Babuyirana Butchermen Development Association v Attorney General & 2 Others (Miscellaneous Application 15 of 2024) [2025] UGHC 31 (21 January 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KASESE

HCT-25-CV-MA-0015-2024

(Arising from HCT-01-CV-CS-0011-2020)

BABUYIRANA BUTCHERMEN DEVELOPMENT ASSOCIATION=========APPLICANT

VERSUS

1. ATTORNEY GENERAL 2. ALISAMU CO. LTD 3. MPONDWE-LHUBIRIHA TOWN COUNCIL================RESPONDENTS

BEFORE JUSTICE DAVID S. L. MAKUMBI

RULING

REPRESENTATION:

Applicant represented by M/S Bagyenda & Co. Advocates

1st and 3rd Respondents represented by Attorney General’s Chambers

2nd Respondent represented by M/S MRK Advocates

BACKGROUND:

This application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act; Section 33 of the Judicature Act; and, Order 9 Rule 18 and Order 52 Rule 1 the Civil Procedure Rules by which the Applicant seeks orders that:

1. The order dismissing High Court Civil Suit No. 11 of 2020 at Fort Portal be set aside and the suit be reinstated and heard interparty.

2. Costs of and incidental to this application be provided for.

The grounds of the Application as laid out in the Affidavit in Support sworn by Mujune Steven the Managing Director of the Applicant are that the Applicant was the Plaintiff in High Court Civil Suit No. 11 of 2020 at Fort Portal and that the suit was set down for hearing without the Applicant’s knowledge. Furthermore the suit was dismissed without the Applicant’s knowledge while the Applicant’s Advocate was ill to wit the Applicant provided medical records to prove that her Advocate was ill. The Applicant continues to be interested in the suit and its dismissal was a result of selfish and unethical conduct of the Defendants’ Counsel who set down the suit for hearing without the knowledge or notice of the Applicant or her Advocate. The Managing Director continued to state in the Affidavit in Support that it is just and fair that the application be granted.

In reply to the Application Rachael Atumanyise of the Attorney General’s Chambers swore an Affidavit in Reply on behalf of the 1st and 3rd Respondents by which she stated that the Application was remote, without basis and containing material falsehoods. She further stated that the Applicant filed the suit in issue on 9th March 2020 and never extracted Summons for Directions after the Defendants had filed their Written Statements of Defence and had also failed to prosecute the case. The matter came up before the High Court on 7th February 2023, 14th April 2023, 14th June 2023, 21st August 2023 and 20th October 2023 and on all occasions both Counsel and the Plaintiff were absent from court. The matter was subsequently dismissed for want of prosecution. The Deponent further stated that the Plaintiff had failed to show sufficient cause for inability to prosecute the matter and that the Application was brought with inordinate delay. It was also stated that the Application lacked merit and ought to be struck out with costs.

In further reply to the Application one Saturday Musolho swore an Affidavit in Reply to the Application by which he stated that the Notice of Motion and supporting Affidavit contained falsehoods. The Deponent reiterated the statements made on behalf of the 1st and 2nd Respondents to the effect that the Applicant had failed on several occasions to prosecute the case. It was further stated that the suit was dismissed after the cause list had been published at the Court Notice Board and also on the relevant Bar-Bench Whatsapp forum and that there was therefore no sufficient reason for the Applicant not to have attended court. The Deponent also prayed that Court be pleased to order the Applicant to deposit security for costs in the sum of UGX 22,000,000 being the taxed bill of costs in the dismissed suit. The Deponent further accused the Applicant of dilatory conduct for having filed the Application over 7 months after the suit was dismissed and prayed that the Application be dismissed.

Applicants’ Submissions:

Counsel for the Applicant submitted placing reliance upon Section 98 of the Civil Procedure Act and Order 9 Rule 18 of the Civil Procedure Rules as the foundation for the Application.

Counsel further placed reliance upon the case of RM Market Links (U) Ltd & 3 Others v Ugafin (U) Ltd – HC Commercial Division MA No. 334 arising from Civil Suit No. 419 of 2014 to outline the definition of good cause. Counsel further relied on Eriga Jos Perino v Vuzzi Azza Victor & 2 Others – Arua HCMA No. 9 of 2017 arising from HCCA 9 of 2009 wherein the Court decided that illness by a party may constitute sufficient cause and that furthermore where there are serious issues to be tried the court ought to grant the application.

