Commercial division) misc. Application no. 739 Of 2011

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 739 OF 2011

(ARISISNG FROM MISC. APPLICATION NO. 170 OF 2011)

(ARISISNG FROM HCCS NO. 471 OF 2009 AS CONSOLIDATED WITH HCCS NO. 337 OF 2009)
DOROTHY ADEBANJO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VEVRSUS

SHUMUK SPRINGS DEVELOPMENT LIMITED::::::::::::::::::::::::::::RESPONDENT

BEFORE : HON. LADY JUSTICE HELLEN OBURA
RULING
This application was brought under Order 46 rules 1, 2 & 8 of the Civil Procedure Rules (CPR), sections 82 & 98 of the Civil Procedure Act and section 33 of the Judicature Act. The applicant is seeking for orders that:-
(a) The Order granting Misc. Application No. 170 of 2011 on the 6^th June 2011 by this honourable court be reviewed;

b) HCCS No. 337 of 2009, in as far as it was dismissed against the respondent, be reinstated;

c) Costs of this application be provided for.

This application is supported by an affidavit sworn by Mr. Noah Wesige an advocate practising in the firm of M/S Masembe, Makubuya, Adriko, Karugaba & Ssekatawa Advocates (MMAKS Advocates). The main ground of this application is that this court by granting Misc. Application No. 170 of 2011 on the ground that failure to file an affidavit in reply deprived the applicant’s (respondent in that application) counsel of locus to be heard and that it amounted to an admission of the points of law raised in the application was an error of law on the face of the record.

An affidavit in reply and opposition to this application was sworn by Shukla Mukesh, the Chief Executive Officer of the respondent company.
The brief background of this application is that the respondent brought Misc. Application No. 170 of 2011 seeking for orders that HCCS No. 337 of 2011 be dismissed for disclosing no cause of action against the defendant. On the date set for hearing the application counsel for the respondent who had personal conduct of the matter sent another counsel to hold brief for him and seek an adjournment on the ground that he was indisposed. No affidavit in reply had been filed by that date.
Mr. Odokel Opolot for the applicant then raised two issues. Firstly, that counsel for the respondent did not have locus to appear because no affidavit in reply had been filed. Secondly, that because no affidavit in reply had been filed to controvert what was stated in the affidavit is support, the respondent had by implication admitted what was stated in that affidavit. He prayed that on that basis that application should be granted.
This court then ruled that omission/failure to file an affidavit in reply to controvert what was stated in the affidavit in support meant that those facts were admitted. Court also observed that counsel who was holding brief for counsel for the respondent had not intimated to it that the respondent intended to oppose the application. The application was granted and HCCS No. 337 of 2009 was dismissed with costs. It is that Order which this application now seeks to review.
Order 46 rule 1 under which this application is brought provides that:-

