THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO.1056 of 2014
(ARISING OUT OF MISCELLANEOUS APPLICATION NO. 735/2014)
ARISING FROM CIVIL SUIT NO. 560 OF 2014)
MK FINANCIERS LIMITED …………….……APPLICANT/PLAINTIFF
VERSUS
N. SHAH & CO. LTD. …………..…… RESPONDENT/DEFENDANT
BEFORE: HON. LADY JUSTICE FLAVIA SENOGA ANGLIN
RULING
This application was made under 0.46 rr 1, 2 and 8 C.P.R and SS. 82 and
98 C.P.A.
The Applicant seeks orders of this court reviewing the order made in its ruling on preliminary objection raised in Miscellaneous Application
735/2014, and to enter judgment against the Respondent /Defendant in the terms contained in the plaint.
The Applicant also seeks an order precluding the Respondent / Defendant from filing a written statement of defence, and if filed, the same to be struck out as incompetent.
Costs of the application were also applied for.
The application was supported by the affidavit of Male H. Mabririzi K.
Kiwanuka, the Applicant’s Managing Director, which was relied upon at the hearing.
An affidavit in reply deponed by Hetal Parikh was filed for the Respondent
Company.
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And a supplementary affidavit was deponed by the Managing Director of the
Applicant’s Company and filed on 05.12.14.
The application was heard on 10.12.14, when Applicant went through the grounds of the application. It was contended that court struck out the application for leave to defend but declined to enter judgment which was an error apparent on the fact of the record and therefore qualified for review.
The other error is said to be the failure of court to award costs after striking out the application.
Further that extension of time to file application for leave without a formal application was a peculiar term.
That all those errors are manifest and ought to be reviewed.
Relying on the case of Independent Medico Legal Unit vs. Attorney
General of the Republic of Kenya Appl. No. 02/2012 (Arising from
Appeal No. 01/2011), the Applicant stated what ought to be satisfied for court to review a matter.
The errors in the present case are errors of law the Applicant argued relying on the case of Edison Kanyabwera vs. Pastori Tumwebaze C.A
06/2004.
And that under S.27 (2) C.P.A, costs follow the event unless for good reason court orders otherwise. And that since application was struck out for being ineffective; costs ought to have been awarded as was done in court’s earlier decision of Ssali vs. Rwamwamba Miscellaneous
Application 514/2014.
Further that failure to enter judgment after striking out the affidavit was contrary to 0.36 r 5 C.P.R., which entitles a plaintiff to judgment if application for leave to file defence is not made within ten days.
Allowing Respondent to file another application was contrary to the case of
Goodman Agencies vs. Attorney General and Another, Constitution
Petition 03/2008 and it was unconstitutional to deprive the Applicant of
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judgment, when the Respondent could have applied to set aside the judgment. The Applicant wondered why court gave different orders in application No. 735/ 2014.
It was also submitted that for court to hold that non- commissioning of affidavit before Commissioner of Oaths was an error of Counsel, the consequences of which should not be borne by a party, was a substantive irregularity; as consequences for failure to sign affidavit before
Commissioner are laid out in SS. 100 and 101 of the Criminal Procedure Act.
That criminal action ought to have been taken against the deponent.
In Kakooza John Baptist vs. Electoral Commission and Another
Electoral Petition No. 11/2007, the Supreme Court struck out such affidavit.
And that to allow a criminal suspect to file a new affidavit after un covering an illegality amounts to condoning illegalities by courts of law – contrary to the court decisions in such cases as Active Automobile Spares vs.
Crane Bank and Another C.A. 21/2001 and Bhatia vs. Crane Bank
and Another C.A. 75/2006. That extending time without a proper application before court was not acceptable as Counsel for Respondent had no locus standi. In law he was deemed to have accepted the contents of the summary plaint – See case of Lt. Col. Kaye vs. Attorney General
Constitutional Application 25 / 2012 was relied upon in support and that of Akankwasa vs. Registrar of Titles Miscellaneous Cause
33/2008.
Respondent though present in court could not participate in proceedings –
S.57 Evidence Act.