Counsel made reference to the facts as stated in the Affidavit in Reply to argue that the Applicant’s Advocate upon whom the Applicant relied for updates about the case had fallen ill at the same time that the suit had been set for down for mention and given a last adjournment without the knowledge of the Advocate. Counsel further argued that the Applicant’s suit was dismissed on 20th October 2023 for want of prosecution without any notice or service of hearing notices. Counsel argued that the evidence of the Advocate’s illness as tendered in court was sufficient reason for failing to take a particular step in time. It was further argued that there was a duty of care and it was a matter of professionalism and courtesy between Advocates to serve or notify each other about the status of matters in which they appear together. Counsel then argued that the mistake of Counsel should not be visited upon the client citing the decision in Mzee Khalifan v Sara Ayubu Kasese HCCA No. 29 of 2023.

Counsel concluded by pointing out that the Applicant was and remained interested in pursuing the civil suit and prayed that the main suit be reinstated and costs be in the cause.

1st and 3rd Respondents’ submissions in Reply:

Counsel for the 1st and 3rd Respondents argued in reply and framed the following issues:

1. Whether the Applicant has shown sufficient cause to set aside the order dismissing Civil Suit No. 11 of 2020 for want of prosecution.

2. What remedies are available to the parties.

As concerns the first issue Counsel relied on the Indian Supreme Court case of Parimal v Veema – Civil Appeal No. 1467 of 2011 to outline the meaning of sufficient cause and further cited various decisions of the High Court on the question of sufficient cause to argue that the reason advanced by the Applicant could not explain why the Applicant had no representative in court despite the absence of their Advocate. Counsel further pointed out that the matter was raised 4 times in 2023 in the absence of the Applicant and the Applicant had not demonstrated anywhere that he took prudent steps to investigate the status of the matter. Counsel further argued that the absence of one Advocate could not have prevented the attendance of another Advocate from the firm in question. Counsel therefore argued that there was no sufficient cause demonstrated by the Applicant.

As concerns the second issue Counsel argued that the Application be dismissed with costs to the 1st and 3rd Respondents.

2nd Respondent’s Submissions in Reply:

Counsel for the 2nd Respondent argued in reply based on the same issues framed by the 1st and 3rd Respondents and as concerns whether there was sufficient cause to set aside the order dismissing the suit, Counsel argued that there was no sufficient ground and that furthermore it was clear that the Plaintiff had never taken out Summons for Directions within the time prescribed Order 11A Rule 1(2) of the Civil Procedure Rules. Instead the Summons for Directions were issued on 2nd April 2022 after pleadings closed on 10th June 2020.

Counsel then went on to argue that the conduct of both the Respondent and their Advocate in the main suit is what led to the dismissal of the suit as they had failed on numerous occasions to attend court despite the matter being published on the Court Cause-List on the Court Notice Board. Counsel further cited the decision of the Court of Appeal in Twiga Chemical Industries Ltd v Viola Bamusedde t/a Tripple B Enterprises Ltd – Civil Apppeal No. 9 of 2002 in which it was held that a Defendant has no burden to prove that a Plaintiff who was absent when the suit is called for hearing was served with a hearing notice and that Court is not required to ascertain whether the Plaintiff was served or not. Counsel argued that the Applicant was not entitled to claim that they were not served.

Counsel further argued that the facts about the Applicant’s Advocate’s illness were hearsay and could not be relied upon.

Counsel also argued that the Applicant was expected to show sufficient cause for failing to prosecute its case and no such cause has been shown since the Applicant had never been present in court to prosecute their case. Counsel further argued that the Applicant only saw fit to bring this Application 7 months later when it became apparent that the 2nd Respondent was about to apply for execution to recover the taxed costs.

As concerns remedies in this matter Counsel for the 2nd Respondent prayed that the Application be dismissed with costs but also prayed in the alternative that if the court was inclined to grant the application that the Applicant be ordered to deposit security for payment of the taxed costs of UGX 22,000,000 as the Applicant had no known assets and yet they continue to engage the 2nd Respondent in unnecessary expenses and costs.

