Bukenya and Ors v Magara (H.C.Miscellaneous Application No. 392 of 2019) [2021] UGCommC 103 (3 February 2021)

THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT KAMPALA [EXECUTION DIVISION]

M. A. No. 392 of 2019

(Arising from M. A No. 243 of 2019)

(Arising from H. C. M. C No. 215 of 2018)

- 1. BUKENYA USAAMA AHMED - 2. MWESIGWA SAMUEL - 3. AL HAJI NASSER NTEGE SSEBAGALA & 135

OTHERS:::::::::::::::::::::::::::::::::::;::::::::::::;::::APPLICANTS

VERSUS

SMART PROTUS

MAGARA::::::::::::::::::::::::::::::::::::::::RESPONDENT/APPLICANT

VERSUS

FINANCIAL INTELLIGENCE AUTHORITY::::::::::::RESPONDENT

RULING

BEFORE: HON. JUSTICE DUNCAN GASWAGA

[1] This is an application brought under, Section 33 of the Judicature Act, Section 98 of the CPA and Order 52 r2 and r4 CPR for; an order dismissing M. A No,243 of 2019 be made against the 1st respondent for being illegal, vexatious, frivolous, incompetent and an abuse of court process and, costs of the application be provided for.

[2] The grounds of this application are set out in the affidavit of Al hajj Nasser Ntege Ssebagala, Bukenya Usaama Ahmed and Mwesigwa Samuel and are that; *the applicants herein are the 138 holders ofjudgment and or order of court in M. A No. 215 of 2018:fhaf the 1st respondent/applicant deliberately omitted and or excluded the applicants when he filed M. A No.244 of 2019 and M. A No.243 of 2019. for an interim order and stay of execution of the above ruling/judgment respectively; that the 1^ respondent/applicant's omission to serve the applicants with the above applications was deliberate, trickery, misleading to this honorable court and an abuse of court process; that at all material time, the 1st respondent was and is still aware that the applicants are affected by both motions in M. A No.244 of 2019 and M. A No.243 of 2019 because they were a party in Mjsc.—Cause No.215 of 2018;that the fact that the 1st respondent served the applicants through their lawyers to wit; Lubega,Wandera and Company Advocates with a Notice of Appeal in Misc. Cause No-215 of 2018 and a letter requesting for a record of proceeding further show that he was aware of their interest in the matter; that the 1st respondent however chose to deliberately exclude the applicants and to block them from enjoying their fruits of judgment in Misc, Cause Np.215 of 2018 which the ¹st respondent seeks to stay; that this deliberate failure and or refusal to include a party/applicants who ought to have been included in the suit/application is an abuse of court process that renders the application illegal,vexatious,frivolous and incompetent and that it is in the interest of justice that the said application Na243 of 2019 for stay of execution be dismissed with costs to the applicants.*

- [3] This application raises one issue; - *(i) Whether M. A No.243 of 2019 should be dismissed* - [4] At the hearing of the application, Counsel for the applicant informed court that Order ¹² rule ³ (i) - (iv) regulates time limits within which to file and serve interlocutory applications. That the application before court was served on the respondents on 02/05/19 and they duly received and accepted service. Further, that an affidavit of service was filed on record on 12/06/2019 sworn by Othieno Lawrence. That a copy of the notice of motion was annexed showing the lawyer's stamp of 'received' proving that they acknowledged receipt. Counsel further relied on the case of Enerqo Project Niskoqradnja Joint Stock Company Vs Brigadier Kasirye Gwanqa & Anor M. A No. 558 of 2009 where it was stated that" *facts not objected to in an affidavit are admitted".* So, the facts in the affidavit herein not objected to are presumed admitted. Counsel prayed that the application be entertained and the applicants granted the prayers sought. - [5] In reply, Counsel for the respondent submitted that an affidavit in reply was filed but in the previous court which is the Civil Division and that this was an error on the part of the lawyers. Counsel prayed that mistake of counsel should not be visited on the party but on the lawyers. Further, that court grants them time to

