THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 699 OF 2011

(ARISING FROM CIVIL SUIT NO 203 OF 2009)

MUGOYA CONSTRUCTION AND ENGINEERING LTD).… APPLICANT/DEFENDANT

VERSUS

CENTRAL ELECTRICALS INTERNATIONAL LIMITED)….. RESPONDENT/PLAINTIFF

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA

RULING

The Applicant filed this application by chamber summons under Order 6 rules 19
and 31 of the CPR, for orders that leave is granted to the applicant to amend its
written statement of defence and costs of the application are provided for. The
application is supported by the affidavit of Ivan Kyateka.

The applicant seeks to amend paragraphs 3, 4, 5 and 6 of the written statement of

defence.

In the affidavit in support of the application, it is deposed that the Applicant was
served with summons to file a defence by way of substituted service and was
therefore pressed for time within which to fully investigate the claim and file a
comprehensive written statement of defence. That the Applicant had since the
filing of the defence, obtained new information that has a bearing on the issues
for resolution before the court. Furthermore, that the respondent will not suffer
any injustice or irreparable harm by the proposed amendment and that the
applicant will suffer irreparable harm if the amendment is not granted.

The Respondent opposed the application and in the affidavit in reply sworn by
Kembabazi Annette, the Respondent deposes that the amendments sought are

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prejudicial to the Respondent’s case and are a total departure from the written
statement of defence on record. Furthermore, that the amendments sought have
the effect of altering the entire written statement of defence which shall
irregularly allow the defendant to put in a new defence outside the time allowed
by law. Furthermore, that the proposed amended written statement of defence
contains deliberate falsehoods and the court ought not to sanction such conduct
by the Applicant. The Respondent also deposed that the proposed amended
written statement of defence is evidence of dilatory conduct by the Applicant
who is buying time to increase the respondent’s loss and that the summons were
served on the Defendant/Applicant by substituted service, and the Applicant
being conversant with the facts instructed his advocate to file a written statement
of defence.

At the hearing the Applicant was represented by Oine Ronald of Messrs

Tumusiime Kabega and Co. Advocates while the Respondent was represented by
Simon Tendo Kabenge of Messrs Simon Tendo Kabenge Advocates. When the
matter came for hearing court directed that the parties put in written
submissions.

I have taken into account the written submissions of both counsels, the pleadings
of both parties and the authorities cited. The Respondents counsel raised some
preliminary matters on the competence of the Applicant’s application.

As far as these preliminary matters are concerned, learned counsel submitted that
the Applicant was guilty of plagiarism of the judgment of her lordship Lady Justice
Irene Mulyagonja Kakooza. I wondered at this submissions and I am at a loss as to
what remedy learned counsel seeks from this court with regard to the alleged
plagiarism. Moreover a judicial precedent may be quoted and it is not indicated
whether the rights of any law reporting agency has been infringed. No remedy is
sought and there is no need for this court to decide any matter on the basis of this
submission.

The second attack to the application is that the affidavit of Ivan Kyateka is full of
falsehoods and blatant lies. The question of whether the affidavit has falsehoods
is inferred from the facts and circumstances of the case. Before I delve into that,
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learned counsel has as a basis of the objection the affidavit of Kembabazi Annette,
a lawyer by profession practising with the Respondent Counsel’s advocates in
opposition to the application. Her averments are contained in paragraphs 2 and 6
of the said affidavit in reply. The basis for the conclusion that the affidavit is full
of falsehoods is not given in this affidavit though the affidavit can be read for
what it is worth. I have critically examined the said affidavit. Counsel Ivan Kyateka
makes his affidavits as a duly authorized agent of the Applicant authorised to
make the affidavits in that capacity. The major ground of concern is the averment
that new information has emerged with a direct bearing on the resolution of all
the issues before this Court. This new information is not specified in the said
affidavit of Ivan Kyateka but can be obtained from the proposed amended written
statement of defence attached as annexure “A” to the affidavit. Before resolution
of this issue it would be necessary to set out the claim of the Plaintiff against the
Defendant and the defence thereof plus the proposed amendment in order to
establish the alleged new information within the context of the suit.

