 15, and 16 is information from rhe Respondents lawyers and he cleatly smted that they are statements from her lawyers which she believes to be true and correct. I am cherefore left with no opdon but to admit the said paragraphs as statements of belief.

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As regards paragraph 4 of the Affidavit in reply, I have perused the record of the lower Court and found that the Respondent did not atrend Courr. As such she cannot depone matters from her own knowledge yet she was absenr Paragraph 4 of che affidavit in reply offends Ordct 19 nrle 3 of the Civil Procedrre Rutres SJ 7I-I while pangraphs 5, 6, 7, 9' IO, Il, 13, 15, and 16 which are based on information whose source is revealed ate maintained. The law is that where an affidavic contains aveffnencs that are offensive and others that are not, the offensive averrnenm may be expunged from the affidavit and, if the remaining averments are capable of sustaining the parry's claim, the same may be relied upon by the Court. See: RTD. COL DR. Y,,,WA, BESIGYE VS THE ELECTORAL COMMISSION & ANOTHER" PRESIDENTIAL PETION NO. I OF 200I. Paragraph 4 o[ the Affidavit in reply is accordingly expunged ftom the affidavit. Obiecrion No. 2 only succeeds in parr

# c) Evasive denial

#### Decision

Ir is setded law tlar where a written statement of defense contains general denials to the Plaintiffs' allegations, offend the provisions of O 6 r 8 of the Civil Procedure Rules which requires each parry to deal wich each allegation of fact as denied.

Order 6 rule 8 CPR provides: "It shall not be sufficient for a defendant in his or her writren sraremenr to deny generally the grounds alleged by the statemenc of clarm, or for the plaindff in his or her writcen statement in reply to deny generally che grounds alleged in a defence by wal of counrerclaim, but each parry must deal speci6cally wich each allegation of fact oFwhich he or she does nor admit the ffuth, except damages"

Rule I0 thereof provides - rhat when a party in any pleading denies an allegation of facr in the ptevious pleading of the opposite parq/, he or she mus! not do so evasively, but answer the poinr ofsubstance. Thus, if ir is alleged that he or she received a certain sum of money, it shall not be sufficient to deny that he or she received thac particular amount, but he or she must deny that he or she received that sum or any Part of it, .. .'.....

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Furrher, order 8 rule 3 of the rules stipulates tJrat; "every allegation of fact in the piaint, if nor denied specifically or by necessary implicarion, ot srated to be noc admitted in the pleading ofrhe opposite parry, shall be mken to be admitted, except as against a person under disabiliry; but che court may in its discretion require any facts so admitced to be proved otherwise by chat admission".

Furrhermore, Order 13 r.6 CPR provides: "Any parry may at any scage of a suit, where an admission of facm has been made, either on che pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be endded to, withouc waiting for tle determination of any othef questions between the parties; and the court may upon the application make such orders, or give such iudgment, as the court may think iust."

# Rule 30( I ) provides -Striking out pleading

The courr may, upon application, order any pleading to be struck out on the ground rhat it discloses no reasonable cause of action or answer and, in any such case, or in case o[ d-le suit or defense being shown by the pleadings to be frivolous or vexatious, may order the suit ro be smyed or dismissed or judgment be entered accordingly, as may be iust.

In alignmenr with the above principles, it is not in doubt that every s[atement of claim must be specifically dealc wirh in the defence. But it is also important to note that under order 8 rule 3 of rhe CPR, an allegation of facc in a plaint which is not specificaily denied is taken as admitted. Court however remains with some discretion under that rule to require any facm so admitted to be proved otherwise chan by that admission.

Secondiy, where admission of facts is made, a judgmenr on admission may, uPon application by a parry be entered ar any srage ofthe suit. For courr ro enrer such judgment, the admission has ro be clear and unambiguous, stating precisely what is being admitted. The respondent in this case denies the allegations in the affidavit in support of the Application which are nonservice of che Nocice of Appeai and the memorandum of Appeal. See paragraphs 5 and 6 of the Afidavit in reply.

Evasive denial by a defendant and consequently his/her admission of some faccs may not on their own operace to jusd\$, the striking out of the entire defence.

Where court remains in doubt of certain facts, order 8 rule 3 of the CPR comes into play to exercise its discretion co leave the maffers for trial.

The Respondenr's rhe pleadings in my considered view therefore raise criable issues, key amongsr which is the dererminarion ofthe fact ofservice and whether the Applicant has locus smnd to insticute the Application. This objection is therefore overruled.

## d) Loors standi of thc Applicarrt

Blackts law Dictionary 9th Edition, defines rhe expression "locus standi" to mean rhe right to bring an action or to be heatd in a given forum. According to Paragraph I of the Affidavir in support of che Application, che deponent of the Affidavit is a lawful attorney of rhe Applicans. Section Ia6 (I) and (2) of the Registration of Tides Act "empowets a proprietor of any land under the operation of the Act or of any lease or mortgage, to grant a power of Attorney ro any person to act for him/her in dealing with the land.

The Respondent's argument is that the deponent of the Affidavit does not have the right to bring this action. See paragnph 14 of tfie Affidevit in reply. A Power of Artorney is <sup>a</sup> document that grants audroriry ofche Principal to an agent to act on behalf of an agent. Such authoriry must be granted by deed. SEE GOLD TRUST BANK (t, LTD VERSUS IOSEPHTNE ZALWANGO NSIhEE HCCS 226/ 1992.

