Italian Asphalt Haulage Ltd & Ors v Assist (U) Ltd (Civil Appeal No. 9 of 2000 )
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPEAL NO. 9 OF 2000
(Arising from Miscellaneous Application No. 223 of 1999 of
the Chief Magistrate’s Court of Mengo)
1. ITALIAN ASPHALT HAULAGE LTD
2. TITO O. TWIJUKY P/A }:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS
3. M/S TRUST MASTERS AGENCIES
ASSIST (U) LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE E.S. LUGAYIZI
unnecessary to reproduce here. However, with the leave of Court, the appellants subsequently amended the third ground of appeal to read as follows,
Firstly, he pointed out that the purpose of all the receipts under Annexture “B” series was to show the expenses the respondent incurred in repairing the suit premises. However, quite a number of those receipts had nothing to do with repairs of any building. Instead, they related to repairs of motor vehicles. For that reason, Mr. Kibuuka Musoke argued that Mr. Laery’s affidavit was fundamentally defective because it was tainted with untruths and could not lawfully support the Notice of Motion. He cited the case of Bitaitana vs. Kananura  11CR 31 in support of that position. Secondly, Mr. Kibuka Musoke pointed out that the affidavit referred to above also contained hearsay in paragraphs 14, 19, 21, 22 and 25; and for that reason it was defective because it offended Order 17 rule 3 of the CPR. He elaborated that the matter which was before the learned Chief Magistrate was one where Court was supposed to determine the final rights of the parties. It was not an interlocutory matter in which the respondent could safely rely on Laery’s affidavit that contained hearsay. That aside, Mr. Kibuka Musoke further argued that it was not even possible to “sever” the offensive areas of Laery’s affidavit from the non offensive areas of it and retain an affidavit that was intelligible. He also pointed out that Article 126(e) of the Constitution would not apply in this case. For those reasons Mr. Kibuka Musoke called upon Court to allow the appeal and set aside the learned Chief Magistrate’s ruling which (in his view) did not take into account the above defects.
On the contrary, Mr. Mugisha submitted that the appeal had no merit in it because Laery’s affidavit that accompanied the Notice of Motion was not defective on account of its annextures or its contents. With regard to receipts under Annexture ‘B” series which did not relate to repairs of the suit premises, Mr. Mugisha pointed out that their inclusion was only a mis-arrangement and not a pointer to deliberate lies. With regard to the area of Laery’s affidavit that contains hearsay evidence, Mr. Mugisha pointed out that the said defect can be cured by the evidence in Laabo’s and Mangeni’s affidavits which was direct eye witnesses’ evidence and went to confirm the reliability of Laery’s hearsay’s evidence. In addition to the above, Mr. Mugisha pointed out that some of the annextures which did not relate to repairs of the suit premises and the hearsay evidence in Laery’s affidavit could safely be severed from the documents in question without rendering them fundamentally defective. He cited the decision in ‘Besigye vs. Museveni Presidential Election Petition No.1 of 2001 to back his position and appealed upon Court to dismiss the appeal with costs.
In Court’s opinion, it is hot in dispute that the repairs to the suit premises took place. It is also not disputed that some of the receipts under Annexture “B” series to Laery’s affidavit dated 10th September 1999 do not relate to repairs of the suit premises. What is clearly in issue in this appeal is the following.
(a) Whether Laery’ s affidavit dated 10th September 1999 is fundamentally defective on account of the receipts which do not relate to repairs of the suit premises?
(b) Whether Laery’s affidavit offends Order 17 rule 3 of the CPR?
(c) If it does, whether that fact renders the affidavit fundamentally defective?
(d) The available remedies.
With regard to the first issue, the receipts the respondent included under Annexture “B” series which do not relate to repairs of the suit premises are B39, B54, B102, B105,. B 107, B 110, B111, B 112, B 115, B 118, B 120, B 125 and B 144. Clearly, V those receipts are a small portion’ of the total receipts Laery annexed to the affidavit in support of the Notice of Motion. In fact they account for only 10% of the total, receipts. The Test of the receipts (i.e. 90% of them) seem to point to the fact of repair of the suit’ premises. Indeed, the apparently truthful receipts can easily be separated from the dubious receipts. It seems from the learned Chief Magistrate’s ruling that although he did not exactly say so he approached that area of the ruling with a similar outlook. He was mindful of the presence of the dubious receipts and did not mix them with the apparently good ones. That approach was approved by the Supreme Court in Besigye vs. Museveni (Supra). Court will, therefore, not fault the learned Chief Magistrate for not finding that the receipts which did not relate to repairs of the suit premises rendered Laery’s affidavit fundamentally defective on account of the fact that they projected lies. In any case, the receipts were not vital in proving the heart of the respondent’s case under the Notice of Motion which was that the Special Certificate ought to be cancelled on account of the fact that it was mis-used to attach property that was outside the suit premises and some of which was not even named in the Special Certificate. That means that Laery’s affidavit was not fundamentally defective on account of the receipts which were attached to it and did not relate to repairs of the suit premises. Court has therefore resolved the first issue in favour of the respondent.
With regard to the second issue, it is first of all important for Court to take a close look at Order 17 rule 3(1) of the CPR which provides as follows,
“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated”
“14. THAT lam informed by the PC Oyat of Katwe Police Station and I verily believe the same to be true that the said properties were towed from Nalukolongo in the presence of the following:
(i) Ssematimba Abaasi
(ii) Sentamu Julius
(iii) PC Oyat
(iv) PC Odaga ...
(v) PC Opio ...
(vi) PC Adipa...
19. That I am advised by the Applicant’s lawyers and 1 verily believe the same to be true that it would be a traversity of justice to allow the above distress to subsist in he light of what I have stated herein above.
22. That I am further advised by the Applicant‘s above said lawyers and I verily believe the same to be true that the whole exercise was unwarranted in so far as the Applicant did not owe any arrears of rent in as much as pursuant to clause 3(C) of the sub-lease Agreement the Applicant had extensively effected repairs to the demised premises as stated herein above which though acknowledged by the 1st Respondent had not yet been re-imbursed by the 1 Respondent.
25. THAT whatever I have slated herein above in paragraphs 1, 2, 3 ... is correct and true to the best of my knowledge and belief and whatever I have stated in correct and true to the best of my information from the sources disclosed.”
With regard to the third issue, the contents of Order 17 rule 3(2) reveal quite a lot in this area of controversy. It reads as follows,
“The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter ... shall, unless the court otherwise directs, be paid by the party filing the same.”
“substantive justice shall be administered without undue regard to technicalities”
With regard to the final remedy Court has this to say. Since Court has resolved the first and third issues (which are the heart of this appeal) in favour of the respondent it means that the appeal which is the subject of this judgement has not succeeded. In the circumstances, Court has no choice but to dismiss the appeal with costs; and it is so ordered. In the result, the learned Chief Magistrate’s ruling dated 19th January 2000 is hereby upheld.
Be that as it may, before Court takes leave of this matter it wishes to point out that it was imprudent for the appellants’ advocates to advise the appellants to appeal to this Honourable Court after merely losing some preliminary objections. After the learned Chief Magistrate’s ruling the better course should have been for the parties to proceed with the substance of the Notice of Motion and finally appeal once on all matters if any of the parties was dissatisfied with the outcome of the Notice Motion. In view of the course the appellants took, they will now realise that they have to go back to the lower court to finish what they left unfinished in respect of the Notice of Motion. This is not only going to be very expensive for them financially but they will discover, too, that it is a roundabout way of finally disposing of the Notice of Motion.
Read before: At 9.06 a.m.
Mr. Bagaga for Respondent