ANALYSIS:

In considering this matter I take into account the Applicant’s reliance upon Section 98 of the Civil Procedure Act and Order 9 Rule 18 of the Civil Procedure Act. However, Order 9 Rule 18 of the Civil Procedure Act refers to situations involving suits dismissed under Rules 16 or 17 of the said Order. Civil Suit No. 11 of 2020 before the High Court at Fort Portal was dismissed for want of prosecution by virtue of Section 17(2)(a) of the Judicature Act and Section 98 of the Civil Procedure Act. This is evident in the extract of the court proceedings annexed as “A” to the 1st and 3rd Respondents’ Affidavit in Reply.

This Application is therefore only considered in accordance with the inherent powers of this Court to make orders necessary for the ends of justice to be met under Section 98 of the Civil Procedure Act.

Furthermore, in considering this Application I shall address the matter along the same issues framed by the Respondents to wit:

1. Whether the Applicant has shown any sufficient cause why the dismissal of Civil Suit No 11 of 2020 at the High Court in Fort Portal should be set aside.

2. Remedies available.

As concerns sufficient cause, the Applicant’s primary argument for not attending Court is that their Advocate Mr. Baluku Godfrey fell ill on the 19th of August 2023 and was admitted at Mugambwa Clinic with malaria and hypertension was also later admitted at Kilembe Mines Hospital on 18th October 2023. This detail is contained in Paragraph 8 of the Affidavit in Support sworn by Mujune Steven. However, on closer examination it was noted that while the Deponent referred to Mugambwa Clinic in the Affidavit in Support, Annex C provided as proof of admission to a clinic refers to Mubuku Clinic. Furthermore the document concerning admission to the Clinic (Annex C) indicates that Mr. Baluku was admitted on 19th August 2023 and discharged on 21st August 2023. A further document Annex D indicates that Mr. Baluku was admitted at Kilembe Mines Hospital from 18th October 2023 to 23rd October 2023.

Counsel for the 2nd Respondent contested the evidence of Mr. Baluku’s illness in Paragraph 8 of the Affidavit in Support on the grounds that it was hearsay. However, I have reviewed the evidence in question bearing in mind that Order 19 Rule 3(1) of the Civil Procedure Rules provides that 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.

In this matter it is evident that the facts in Paragraph 8 of the Affidavit in Support sworn by Steven Mujune concerning Mr. Baluku’s illness are facts that are within the knowledge of the deponent by virtue of the annexed documents “C”, “D” and “E”. Such evidence would therefore not be deemed to be hearsay as the Deponent is basing his facts in Paragraph 8 on the documents annexed to the affidavit. However, as I have already pointed out above, there was an inconsistency concerning the clinic where Mr. Baluku was admitted from 19th August 2023 to 21st August 2023. Whereas in the affidavit the clinic was identified as Mugambwa Clinic, the annexed document was identified as Mubuku Clinic. This inconsistency called into question the facts of Mr. Baluku’s illness from 19th August 2023 to 21st August 2023. However, in the election petition of Col (RTD) Dr. Besigye Kizza v Museveni Yoweri – Supreme Court Election Petition 1 of 2001, His Lordship the Late Justice Tsekooko held that whenever possible, a court which is faced with an affidavit containing some inadmissible matters that are deliberately intended to mislead and that can be severed and discarded without rendering the remaining part of the Affidavit meaningless, court should be justified in severing the offending part and using the rest of the affidavit.

In light of the above, I find that while the evidence of Mr. Baluku’s illness from 19th August 2023 to 21st August 2023 is admissible on grounds of being within the knowledge of the deponent within the meaning of Order 19 Rule 3(1) of the Civil Procedure Rules I find that the burden of proving the said fact has not been discharged. This is because the document annexed as “C” is inconsistent in name with that referred to in Paragraph 8 of the Affidavit in support. Section 106 of the Evidence Act provides that in civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon them.

