Security Group (U) Limited & Another v Kasolo (Miscellaneous Application 2565 of 2023) [2024] UGCommC 276 (19 February 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DMSION) MISCELLANEOUS APPLICATION NO.2565 OF 2023 (ARISING FROM CIVIL APPEAL NO 006 OF 2023) (ARISING FROM MISCELLANEOUS APPEAL NO 461 OF 2OI9) (ARISING FROM CIVIL SUIT NO 6s3 OF 2019) I. SECURITY GROUP (U) LIMITED 2. SECURITY GROUP CASH IN TRANSIT LTD::::::::::::::::: APPLICANTS VERSUS

## ELLIS R. KASOLO:::t:::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI

#### RULING

This application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act cap 71, Section 33 of the Judicature Act cap 13, seeking that the ruting and orders of this court granted to the Respondent in civil Appeal No.6 of 2023to proceed exparte be set aside, that the court stays judgment in Civil Appeal No.6 of 2023 until determination of this application, and costs of this application be provided for.

The application is supported by the affidavit of Mr. Musumba Dacha Ahenda, the Applicant's Country Manager, and by the supplementary affidavit of Mr. Esau Isingoma, an advocate of the High Court and Counsel for the Applicants whereas

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the affidavit in reply was swom by Mr. Kasolo Ellis R., an advocate of the Cour.ts of Judicature.

The Applicants filed this application to set aside the order of this Court granted to the Respondent/Applicant in Civil Appeal No.6 of 2023 to proceed exparte. During the hearing of the said Application, the Respondent raised two preliminary objections to wit;

1. The suit is premature, and an abuse of the court process as it is not founded in the civil procedure laws of Uganda.

2. This Application is a nonstarter in as far as it is supported by an incurably defective affidavit of Dacha Ahenda and the supplementary affidavit of Esau Isingoma of K& K Advocates both purporting to act for and on behalf of the Applicant's companies without their authorization.

#### REPRESENTATION

The Applicants were represented by M/s K&K Advocates whereas the Respondent was represented by IWs Kasolo & Khiddu Advocates.

#### SUBMISSIONS

#### Preliminary Objection I

Counsel for the Respondent submitted that on the 25th day of October,2023,this Court pronounced itself during the hearing of Civil Appeal No. 6 of 2023, that it was functus officio and went ahead to expunge the submissions of Esau Isingoma who had been allowed to address Court when the matter had been allowed to proceed exparte.

Counsel for the Respondent further submitted that the Court had adjoumed the matter for the sole purpose of delivering the ruling. While relying on the case of

Exparte Hookey; In the Matter of the fusca Coal and Iron Company 1862 4 DE G. F.&J. 456 from pages 459 to 460 counsel submitted that the moment the Court pronounced itself to adjourn the matter to deliver a ruling, that was an order of Court and the Court was therefore functus officio save to deliver the ruling.

Counsel for the Respondent further relied on the case of A. K. P. M Lutaaya v. Attomey General, Supreme Court Civil Reference No.l/2007, where the Suprcme Court observed that the leamed Judge was not functus officio as he did not consider the merits of the Application to determine either to allow or to deny it and only determined whether, in the absence of an affidavit, an Application before him was competent.

Counsel for the Respondent averred that in this case the Appeal was heard to its logical conclusion and what is remaining is the delivery of Judgment and it is for this reason that this Court is functus officio because the order was executed. Counsel averred that there is nothing to be set aside because no Judgment has been delivered by this Court

Counsel argued that this application to set aside an order of exparte proceedings is fundamentally misconceived and the same should be dismissed because the Supreme Court has made a pronouncement that only court decrees can be set aside by this court. counsel contended that Section 98 ofthe CPA and Section 33 ofthe Judicature Act do not mention anything about prohibiting a judge from delivering its judgment. Counsel relied on the case of Capt. Philip Ongom v Catherine Nyero Owota SCCA N0. l4 of 2001 to expound on his point that an improper procedure with no law was used by the Applicants to file this apptication, wherein he suggested that the proper procedure would have been for the Applicants to wait for this court to deliver its judgment and set it aside under Order 9 Rule 27 because it can only be done after a hearing in respect ofwhich the defendant has been given notice. He added that when

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the Applicants/ Respondents were served and did not appear, the Court granted the Respondent/Appellant leave to proceed exparte and the judgment which will determine the rights ofthe parties has not been delivered. He therefore prayed, that this application is premature, misconceived an abuse of the court process, and without a judgment, this matter cannot stand and the same should be dismissed with costs.

