Ssebunya v Kenfrieght Uganda Limited and Another (Civil Suit No. 988 of 1998) [1999] UGHC 63 (31 March 1999)

Full Case Text

tor Regendent.

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 988 OF 1998

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PLAINTIFF

HENRY SSEBUNYA

versus -

TENFREIGHT (U) LTD & ANOTHER $\scriptstyle \texttt{::::::::}:$ DEFENDANT BEFORE:- HON. THE PRINCIPAL JUDGE - MR. JUSTICE J. H. NTABGOBA

## R U L I N G

This was an application on motion brought under Order 9 rules 9 and 24; Order 48 rules 1 & 3 of the Civil Procedure Rules and S.101 of the Civil Procedure Act. The application sought an order of this Court to set aside the "interlocutory judgment" entered in Civil Suit No.988 of 1998 and to give to the applicant/defendant leave to defend the suit out of time.

The grounds upon which the application was based were $that :-$

- (a) the defendants/applicants received summons and forwarded them to their lawyers in time whose clerk inadvertently failed to file a defence in time. - (b) the applicant has a good defence and a counterclaim to the whole claim of the respondent/ plaintiff.

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The application was supported by the affidavit of Lillian Khalayi who is the advocate conducting the application. Her arfidavit does not state, in the jurat, the place where it was deponed to contrary to the provisions of Section 8 of the Oaths Act, Cap.52 of the Laws of Uganda. That section provides that:-

"Every Commissioner for Oaths or notary public before whom any Oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the Oath or affidavit is taken or made".

Mr. Serwadda for the plaintiff/respondent attacked the affidavit in a preliminary objection in which, relying on decided authorities, submitted that the affidavit is defective for non-compliance with the provision of $S.8$ of the Oaths Act aforementioned. Counsel prayed that, on that score, the affidavit ought to be struck out and therefore the application, devoid of supporting affidavit, should not stand.

There was another preliminary point of law raised by Mr. Serwada. It was that an advocate should not act both CASE as Counsel and as a witness in the same $\angle$ except in a formal or non-contentious matter.

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Mr. Serwada argued, correctly irr rny view, that Khalayirs affidavit deponed to contentious matters, in that paragraph 2 of the affidavit mentions the wrong date of service of summons to enter appearance. In that paragraph, LilIian Khalayi deponed. that her client was served on 28th september 1gga. rn Ruth Mubirurs affirlavit in rep1y, she depones that paragraph 2 of Lillian Khalayits affidavit is not true in as far as summons were served on and. acknowledged by the applicant/defendant on 29th day of September 1998.

I upheld the two preliminary points raised by learned Counsel for the plaintiff,/respondent, dj-smissed the apprication and promi-sed to give. my reasons for the di.smissar on notice. The forrowi-ng are the reasofrg;-

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'ti J 1- There is ample authority that non-compriance with the provisions of S. B of the Oaths Act, Cap.52 of the laws of Uganda vitiates the affid.avit. rn this regard r refer to the cases of Teddy Nanazzi -vs- Anne Sibo(1986)HCB.)g and HaJi Yusufu Luyombo -vs- Masaba co-operative union, . HCCS. No.4B/ of 1994, both of whi.ch are an authority that where the affidavit does not comply with the requirements set out in s. B of the oaths Act, Cap.l2, it is defective, and renders the apprication i-n support of which the affidavit purporbs to be dismissible.

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Haji Yusufu Luyombo -vs- Masaba Co-operative Union is also an authority for the decision that where a Statute lays down a procedure to be followed such as in Section 8 of the Oaths Act, and ensures such form as it does in the "Form of Attestation" appearing at the bottom of page 842 of the 1st Schedule to Act 52, the Oaths Act, such form must be strictly adhered to. Non-adherence thereto cannot be accepted by Court.

2. It is also trite law upon authorities that it is $2$ . a clear rule of practice reinforced by a rule of Professional Conduct that an advocate should not act both as Counsel and as a witness, at the same time, in the same case except in a formal and noncontentious matter. (See Babumba & 2 others -vs-Bunju $(1988-1990)$ HCB.119).

Either of the two objections raised by Counsel for the respondent was sufficient for the striking out of the application.

There was a third ground of objection raised by Mr. Serwada. This was an attack on the notice of motion in this application. The same was dated and signed by Counsel for the applicant.

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$...5$

However, it was neither dated nor signed by the Registrar of this Court. Order 5 rule 1(3) of our Civil Procedure Rulesenjoins that:-

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"Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the Seal of the Court".

The Registrar is such cofficer who always signs, under the Court Seal, summons issued by this Court. It is mandatory that he always signs and seals the This point was long made clear in the case summons. of East Africa Plans Ltd -vs- Roger Allan Bickford Smith, HCCS. No.426 of 1969 in which B. K. Kiwanuka, Ag. C. J. had the following to say:-

"As regards the signature of the Counsel of the applicant on the Chamber Summons, this was an incorrect procedure. Order 5 rule 1(3) of the Civil Procedure Rules provides as follows:-

$\mathcal{C}_{\text{Every}}$ such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the Seal of the Court?

"A summons was a command from the Court and had, therefore, always to be signed by the Court itself or by such officer to whom the Court delegated this power. It followed, therefore, that unless Counsel for the applicant had this power delegated to him, he could not sign a summons and give it the necessary force of law.

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In this particular case there was no proper summons issued to the parties, and the matter was improperly brought before the Court".

On the third ground also of objection the application my is the instant case was improperly before the Court. Hence its dismissal.

Litigating parties ought to always strictly observe, in particular, the provisions of Order 5 Rule 1(3) of the Civil Procedure Rules.

PRINCIPAL JUDGE $31.3.99$

$31.3.99$

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Servatda Stephen fr Rag. Lillian Kalayj des Luming démération chautiens as dué de by the Hon the P5 Sund Lund In