file an affidavit in reply to enable the respondent to be heard. Counsel further submitted that the application is timely considering that the main application M. A No.392 has not yet been heard as such there would be no prejudice to the applicant. That as per the case of Samwiri Massa, applicant's affidavit in support of motion is simply an affidavit that has been filed but not yet admitted. That according to Order 12 rule 3 the application

was brought and the respondents were clearly identified. They have come to court. That whereas there are some defects on the side of the respondents these are curable with costs and they should not be used to stop a party from being heard. It would be unjust if such order is given. Counsel further submitted that whatever had been stated was in light of Article 28 which gives a right to fair hearing and the parties are before court with intention to be heard and it would only be fair that they are given an opportunity to be heard. That the respondents having appeared, in the alternative and without prejudice, if court can admit the affidavit then we shall submit on the law.

- [6] Counsel for the 2nd respondent submitted that they were served on 02/05/2019 and read and understood the contents of the application. That they don't intend to challenge the application. - [7] In a brief rejoinder, counsel for the applicant's relied on the case of Pentecostal Assemblies of God Lira Limited Vs Pentecostal Assemblies of God and Anor, M. A No.014 of 2018 wherein Ssekaana, J, relied on Captain Phillip Onqom Vs Catherine Nyero Qwota, SCCA No.14 of 2001 which held that;

*"it would be absurd or ridiculous that every time an advocate takes a wrong step, thereby losing a case, his client would seek to be exonerated. This is not what litigation is all about. Counsel applied a wrong strategy...no sufficient cause has been shown to entitle the applicant to the relief sought".*

[8] He submitted that he disputed the issue of mistake of counsel owing to the fact that it was just dilatory conduct by the 1st respondent. Counsel further submitted that the pleadings were clearly marked as

- for the Executions & Bailiffs Division and as such Court should penalize the applicant and his counsel. Further, that even if the reply was filed in court it was out of time and there is no time to allow them to file it or extend the time within which to file it. That the reply alleged to have been filled cannot be a court record. That as for Article 126(2)(e) of the Constitution of Uganda, 1995, it should be noted that the matter here is not a technicality. That the purpose of timelines is not for nothing. As per Order 12 r 2(iii) the respondents are allowed 15days. That the applicants served on the very day they filed 02/05/2019 and as such the reply should have been filed on or before the 20/05/2019. That by failing to adhere to the Court rules, the respondents put themselves out of Court protection. Also, by failing to file a reply, they lost opportunity to file/ make averments. That allowing the 1st respondent to make submissions in M. A No.392 of 2019 would amount to allowing them to submit from the bar. Counsel prayed that the objection is upheld and the applicants allowed to proceed without the respondents since 2nd respondents had conceded and don't intend to file submissions in reply. - [9] From the facts presented before Court, it is clear that the applicants filed an application, with a supporting affidavit and the same was not replied to by the respondent. In their defence, the respondent submitted that mistake of counsel ought not to be visited on the client. - [10] In the case of Samwiri Massa Vs Rose Achen (1978) HCB 297 it was held that;

*"Where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted".*

[11] Such is the case in this particular scenario. Counsel for the respondents purportedly filed an affidavit in reply, but to the High Court Civil Division. This cannot be taken as a mistake or oversight because the pleadings were clearly marked as those of the High Court Execution Division. This in the Court's opinion amounts to negligent conduct by the respondent. ^I am inclined to agree with the decision in

Captain Phillip Ongom Vs Catherine Nyero Owota SCCA No. 14 of

2001 where Mulenga, JSC held that;

*"it would be absurd or ridiculous that every time an advocate takes a wrong step, thereby losing a case, his client would seek to be exonerated. This is not what litigation is all about. Counsel applied a wrong strategy....no sufficient cause has been shown to entitle the applicant relief sought"*

- [12] In the circumstances therefore, Counsel having not shown sufficient cause why an affidavit in reply wasn't filed, leaves this application unchallenged considering that this is an application that requires affidavit evidence. - [13] Accordingly, this application is hereby allowed with the following orders; - (i) Misc. Application No.243 of 2019 is hereby dismissed for being illegal, vexatious, frivolous, incompetent and an abuse of court process. - *(ii)* Costs of this application are provided for

^I so order

Dated, signed and delivered this 03rd day of February 2021

Duncan Gaswaga JUDGE