Peter and Brothers Limited and Another v R.T. Enterprises Limited and Others (MISCELLANEOUS APPLICATION NO. 746 OF 1999) [1999] UGHC 55 (17 November 1999)

## THE REPUBLIC OF UGANDA

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

## MISCELLANEOUS APPLICATION NO. 746 OF 1999

#### ARISING FROM HCCS NO. 638 OF 1999-11-17

#### APPLICANTS PETER AND BROTHERS LTD ] INTERIOR CLUE LTD. ] 1. 2.

## VERSUS

R. T. ENTERPRISES LTD. ] ZANCO INTERNATIONAL LTD.] AHMED TEJANI ] ... RESPONDENTS 1. 2. 3.

IO

# BEFORE:THE HONOURABLE LADY JUSTICE AG. A. C. OKELLO RULING

This is an application by Notice of Motion brought under Section 77 of the C. P. A. Order 40 rules <sup>1</sup> (2), (3) and (4) as well as Order 48 rules <sup>1</sup> and 3 of the C. P. R. seeking for court orders that:-

- 1. Leave be granted to the applicants to appeal to the Court of Appeal against my Ruling given on the 22.7.1999 dismissing the applicant's four grounds of objection and upholding one in part. - 2. Costs of the application be provided for. - The application is supported by the affidavit of Ms Dora Nakabuye deponed to on the 29.7.1999. the grounds can be categorised into two. The first category consists of grounds why leave to appeal is applied for while the second category contains possible grounds on which the actual appeal will be based should leave be granted. The first t^Q-Sflt.s of\_grounds ofjhe application are that:-


1) The applicants are aggrieved by the whole of my ruling and decision given on the 22.7.99 and have instructed their Counsel to appeal to the Court of Appeal.

**<sup>I</sup> U**

2) Counsel for the applicants was not able to apply orally for leave to appeal at the time the ruling was delivered as the same was delivered by the Registrar His Worship Musota.

The second group of grounds are those the applicants intend to use as substantive grounds of appeal in the Court of appeal. They consist of the following:-

- **10** (a) The Learned Lady Ag. Judge erred in law when she ruled that affidavits are not pleadings. - (b) The Learned Lady Ag. Judge erred in law and infact when she ruled that paragraphs 18 and 20 of Ahmed Jejuna's affidavit disclose sources of information and those copies of the respective sources are annexed. - (c) The Learned Lady Ag. Judge erred in law and infact when she came to the conclusion that Denis Kwesiga's affidavit must be taken to be evidence for the respondent when the affidavit does not state its status. - (d) The Learned Lady Ag. Judge erred in law and infact when she came to the conclusion that paragraph 12 of Ahmed Tejani's affidavit contained no conjecture and inferences. - (e) That the Learned Lady Ag. Judge erred in law by failing to strike out in whole both affidavits of the respondents after finding that they contained falsehoods.


- (f) The Learned Lady Ag. Judge erred in law and fact by failing to appreciate the applicants' objection in respect of Denis Kwesiga's affidavit containing falsehoods, contradictions and being inconclusive and being argumentative. - (g) The Learned Judge erred in law and fact by ignoring the various contractions, inconsistencies and falsehoods in Ahmed Tejani's affidavits, which Counsel for the applicant raised. - 3) That it will be just and equitable for the applicants to be given a chance to present their case to the Court of Appeal. - **10** 4) The applicants have matters to raise involving substantial questions of law. - 5) There shall be substantial miscarriage of justice if the leave to appeal is not granted.

There is not a lot to say about the background of this application, the little that exist is set hereunder:-

The applicants are the plaintiffs in HCCS No. 638/99 filed on plaintiffs' claim from the defendants jointly and/ or severally for the sum of Shs 22,826,925/= said to be the value of work carried out by the plaintiffs on Plot <sup>1</sup> Entebbe Road, LRV 1133, Folio, also known as Clansman. 16.6.1999 against the respondents as defendants. By the suit, the

House [suit premises]. The plaintiffs also pray for an injunction to be issued against the defendants restraining them from evicting the plaintiffs from the suit premises until full payment for value of work done or compensation.

*<sup>7</sup>* **H3**

The defendants filed a defence on the 2.7.1999 denying the claims of the plaintiffs and counter claiming for arrears of rent and surcharge to the tune of Shs 58,295,935/=.

**1<sup>1</sup> q**

On the same day that the suit was filed, Misc. Application No. 686/99 was also filed for a temporary injunction to issue restraining the defendants in the main suit from evicting the plaintiffs from suit premises until disposal of that suit. The Misc. Application was dismissed on a preliminary point of law on the 30.6.1999. on the same day i.e. 30.6.1999, another Misc. Application No. 746/99 was **IO** filed by the applicants/plaintiffs asking for the same orders as the ones prayed for in the dismissed application. At the hearing of second Misc. Appl., Mr. Serwadda for the applicants raised a number of preliminary objections to the respondents/defendants affidavits in reply. Most of the objections were over-ruled. The applicants felt aggrieved by my ruling and filed the present application.