In reply, Counsel for the Applicants submitted that the case of Ex parte Hookey (supra) relied on by Counsel for Respondent was misapplied as it is a case about time bars and the case was stating that when a court makes an order and the law gives you time within which to appeal against that order, the time starts running from the date when the court pronounced its order. Counsel argued that the said case was about time bars and did not apply to the set offacts before this court.

Counsel further submitted on the authority of A. K. P. M Lutaaya v AG (Supra) submitted by counsel for the Applicant and averred that counsel for the Applicant intentionally left out some parts and referred the court to pages 12 and 13 of the said decision and submitted that functus officio means exhaustion of judicial powers. Counsel averred that they are applying to set aside the order in which the Court ordered the Applicants to proceed exparte and the court is not functus officio in determining that matter.

#### Preliminary Objection 2

Counsel for the Respondent submitted that this application is a non- starter in as far as it is supported by an incurably defective affidavit of Mr. Musumba Dacha Ahenda who purports to act on behalf of the l't and 2'd Applicants as a country manager. Counsel argued that Mr. Dacha Ahenda does not possess any single contract with the l't and 2'd Applicants and the Respondent is the only shareholder ofthe I't and 2nd Applicants. He relied on paragraphs 20 and2l of the Respondent's affidavit in

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reply to state that the virtual meeting that was scheduled for the 28th May 202l,to renew the appointment of the said deponent as per Item No.6 did not take place, thus he is holding out and masquerading as a country manager. Counsel contended that the deponent had no contract to represent the companies and there is no way he could have instructed counsel purporting to represent the l't and 2nd Applicants. Counsel while relying on the case of Kabale Housing Estate Tenants Association Ltd v Kabale Municipal Local Govemment Council (Supreme Court Civil Application No. 15/2013) reported in 2013 I HCB at page 30, and the case of Macfoy v United Africa Ltd (1961 3 ALLER 1169) at page 5 of 6, emphasized that the deponent purporting to be a country manager, was supposed to instruct K&K Advocates to represent the companies as their clients based on a company resolution, and if the advocates proceed without a resolution, all his or her actions are a nullity and as such incurably bad.

Counsel further submitted that this court should dismiss this application because advocates or applications or suits brought without instructions or affidavits swom by somebody without capacity are incurably bad according to the case of M. H. K Engineering Services Uganda Ltd v Macdowell Ltd (Misc. Application No. 825 of 2018) arising from Civil Suit No. 72312018. Counsel also argued that the second supplementary affidavit in support swom by Mr. Esau Isingoma cannot suffice because he did not swear any affidavit in support. He added that it also suffices to note that the Applicants did not file an affidavit in rejoinder, thus there was no need to challenge the affidavit in reply. Counsel prayed that the illegality brought to the attention of this court supersedes this application and the same should be dismissed.

In reply, Counsel for the Applicants submitted that whereas Counsel for the Respondent referred to only the interim order in Misc. Application No. 156 of 2021 and did not bring to the attention of the Court the main judgment vide Civil Appeal

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No. 212 of 2020, Ellis R. Kasolo vs Security Group (U) Ltd & Security Group Cash in Transit Ltd, to establish his point that the initial virtual meeting was restrained from happening by the Court of Appeal was misleading. Counsel argued that the judgment in the Court of Appeal emphasized that Mr. George Musumba Ahenda's ratification as country manager of the Applicants'/Respondents' companies was an abandoned issue in Civil Suit No. 777 of2017, and as such the court found that the deponent was certainly a principal officer in the Applicants/Respondents companies and legally permitted to sign pleadings on their behalf.