“Any person considering himself or herself aggrieved –

1. 
   by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
   
2. 
   by a decree or order from which no appeal is hereby allowed,
   

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order”.
This rule has been considered in a number of cases some of which were referred to by counsel for the respondent in his submission. Most importantly, in an application like this one the applicant must show that there is an error on the face of the record. In the case of Kanyebwera v Tumwebaze [2005] 2 EA P. 86 (SC-U) as cited by Kiryabwire, J in Combined Services Ltd v Attorney General MA-200 of 2009 it was held that:-
“…in order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The error may be one of fact, but is not limited to matters of fact and includes error of law”.
It is the applicant’s case that this court made an error of law which is apparent on the record when it upheld counsel for the applicant’s submission in Misc. Application No. 170 of 2011 that failure to file an affidavit in reply means that what is stated in the affidavit in support is admitted. What I gather from the argument of counsel for the applicant in this application is that since the issues raised in the affidavit in support of Misc. Application No. 170 of 2011 were matters of law, there was no need to file an affidavit in reply as counsel for the respondent intended to appear and argue the point of law by demonstrating using the plaint itself that there was a cause of action.
Counsel’s spirited argument is that, as a matter of law, in order to determine whether a plaint discloses a cause of action or not you need not look any where beyond the plaint and its annextures. He submitted that it is only the plaint and its annextures that can disclose whether the plaintiff enjoyed a right, the right was violated and the defendant is liable. He supported this argument with the decision in Juliet Aiko v Obure Joseph HCCS No. 01 of 2001.
He concluded that there was an error on the part of this court to have found and ruled that there was need for an affidavit in reply to controvert what was stated in the affidavit in support. He pointed out that the applicant was willing to concede to costs of this application and prayed that it should be granted.
Counsel for the respondent opposed this application and contended that the applicant fell short of the duty to point out the error on the face of the record. He submitted that the phrase “an error on the face of the record” was defined in R v Patel Criminal Appeal No. 13 of 1998. He also referred to the case of Godfrey Sentongo v Stanbic Bank (U) Ltd Misc. Application No. 59 of 2009 which he stated was in all fours with this application. He submitted that it was held in that case that a finding that there is no cause of action is an error that is good ground for appeal but not for review. He argued that similarly the error in this case may be good ground for appeal but not for review.
He relied on Hon. Remmy Kasule v Jack Sabiti & Others HCCS No. 230 of 2006 for the contention that by the applicant failing to file an affidavit in reply it is deemed that the facts stated therein are admitted. He argued that there was therefore no error when the court just stated what the law states. He concluded that there was no iota of evidence to show that there are grounds for review and prayed that the application be dismissed with costs.
Counsel for the respondent also raised an issue on the timing of this application. He argued that it was only brought after they had filed application for taxation of costs. I will start by considering this argument.
The order in Misc. Application No. 170 of 2011 was made on 6^th June 2011 and this application was filed on 21^st December 2011 slightly after six months. The deponent of the affidavit in support of this application who had personal conduct of Misc. Application No. 170 of 2011 explained in his affidavit that he was indisposed. Counsel for the applicant in his submission in rejoinder elaborated on the indisposition and even showed court some medical evidence that Mr. Wesige had a heart problem and was given bed rest for quite some time. He explained that this prevented him from making the affidavit in support of this application in time and moreover he was the only competent person to swear that affidavit to explain why he did not appear in court or file an affidavit in reply.
I find that the applicant has satisfactorily explained to this court why the application was not brought immediately. I also find that a period of six months is still within reasonable time. That disposes of that matter and leads me to consider the argument of counsel for the applicant on the merit of Misc. Application No. 170 of 2011 by stating that HCCS No. 337 of 2011 discloses a cause of action.
Misc. Application No. 170 of 2011 was not heard and determined on its merits. The order granting it was based on the finding of court that by the respondent not filing an affidavit in reply, she admitted what was stated in the affidavit in support. With due respect to counsel for the applicant, I do not think the scope of this application extends to considering the merit of Misc. Application No. 170 of 2011. If this court feels inclined to grant this application it would only be for purposes of setting aside the order erroneously made and reinstating the suit that was dismissed. The effect is that Misc. Application No. 170 of 2011 would then be argued and determined on its merits.
Turning now to the merit if this application, I have carefully considered all the affidavits as well as arguments for and against it. I have also considered all the authorities referred to by both counsel and looked at the record of proceedings in Misc. Application No. 170 of 2011. I wish to start by making a distinction between this application and the case of Godfrey Sentongo v Stanbic Bank (U) Ltd (supra) which counsel for the respondent contended was in all fours with this one. Unlike in that case where the order sought to be reviewed was made on merit upon hearing the parties, the order in this case was not on merit because the application was never argued. The order was based on a point of law raised by counsel for the applicant in Misc. Application No. 170 of 2011 that where an affidavit in reply is not filed then the facts that are not controverted are deemed to be admitted. I therefore do not agree that Godfrey Sentongo v Stanbic Bank (U) Ltd (supra) is on all fours with this one.
The applicant, in my view, has clearly pointed out the error that this court made. Under Order 19 r 3 of the CPR affidavits are confined to matters of facts. As rightly argued by counsel for the applicant questions of law need not be stated in affidavits. The issue as to whether or not a plaint discloses a cause of action is a question of law. The respondent in Misc. Application No. 170 of 2011 did not have to file an affidavit in reply to that question as raised in that application because her counsel could have argued it with or without an affidavit in reply. For that reason, I find that the applicant has shown that by this court finding and ruling otherwise, there was an error apparent on the face of the record that need no extraneous matter to show its incorrectness. This court acknowledges that error and is inclined to review its order that was based on it.
In the result, this application is granted and the order of this court dismissing HCCS No. 337 of 2011 is set aside and that suit is accordingly reinstated. I order that Misc. Application No. 170 of 2011 be fixed for hearing on its merits.

Costs of this application are awarded to the respondent.

I so order.
Dated this 13^th day of July 2012

Hellen Obura

JUDGE
Ruling delivered in chambers at 4.00 pm in the presence of:

1. 
   Mr. Bwogi Kalibala for the applicant.
   
2. 
   Mr. Opolot Odokel for the respondent.
   
3. 
   Mr. Patrick Muherwoha- Director of the respondent company
   

JUDGE

13/07/2012