> At the hearing of this application their Counsel dwelt at length on the areas where <sup>I</sup> am supposed to have erred when <sup>I</sup> made my findings in the preliminary objections and therefore why it is necessary to grant leave to appeal to the court of Appeal to enable that court to give serious judicial consideration to the errors.

> The Learned Counsel also argued grounds justifying the making of the application for leave to this court in the first instance. She ended by submitting that leave should be granted since there are substantive questions of law to be determined.

Mr. Ruyondo for the respondents opposed the application. Relying on the affidavit in reply sworn by Mr. Ahmed Tejani on the 18/10/1999, the learned Counsel argued that there is no merit in the application and that the applicants by the application merely intend to delay the disposal of the substantive application (No. 746/99) thus creating a situation heading to the applicants remaining in possession of the suit property. The learned Counsel further argued that refusing to grant leave to the applicant is not likely to cause miscarriage of justice to the applicant as it will still leave the pending Misc. Application intact

**IO** [No. 746/99]

To substantiate the argument of delaying disposal of the Misc. Appl. 746/99; the Learned Counsel submitted that this application was filed then not fixed for hearing until the respondent made a move to fixed Misc. Appl. 746/99 for hearing, then the applicants fixed a hearing date for this application. The learned Counsel submitted from the bar that if the application is granted then the court should discharge the interim injunction issued by the Court on the 21.7.1999.

The application for leave has outlined a number of errors said to have been committed by court in arriving at decisions on the preliminary objections in Misc. Appl. No. 746/99. The effect of the errors of law precedents arising from divisions of this Court. Such is the decision innocuous falsehood, in an affidavit is fatal to the whole affidavit and would go beyond the ambit of Misc. Appl. 746/99 and have effect on on whether an affidavit, especially one deponed to in an interlocutory application is a pleading or evidence in such application; whether an

other r errors to be relied upon in the appeal, if raised on appeal and successfully argued, may well result in the respondent's affidavits in that application being struck out.

**<sup>I</sup> K**

That result will certainly affect the prosecution and defence of that application, there is no doubt of that.

The applicants prayers for the discharge of an interim injunction granted by this court on the 14/7/99 against the respondents' eviction made from the bar, no evidence was availed to court to support the of the applicants from suit premises, is rejected. The prayer was

**IO** allegation, in which the prayer was based; namely that the appeal is not genuine but is calculated to postpone or delay the final disposal of Misc. Appl. No.746/1999. If such evidence exists, the respondents may wish to use it in a fresh application. After all, the interim Order was issued and the duration thereof paged to the hearing of Misc. AppL 746/99 or until further orders.

In summary, leave to appeal to the court of Appeal against my ruling of the 21.7.1999 is granted to the applicants [the ruling is not dated *c* 22.7.99]

Costs of the application to be costs in the main cause.

(signed)

I

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Ag. Judge.

9/11/99

## 17/11/99:-

Edson Ruyondo for respondent

Kabiito Karamagi on brief for Ruth Mubiru for Applicant.

Respondent in court.

**Ruyondo:-**

We are ready to receive that ruling.

Court:-

$\hat{0}$

Ruling delivered as directed by the judge.

## REGISTRAR HIGH COURT

17<sup>th</sup> November, 1999

रिर्म क्रीज SEPTEMBER PRODUCTS TO THE I Calbely This Rive is a True Gentary Original **STOPPER**


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 746 OF 1999 (ARISING OUT OF HCCS NO. 638 OF 1999)**

| 1. | AND<br>BROTHERS<br>LIMITED<br>PETER<br>] | | |----|------------------------------------------|--------------------| | 2. | INTERIOR<br>CLUE<br>LIMITED | APPLICANTS<br>] | | | | VERSUS | | 1. | ENTERPRISES<br>LIMITED<br>R. T. | | | 2. | ZANCO<br>INTERNATIONAL<br>LIMITED] | | | 3. | AHMED<br>TEJANI | RESPONDENTS<br>I . | | | | |

# **BEFORE THE HONOURABLE LADY JUSTICE AG, A, C. OKELLO ORDER**

This application coming this 21st day of July, 1999, in the presence of Mr. Stephen Serwadda and Mr. Edison Ruyondo **THIS COURT DOTH ORDER THAT:** -

I. The applicants' first, second, third and fourth objections are dismissed with costs to the respondents.

2. The applica *i* fifth objection is upheld in part with costs to the applicants and the rest ofthe objection is dismissed with costs to the respondents.

**THIS** , 1999. GIVEN UNDER MY HAND AND THE SEAL OF THE HONOURABLE COURT DAY OF

**■JES^E/REGISTRAR**

EXTRACTED BY: KALENGE, BWANIKA, KIMULI AND COMPANY ADVOCATES, PLOT 4, PILKINGTON ROAD, COLLINE HOUSE, 1ST FLOOR, P. 0. BOX 8352, KAMPALA.

I

**f**

RM/MKM