Counsel lor the Applicants also added the Respondent raised the same preliminary objection in the case of Jules Joseph Delahaije Genruda & Ors v Kasolo Robins Ellis HCMA No. 122 I of 2017 , where this honorable court found that once a person is appointed a country manager, he assumes powers and authority to act for and on behalfofthe company. As such he has the capacity to represent such a company and depose to matters within his knowledge. He submitted that in regards to the supplementary affidavit, it is not about the type of an affidavit, it is about the gist and the substance ofthe affidavit. Counsel for the Applicants also argued that the authorities under which this application has been brought give this Court inherent powers to set aside its orders.

In rejoinder, Counsel for the Respondent submitted that by the time the suits and appeals were heard in the Chief Magistrate Court and the Court of Appeal, Mr. Ahenda was still the country manager of the Applicants companies, but as of 2021 and at the time of filing this application, he had no existing contract.

#### RULING

I have read the pleadings and considered the submissions by both Counsel for the parties on the preliminary objections and I find as hereunder.

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### Preliminary Objection l: The suit is premature, and an abuse of the court process as it is not founded in the civit procedure laws of Uganda

The contention of the Respondent among others is that this Application is not founded on any civil procedure laws of Uganda. It is not exactly true that the Application is not founded on any law, considering that no provision in the Civil Procedure Rules provides for setting aside an order of the court granting the other party leave to proceed exparte, before an exparte judgment or decree is delivered. The Applicants invoked the inherent powers ofthis court under Section 98 ofthe Civil Procedure Act (CPA) and Section 33 of the Judicature Act which has been reproduced below:

#### Section 98 of the CPA, provides that:

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of the court."

#### Section 33 of the Judicature Act Cap 13, provides that:

"The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinl<s just, all such remedies as any of the parties to a cause or matter is entitle to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy befween the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. "

Sections 98 ofthe CPA and 33 ofthe Judicature Act grant the Court inherent powers to grant/make such orders as they deem fit but such discretion must be exercised judiciously and made to meet the ends ofjustice, prevent any abuse of the Court

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process, completely determine the controversies between parties, and to prevent any multiplicity of suits.

In the instant case, the Court already pronounced itself on granting leave for the Respondent to proceed exparte which is a final order and is therefore functus officio in reversing its same order. This Court cannot therefore reopen a matter that it had concluded to consider the matters that the Applicant has raised. The said Application is a clear abuse of the court process and would also be encouraging a multiplicity of suits.

According to Black's Law Dictionary 9th edition page 743, functus officio is defined AS

(a) Having performed his or her ofice;

(b) An officer or fficial body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished".

During the hearing of Civil Appeal, No. 6 of 2023, the Court fully performed its duty and granted leave for the Respondents to proceed exparte. The Applicants were duly served with hearing notices to attend Court but tumed up late after the Respondent's prayers to proceed exparte had been granted and they had therefore proceeded exparte. Court expunged the submissions of counsel for the Applicants from the record who had been allowed to proceed by virtue of Court being functus officio.

It should be noted that once a Court has pronounced a final order, it has no authority to correct, alter, or supplement the order as the Court's jurisdiction in that case has been fully exercised and its authority over that particular matter ceases. It is only in exceptional cases where a Court can interfere with its orders and this instant case does not fall within those exceptions.

I therefore find that the Court had fully performed/accomplished its duties, given a final order when it granted leave for the Respondent to proceed exparte and therefore this Court has no further authority to reverse the leave it had granted.

Secondly, Civil Appeal No. 6 of 2023 is pending Judgment before this Court, and as such no decree has been passed in regards to it and there is nothing to be set aside which is a clear indication that the said application is premature.

I therefore find that the said application is irregular and allowing the same would constitute abuse of the court process. The Applicant's remedy in the instance would be an Application for setting aside the exparte Judgement which can only arise after the passing of the said Judgement and issuing a decree.

The first preliminary objection is therefore upheld.

Having upheld the first preliminary objection which in essence disposes off this entire Application, there is no need to address the second preliminary objection.

Costs of the Application are awarded to the Respondent.

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HON. LADY JUSTICE ANNA B. MUGENYI DATED a 1 2n