The quesrion co be answered in resolution of this preliminary oblection is whether the powers to institute this application was granred under che power of attomey or whether the Applicants exetcised incidental powers under the power of Attorney to inscicute this Application or ir was done in excess of the powers granted and in order co determine this one has to look at the powers granted to the donee. See the cases of MIDLAND BAI{K LIMTED V RECKITT [1933] A"C I AT 15: BRYANT, POWIS, AI{D BRYANT LIMTED V LA BANQUE DU PEOPLE [1893] A"C I70 AT I77 wherc it was held that in instances whete there is need to decermine whecher an ac! was done in excess of auchority conferred under a Power of Artomey, then construction of the whole instrument of authoricy is to be restricted to the four corners of the instrument.

The decided cases have established that "a power of Attorney should be constmed stricdy." - See FREDERIO( IJ( ZAABWE VS. ORIENT BANK LTD AND OTHERS S. C. C-4. M/2@6, THE EXECUTRX OF TI'IE ESTATE OF SAM NSIIIBE, (I'. IOW DECEASED) HIGH COURT CIVIL SUIT NO. 2226 OF 1992.

A power of artorney may be general or rescrictive and in order to determine the nature oFthe power of attorney, one has to look within rhe four Corners of the document.

I have looked ar rhe powers ofAttorney granted to the Applicant and attached to the Affidavit in support ofthe Application as annexrure "A". The powers provide as here under;

- "WE, MORRIS MUGWIRI AI{D MOLLY MUGIVIRO residens in Kito Village Kira Town Council, Wakiso district do hereby APPOINT, ORDAIN , NOMINATE, EMPOWER or otherwise aurhorize NAMUTETE HENRY MUGWAI. IYA of Naama L. C. I Naama Parish, Mityana Municipaliry , Miryana District (herein referred to as the ATTORNEY ) to be my TRUE and I^AWFLILL ATTORNEY and particularly to do the following acts as hereunder:- - I. -fo prosecute, defend and reptesent us in Court in respect to Civil suir NO.4I OF 2O2O and as well as civil suit No. 46 of 2020, all currendy pending rhe determinarion of Court at Miryana - 2...... - 3. ..... - 4. To appear in Court in the above stated civil suit numbers with full authority to testiE/, to answer any question in respect to the above land and or to setde the above stated cases finally.

5. ...

AND WE MORRIS MUGWIRI AND MOLLY MUGWIRI, have given these powers of attomey WILLNGLY and CONSCIOUSLY and the same shall remain in force unril when the obligarion created above have been fuifilled or untll we revoke dre same".

From the forgoing, the powers given to rhe Applicant are restrictive and only limited to civil suit No. 4I of 2O2O and civil suit No. 46 of 2020, as such the power of affomey did not give Namutete Henry Mugwanya the powers co insticute the present Application. I also do not find any incidencal powers for che Applicant to inscitute chis Applications and rhis is more so because civil suit No. 46 of 2020 was concluded.

I therefore find rhat rhe Applicanr did not have locus stand to institute \*ris Application. The Respondent's preliminary objection is cherefore upheld.

ft is rrite rhar a preliminary objection raises a pure point o[ law, which if argued successfully disposes of the whole matter (See. MLXIS. A' BISCUIT MANUFACTTRING CO. LTD VERSUS WEST END DISTREUTORS LTD [1969] EA 6e5.

However, chis Court has inherenc powers undet SECTION 98 OF THE CML PROCEDLIRE ACT to make such orders as may be necessary for r1-re ends of juscice or prevent the abuse of the process of Couft. UPon perusal o[ the record, I have noted that the Respondent did not serve the memorandum of Appeal and notice of Appeal nor did he apply for extension of cime to serve the same.

An Appeal is a suit as defined in SECTION 2 CK) OF THE CIVIL PROCEDURE ACT CAP 7I and as such the service of the memorandum and Notice of Appeal should be in <sup>a</sup> manner provided for service of summons. See under ORDER 49 RULE 2 and the case o[ ORIENT BANIK LTD VERSUS AVI ENTERPRISES LTD FIC. CA- 002 OF 2013. As such the memorandum of Appeal should have been served within 2I days as provided under oRDERSRULE(r)2.

fhe burden o[ proof in civil matters is on the one who aileges, and it must be discharged on the balance of probabilities. See the case of OI,ANYA JAMES VERSUS OCITI TOM 8r 3 OTHERS HCCA NO.0O64 OF ?. OI7. However , when that party adduces evidence,

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which is sufficient to raise a presumption that what he alleges is true, the burden of proof shifts to the other party to counter allege and produce evidence to rebut the presumption. See the case of KYOTERA VICTORIA FISHNETS LTD V THE COMMISSIONER GENERAL, UGANDA REVENUE AUTHORITY CIVIL SUIT NO. 224 OF 2014.

Counsel for the Appellant has the evidential burden to produce evidence to prove that he served the memorandum of Appeal upon the Respondent who denied the service. Proof of service is by way of an affidavit of service but non was filed on Court record. See the case of

#### **KAMAU LORNA MUSANYUSA KATSIGAZI BENSON VERSUS** MISCELLANEOUS APPLICATION NO.021 OF 2021.

For the above reasons, I find that the Appellant did not comply with the requirements of Order 5 rule I (2) of the Civil Procedure Rules and as such Civil Appeal No. 15 of 2022 is incompetent for lack of service of the memorandum of Appeal.

The memorandum of Appeal is accordingly struck off the Court record. Each party shall bear costs of this Application.

#### Obiter

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I have noted that Namutete Henry Mugwanya was a donee of powers of Attorney in Civil Suit No. 40 of 2022 filed in the Chief Magistrate's Court of Mityana at Mityana wherefrom the Appeal and this this Application emanated from but the heading of the suits maintained Morrris Mugwiri and Molly Mugwiri as the parties without indicating that they were suing through him. Where parties are suit through a done of powers of Attorney, the pleadings should clearly indicate that such parties are suing through their lawful Attorney and the heading should reflect the same.

I so order

Moses Kazibwe Kawumi Judge 21February 2023