I have also reviewed the whole question of the illness of Mr Baluku against the backdrop of the dismissed suit. It is evident from the copy of the court record tendered as Annex A to the 1st and 3rd Respondents’ Affidavit in Reply that from the 17th of June 2022 when the suit was first called before the Registrar in response to Summons for Directions till dismissal on 20th October 2023 the suit had been cause-listed seven times without a single attendance by the Applicant or their Advocate. The Applicant claimed to have changed Advocates on 4th April 2023 due to illness of the previous Advocate but no evidence was led to prove the illness of the previous Advocate. Regardless of the claims of illness of the Advocates in this matter I find that the Applicant was woefully negligent in terms of prosecution of the main suit. There is simply no justification at all for failing to show up in Court even once over a span of 7 hearings. There is no reflection at all that the Applicant in this matter demonstrated the slightest level of due diligence in terms of following up their case. In terms of what amounts to sufficient cause in setting aside a dismissal of a suit for want of prosecution I am inclined to agree with the Respondents that there is no sufficient cause demonstrated in this matter.

Even if the Advocates in personal conduct were truly ill, I am persuaded by the argument by Counsel for the 1st and 3rd Respondents that instructions to Advocates do not restrict the same to a particular Advocate. Regulation 5 of the Advocates (Professional Conduct) Regulations place a duty on an Advocate to appear in court for a client either in person or brief a partner or a professional assistant employed by the firm. Under the same Regulation even where the Advocate or their partner or professional associate is unable to attend court leeway is given to brief another advocate acceptable to the client to appear. In light of this regulation the Applicant in this matter would not only need to prove that his Advocate was ill but he would also have to demonstrate why another advocate could not step in within the context of Regulation 5 of the Advocates (Professional Conduct) Regulations. I find therefore that the Applicant has failed to prove sufficient cause within the definition as cited above from the Indian Supreme Court by Counsel for the 1st and 3rd Respondents.

Counsel for the Applicants also sought to rely on this Court’s own decision in Mzee Khalifan v Sara Ayubu & 2 Others – HCT-01-LD-CV-CA-0029-2023 wherein this Court treated the failure of the Plaintiff’s lawyer to attend court as a mistake which ought not to be visited upon the client. However, the facts in that matter are distinguishable from this present matter in more than one way. First, the Plaintiff and lawyer in the Mzee Khalifan case were present in court on previous occasions unlike in the present case where neither the Applicant nor their lawyers past and present had ever appeared in court. Secondly the setting aside of the dismissal in the Khalifan case was based upon the fact that it was on court record that both lawyers had agreed to seek an adjournment prior to the dismissal of the case. Once the adjournment was secured, Counsel for the Defendant neglected to inform his colleague about the next date and opted to proceed as if he had made his colleague aware of the same and moved court to dismiss the suit. This was clearly duplicitous conduct and as much as Counsel for the Plaintiff was under a duty to follow up the suit, the Defendant in the Khalifan matter could not be seen to benefit from the duplicitous conduct of Counsel for the Defendant. Furthermore the Plaintiff could not be victimized on account of the lack of coordination between the lawyers.

In this present matter there is no evidence at all that the Plaintiff and Defendants’ respective lawyers had ever agreed on how to proceed in this matter in order for the Applicant to claim that they acted unprofessionally. The entire blame in this matter rests squarely on both the Applicant and their lawyers who clearly failed to diligently follow up their case. I am also in agreement with Counsel for the 2nd Respondent that the motivation for this application seems to be the fact that the Applicant is facing the consequences in execution of costs for the lack of diligence in following up the suit.

Counsel for the 2nd Respondent also raised the question of the expiry of the period for extracting Summons for Directions. However, in my view the issue of expiry of the Summons for Directions is not open to the 2nd Respondent to plead in response to this Application. The question of expiry of Summons for Directions must be proactively raised as a preliminary objection at the earliest opportunity by the Defendant in any case and not in response to an Application for reinstatement of the case.

In light of the foregoing, I find that this application fails.

ORDERS:

This Application is accordingly dismissed with costs to the Respondents in accordance with Section 98 of the Civil Procedure Act.

I so order.

Ruling delivered this 21st day of January 2025.

David S. L. Makumbi

JUDGE