The plaint pleads that the plaintiffs claim against the Defendant is for USD 80,000
and Uganda shillings 46,000,000/= for money due and owing, general damages
for breach of contract, interests and costs. The facts pleaded are that the
Defendant contracted the plaintiff to carry out electrical works at Shoprite
Supermarket Entebbe road, Butyaba Military Training School Masindi, the
Kyabazinga Palace in Iganga District, Uganda National Examination Board Offices
at Kampala and Civil Aviation Offices at Entebbe. The Plaintiff did the electrical
works to the satisfaction of the Defendant. The Defendant did not pay the
plaintiff for the works done. The Plaintiff requested the Defendant to pay but the
Defendants did not oblige with payment despite admitting that the money was
due and owing.

In defence to the above action the Defendant’s written statement of defence

paragraph 3 thereof avers that the suit is brought against a wrong party and
discloses no cause of action. Alternatively the Defendant avers that it has never
contracted the Plaintiff to carry out any electrical works on all the 5 sites
mentioned above. In the further alternative the Defendant avers that if the
Plaintiff was ever contracted, it was paid all the sums due.
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On the 21st of April 2011 when the suit was first mentioned, Counsel for the
Defendant informed Court that he intended to apply for the amendment of the
written statement of defence. The court advised the Defendant to send the
proposed amendment to the Plaintiff’s counsel for possible consent. It is only
after failure to agree on the proposed amendment that a formal application
should be filed. Thereafter and by consent of both counsels the file was sent back
for possible resolution of the dispute through mediation.

In a letter dated 10th of June, 2011 Counsels for the Defendant forwarded the
proposed amended written statement of defence to the Plaintiffs for consent and
file a copy on the court record on the 15 th of June, 2011. I have carefully perused
the intended amendment to the written statement of defence. In paragraph 3
thereof the Defendant proposes an amendment that the suit is bad in law. In the
WSD on record the Defendant averred that the suit had been brought against a
wrong party and discloses no cause of action. In essence the question of whether
the suit was brought against the proper party and the question of whether the
suit was bad in law are essentially the same in substance.

In paragraph 4 of the proposed written statement of defence the proposed

amended defence adds the words the suit is “frivolous and vexatious”. This is an
addition to the averment that the plaint discloses no cause of action against the
defendant. In essence, in addition to the words the suit disclosing “no cause of
action” the defendant merely adds that the suit is “frivolous and vexatious”.
There is not much qualitative or substantial difference made by the addition to
the proposed objection in the WSD for failure to disclose a cause of action. In
both instances the court peruses the pleadings to establish whether the plaint
discloses a cause of action under order 7 rules 11 or a reasonable cause of action
or the suit may be shown by the pleadings to be frivolous and vexatious under
order 6 rule 30 of the Civil Procedure Rules.

Additionally the proposed amended written statement of defence in paragraph 6

thereof contains facts giving rise to the cause of action but the Defendant
materially states that it is not indebted to the Plaintiff as indicated. Paragraphs 6

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(a) to (e) deal specifically with each of the five works that the Plaintiff is alleged to
have executed on behalf of the Defendant.

The proposed amendment is that the Defendant is not indebted to the Plaintiff in
respect to the electrical works on Shoprite Supermarket Entebbe road as alleged.
Even this does not materially alter the previous averments in the written
statement of defence. As far as the palace works is concerned, the Defendant
introduces a new fact that Uganda shillings 41,629,250/= was paid to the Plaintiff
by Stanbic bank cheque number 7015 dated 18 th of April 2006 as an advance of
10%, but the Plaintiff did not execute any works or supply any materials on the
site. Thirdly the Defendant introduces yet another fact that the Plaintiff agreed
with the Defendant for the electrical material supplied to the Plaintiff for the
Butyaba Military Training School at Masindi to be offset against the advance
payments relating to the palace project. Fourthly the Defendant avers that it paid
the plaintiff retention money of Uganda shillings 5,625,000/= by a Stanbic bank
cheque number 6477 dated 23rd of June 2005 for electrical works at Uganda
National Examination Board offices Kampala. Last but not least the Defendant
avers that it paid the Plaintiff retention money of Uganda shillings 12,394,187/= in
a Stanbic bank cheque number 6812 dated 9th of January 2008 for Electric Works
on the Civil Aviation Authority Offices Entebbe.

