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Dharmendra Datta and Anor v Pipal Ltd - HCT-00-CC-MA-335 of 2005 arising from HCT-00-CC-CS-279 of 2005 [2005] UGCommC 1 (1 January 2005)

.RTF of original document

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 335 OF 2005
(Arising out of Civil Suit No. 279 of 2005)

1. DHARMENDRA DATTA ]
2. RAMESH DATTA ]
3. SANJAY DATTA ]
t/a RA – MILK LTD ] ::::::::::::::::::::::::::: APPLICANTS

VERSUS

PIPAL LIMITED ::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: KYARIMPA OLIVIA, SINGURA ISAAC AND THOPACHO JULLIET


R U L I N G:

This application was brought by way of notice of motion under 0.33 rr 3 and 4, 0.48 rr 1, 2 and 3 of the civil procedure rules and section 98 of the civil procedure act. It seeks leave to appear and defend the suit. The application is supported by the affidavit of Ramesh Datta the second Applicant. The Respondent also filed an affidavit in reply through Bipinchandra Jamnadas the Managing Director of the Respondent company.

The Plaintiff’s claim against the Defendants in the suit is for payment of a liquidated sum of $120,259.04. and pounds 27311.59 plus costs of the suit. It is claimed by the Plaintiff that the Defendants under their company Ra – milk Ltd used to order for various equipment through the Plaintiff company which is a confirming house in the United Kingdom, and the Plaintiff company would make payments for those orders on Ra-milk Ltd’s behalf. It is further alleged that the Defendants executed Guarantee Deeds, each undertaking to pay and satisfy all money due and owing to the Plaintiff from the said Ra-milk Limited under the aforesaid arrangement. It is on the basis of those Guarantee Deeds that the Defendants were sued individually.

When the application came up for hearing, Mr. Alex Rezida counsel for the Respondents raised a preliminary point of law and made an application. He stated that the main suit was filed against three Defendants however the current application is supported by an affidavit sworn by only one of the Applicants. That nowhere therein does the deponent state or even claim that he is swearing it on behalf of others as well or that he has the authority of others so to do. He therefore prayed that Judgment be entered against the other two Defendants on terms prayed for in the plaint.

Mr. Niwagaba for the Applicants opposed the application and stated that the application by notice of motion shows that it is an application by all the Defendants/Applicants. He further stated that the Grounds being common to all the Defendants and the suit being against them jointly and severally, it was not necessary for each one of them to swear an affidavit that would repeat what one had already deponed to.

That even if it was material that each swears an affidavit, he invited Court to consider the dictates of Justice that substantive Justice be administered without regard to technicalities. He added that if there was any error, it was committed by counsel and not the Applicants.

We have given our utmost consideration to the arguments of both counsel.

An affidavit sworn by an Applicant on his own behalf and that of the other Applicants, but which does not say that that Applicant had any authority from the other Applicants to swear it on their behalf is incompetent in respect of the other Applicant’s application. See: Makerere University –Vs- St. Mark Education Institute Ltd & Ors HCCS No. 378/93.

Indeed, an affidavit being a statement on Oath, one should not swear it on behalf of another without authority to do so. And if he has the authority to do so, we agree with the Learned Judge in the Makerere case, that that fact should be clearly stated in the affidavit or else it is incompetent.

In the instant case therefore, the affidavit of Ramesh Datta is incompetent to support the application of Dharmendre Datta and Sanjay Datta since it does not state that the deponent had authority to swear it on their behalf.

As regards the application to pass Judgment against the two Defendants, we are of the opinion that in the interest of Justice, we should reject the application. This is because the second Applicant’s application raises issues concerning all the three Defendants and there is need for Court to first hear that application, determine it on its merits before passing any Judgment.

Secondly, counsel for the Applicants submitted that if any error was made, it was made by him and not the Applicants. A number of cases have decided that a mistake or error by counsel should not be visited on a Litigant. See: Shabir Din –Vs- Ram Parkash Anand (1955) 22 EACA 48 and Sole Electrics (U) Ltd –Vs- Patrick Makumbi and Anor SC Civil Application No. 5 of 1993.

Counsel for the Applicants took the blame for any error, which error has been found, therefore since the Applicants relied on their counsel’s advise they should not be punished for that. We are of the opinion that this is an error that can be cured in order to ensure the determination of the real questions raised. We therefore invoke the Court’s powers in sections 98 and 100 of the Civil Procedure Act by ordering the Applicant’s counsel to amend the pleadings.

Costs to the Respondent in any event. We so order.
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Kyarimpa Olivia Topacho Jullient Singura Isaac