0.36 C.P.R was argued has no provision for extension of 10 days – case of
Muhammad Kasasa vs. Silas Kiyonga Bwogi C.A. 42/2008 – where court held that
It also was the contention of the Applicant that court has only powers to enlarge time which has not expired under 0.51 r 6 C.P.R and the in case of an application to extension that is not made formally, costs must be
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awarded. That therefore the oral application made by the Respondent was void. – Case of Dr. Ahmed Kisuule vs. Greenland Bank in Liquidation
S.C CA. 07/2010 was relied upon.
It was then prayed that court should review its orders that were complained of and enter judgment under S. 82 C.P.A. And that no prejudice will be occasioned to the Respondent who had recourse to set aside judgment and that costs of this application and those of the application struck out should be awarded; and the new application struck out or alternatively costs be awarded for the application that was struck in court.
In response, Counsel for the Respondent stated that the application did not meet the requirements for review. It was filed in haste before the ruling of this court was read.
That when the application was struck out, court gave reasons for not entering judgment. And the principle is that
No injustice was occasioned to the Applicant for extension of time under
S.98 and 33 Judicature Act, as the Applicant would be heard.
That there was no error apparent on the face of the record and therefore review is not warranted and if Applicant was aggrieved, he ought to have appealed to another court as this court cannot sit in appeal of its own decisions.
Further that 0.51 r 6 C.P.R provides for time to be extended even where it is fixed, and court has power to extend time where it has expired.
And that costs are discretionary. And emphasized that according to case of
Independent Medico Legal Unit (Supra) an erroneous decision is not a ground for review. And though Counsel is arguing for costs, review was not meant to provide a back door for re argument of a case - Referred to
Combined Services Ltd vs. Attorney General Miscellaneous
Application 200/09 and Joyce Kusula Kweguya vs. Ida Somain
Miscellaneous Application 40/07.
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It was then prayed that application be dismissed with costs.
The Applicant reiterated earlier submissions and prayers, adding that the application was not filed hurriedly as alleged by the Respondent, because it was filed after the ruling had been delivered.
And that if Counsel for the Respondent concedes that it was his error for the Respondent not to appear before the Commissioner of Oaths, then notice should be issued to him to show cause why he should not personally pay the costs.
And that court is not sitting in appeal but would be exercising its powers under S.82 C.P.A.
After carefully consideration of the elaborate submissions of Counsel, I find that this is not a proper case for review. The Supreme Court has decided that, in order for an error to be a ground for review, it must be apparent on face of the record i.e. an evident error which does not require any extraneous matter to show its correctness. It must be an error so manifest and clear that no court would permit such an error to remain on record. It may be an error of fact or law. – See Edison Kanyabwera vs. Pastori
Tumwebaze S.C.S.A 6/2004.
In the present application, I find that there was no error apparent on the face of the record as Counsel for the Applicant would wish court to believe.
The decision complained of by the Applicant was made after due consideration and reasons were given for court deciding as it did.
If the Applicant was not satisfied with court’s decision, he ought to have appealed instead of applying for review. Since it has been established that an erroneous view of the evidence or of law and an erroneous conclusion of the law is not a ground for review, though it may be a good ground of appeal
Courts have clearly stated.
The proper way to correct a judge’s alleged misapprehension of the procedure or substantive law or alleged erroneous exercise of discretion is to appeal the decision, unless the error be apparent on the face of the
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record and therefore requires no elaborate argument to expose”. I am
persuaded by the decision that was made in the case of Eastern and
Southern Africa Development Bank vs. African Green Fields Ltd
and Others [2002] 2EA 377 where the case of National Bank of
Kenya vs. Ndugu Njau [1996] LIR 469 (CAK) was cited.
The elaborate arguments made by Counsel for the Applicant in the present case in my view amount to requiring this court to sit in appeal of its own decision.
The refusal to give costs that appear to have aggrieved Counsel for the
Applicant is no cause for review as the law clearly provides that
There was good cause for court not to grant costs.
And court directed that costs would abide outcome of the main application.
The Applicant will get an opportunity to be heard in the application for leave to defend and to strike it out without a hearing will be against the principle that
And further
- Supreme Court.
Granting the Respondent an opportunity to be heard in the main application for reasons clearly stated and directing that costs will abide the outcome of the application cannot be said to be an error on the face of the record warranting review.
The application is accordingly dismissed for all those reasons. The application for leave to defend to be heard and should be fixed for hearing.
A court cannot sit on appeal in its own decision.
Each party should bear its own costs.
FLAVIA SENOGA ANGLIN
JUDGE
22.11.14
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