The material question is whether this information could be new information to

the Defendant given the fact that as the allegation shows, it is the Defendant who
agreed with the plaintiff and secondly it is the Defendant who is said to have paid
the monies averred in the proposed amendment. Thirdly the payments were
made several years before the suit was filed. All the information averred in the
proposed amendment cannot be new information to the Defendant that has just
emerged as averred in the affidavit of Ivan Kyateka. Paragraphs 3 and 4 of the
affidavit of Ivan Kyateka are set out for emphasis:

“3. That the applicant/defendant was served with a copy of the summons to
file a defence by substituted service and as such was pressed for time
within which to fully investigate the claim and file a comprehensive written
statement of defence

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4. That since the filing of the written statement of defence, new information
has emerged that has a direct bearing on the resolution of all the issues
before this honourable court.”

Counsel has not satisfied the Court where this new information emerged from as
no source of information is disclosed. Because it is impossible for the Defendant
not to know what it did, the inference from the affidavit of Ivan Kyateka is that
firstly, he did not have full instructions of the Defendant in terms of the facts of
the suit. The original written statement of defence was filed on the 9 th of April,
2010. Application to amend the written statement of defence was filed about 1
year 8 months later on the 2nd of December, 2011. The affidavit of Ivan Kyateka is
specific in paragraph 4 that the new information emerged since the filing of the
written statement of defence. Secondly, can it be concluded that he was a duly
authorized agent of the applicant? Thirdly, as he has rightly averred in paragraph
1 of his affidavits in support of the chamber summons, he is an advocate
practicing with a Messrs Tumusiime, Kabega and Company Advocates. This is the
crux of the problem. Is he an advocate duly appointed as an agent as averred? An
Advocate is forbidden from swearing an affidavit in contentious matters and
conducting the suit as well. However is the affidavit made in the capacity of
Advocate?

Learned Counsel Ivan Kyateka averred that he is an authorised agent of the

applicant. No authority of the principal was attached to the affidavit in support.
Order 3 of the Civil Procedure Rules provides for recognized agents. Rule 1 of
order 3 deals with appearances and provides that any appearance or any act in
any court required or authorized by law to be made or done by the party in such
Court except where otherwise expressly provided by any law for the time being in
force, shall be made or done by the party in person or by his or her recognised
agent or by an advocate duly appointed to act on his or her behalf. Learned
counsel does not show in the affidavit that he is a duly appointed advocate to act
on behalf of the client.

Rule 2 deals with recognized agents of parties by whom such appearances,

applications and acts may be made or done. The kinds of persons classified and

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referred to as recognized agents are persons holding powers of attorney
authorising them to make such appearances, applications and do all such acts on
behalf of the parties. Secondly “persons carrying on trade or business for and in
the names of parties not resident within the local limits of the jurisdiction of the
court within which limits the appearance, application or act is made or done, in
matters connected with such trade or business only, when no other agent is
expressly authorised to make and do such appearances, applications and acts.”

It is quite clear that any recognised agent is a party who holds powers of attorney.
In this particular case Ivan Kyateka does not attach any authority to do any act on
behalf of the party. It may be argued that he could give those facts as an advocate
duly appointed under rule 1 of order 3. This argument is negated by the fact that
he avers that he is both an advocate and a duly authorized agent. Paragraph 1
explicitly provides for the capacity in which the affidavit is made and I quote:

“That I am an adult male Ugandan of sound mind, an advocate in the

abovementioned law firm, the duly authorized agent of the applicant
herein, competent and authorised to affirm this affidavit in that capacity.”

Paragraph 1 of the affidavit of Ivan Kyateka merely describes him as an advocate

practising with the firm described therein. The capacity in which the affidavit is
made is expressly stated thus: "the duly authorised agents of the applicant here
in, competent and authorised to affirm this affidavit in that capacity." The
affidavit is therefore made in the capacity of a duly authorized agent of the
applicant and not in the capacity of an advocate. For emphasis there is a world of
difference between a duly authorized agent and a duly appointed advocate.

Even if Ivan Kyateka was an advocate of the Applicant, does an advocate need
authority to swear an affidavit in matters of this client and especially in
contentious matters? This question is answered by an examination of order 3 rule
1 of the Civil Procedure Rules. This rule provides that anything that may be done
by a party may be done by the party in person or by his or her recognize agent, or
by an advocate duly appointed to act on his or her behalf. The point to be made
is that order 19 rule 3 (1) of the Civil Procedure Rules provides that

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 “Affidavits shall be confined to such facts as the deponent is able of his or
her knowledge to prove, except on interlocutory applications, on which
statements of his or her belief may be admitted, provided that the grounds
thereof are stated.”

Obviously in this case and the deponent is not able of his own knowledge to
prove that new facts have emerged or what those facts may be. It is clear from
the affidavit that any new facts may only have been obtained from information. If
learned counsel had this knowledge, he could not aver that new information had
emerged with a bearing on the case. The capacity in which the affidavit is made
becomes crucial. In case of beliefs, the grounds of the beliefs are supposed to be
stated.

Notwithstanding the averment of Ivan Kyateka in paragraph one of his affidavit

that he made the affidavit as an authorized agent, I have tried to establish what a
duly appointed advocate is or a duly appointed advocate may be in terms of order
3 rule 1 of the Civil Procedure Rules. Rule 1 uses the words “duly appointed to
act”.

The words "duly appointed to act" are clearly distinguishable from an advocate
who has been duly instructed. An appointment to act on behalf of the client must
be in writing. This requirement would be consistent with order 7 rules 4 of the
Civil Procedure Rules. This rule requires evidence that a person pleading in a
representative capacity should demonstrate that the necessary steps have been
taken to enable the representative to institute a suit in a representative
character. This also applies to making an affidavit in the capacity of a party to the
action. In this particular case, the applicant is a limited liability company and a
written authority for learned counsel Ivan Kyateka to make an affidavit in the
capacity of the party and not that of an advocate should be attached to the
affidavit in support. Moreover, any official of the company who could have given
written instructions is not named. Authority to give instructions in such a matter
of a company is dictated by the memorandum and articles of Association of the
company. It may be made by a director if enabled by the articles or by resolution
and all this is determined by the articles of Association.

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Having a written authority would shield the advocate from committing an offence
under the Advocates Act namely The Advocates (Professional Conduct)
Regulations Statutory Instrument 267 – 2, regulation 15 thereof which provides
that:

"An advocate shall not include in any affidavit any matter which he or she
knows or has reason to believe is false"

It is impossible for the applicant company to aver that what it did to either pay
the Plaintiff or agree with the Plaintiff several years ago were emergent facts that
emerged after the filing of the written statement of defence. Even if this
information was made by the client in an affidavit, it is impossibility not to know
what one did. Learned counsel as an advocate would have been under a duty not
to include this information in the affidavit of his client because it is obviously false
in the sense that it cannot be new and emerging information which information
arose after the filing of the written statement of defence as averred in the
affidavit. In the very least, if it is an official of the company providing this
information, that official ought to be named in the affidavit.

In the premises, the main basis of the application for amendment of the written
statement of defence is paragraph 4 of the affidavit of Ivan Kyateka which
provides that:

"Since the filing of the written statement of defence, new information has
emerged that has a direct bearing in the resolution of all the issues before
this honourable court".

Last but not least the applicant would not be prejudiced in arguing that the suit is
frivolous and vexatious or that the plaint does not disclose a cause of action in
that this can be argued without the amendment under order 7 rules 11 or order 6
rules 30 of the Civil Procedure Rules. This is because only the pleadings may be
examined and no evidenced is required. Furthermore, the defendant may still be
able to argue its defence that it is not indebted to the plaintiff on the basis of the
written statement of defence as currently framed. In that sense, the defendant
would not be greatly prejudiced if this amendment is not allowed.

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In the premises, the Applicant’s application for amendment of the written
statement of defence is supported by a defective affidavit that cannot support the
chamber summons. The application accordingly fails and is dismissed with costs.

Ruling delivered at Kampala this 20th day of April 2012.

Christopher Madrama

Judge

Judgment delivered in the presence of:

Benson Tusasirwe holding brief for Tendo Kabenge for Respondent/Plaintiff,

Ronald Oine for the Applicant

Ojambo Mokoha Court Clerk

Hon. Justice Christopher Madrama

20th of April 2012.

Proceeding:

Oine Richard seeks leave to appeal.

Court:

Leave to Appeal is granted.

Hon. Justice Christopher Madrama

20th of April 2012.

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