George William Ndugwa v Twaha Lukwanzi (Miscellaneous Application No. 214 of 2024) [2024] UGCommC 393 (20 March 2024)

5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 0214 OF 2024 (ARISING FROM CIVIL SUIT NO. 60 OF 2023) 10 GEORGE WILLIAM NDUGWA :::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS

TWAHA LUKWANZI :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA 15 RULING

Introduction

This application was brought by Notice of Motion under Section 98 of the Civil Procedure Act, Cap. 71, Order 9 Rule 23 and Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking orders that:

- 20 1. An order that the dismissal order granted in High Court Civil Suit No. 60 of 2023 be set aside and the case be reinstated and determined on merit. - 2. Costs of this application be in the cause.

Background

- 25 The background of the application is detailed in the affidavit in support by Ms. Nakku Claire of M/s Ssekandi & Co. Advocates, Counsel in personal conduct of the matter, and is summarized below: - 1. That the Applicant, who is the Plaintiff in High Court Civil Suit No.

60 of 2023, filed the same claiming breach of contract, specific

5 performance and or a declaration that the Defendant surrenders the original certificate of title of land comprised in Block 383 Plot 10922 in Busiro, Wakiso District to the Plaintiff.

2. That the Applicant followed up the case and duly filed and served the 10 trial bundle on time.

3. That even at the time when the Registrar in charge was transferred, the deponent wrote several letters seeking for the re-allocation and 15 fixing of the matter.

4. That however, when the matter was fixed for hearing, the deponent was indisposed and admitted, making it impossible for her to attend Court.

- 5. That she has taken all the necessary steps for the hearing of the case having filed the trial bundle on time and served the Defendants with the proposed scheduling memorandum. - 25

6. That the deponent prays that the dismissal order is set aside and the matter is heard on its merits.

A supplementary affidavit by Mr. George William Ndugwa, the Applicant was also filed, and is summarized below:

30 1. That at all times the Applicant followed up the matter as informed by his lawyer.

2. That however, the Applicant could not attend Court on the dates set for hearing due to the nature of his business being a school teacher 35 who, during that time was preparing for UNEB exams.

- 5 3. That the Applicant's lawyer informed him of her sickness and even informed him that another lawyer had been assigned to the matter. - 4. That however, the assigned lawyer informed the Applicant that he did not get to know of the date for the hearing since ECCMIS never 10 displayed the given dates.

In reply, Mr. Twaha Lukwanzi, the Respondent opposed the application contending that:

- 1. Ms. Nakku Claire has no authority to swear the affidavit. - 15 2. The contents of the affidavit are fabrications intended to create a cause for the Applicant's negligence, laxity and dilatory conduct for nonappearance when the case was called for hearing. - 20 3. The application is frivolous and an abuse of Court process and thus should be dismissed. - 4. The matter was called up for hearing on several occasions but both the Applicant and his Counsel were absent and no reason was given 25 for their absence. - 5. The Applicant and his Counsel were negligent in the conduct of their case. - 30 In rejoinder, Mr. George William Ndugwa, the Applicant averred that: - 1. He could not attend Court because he was preparing for the UNEB exams given the fact that he is a school teacher. - 2. It is not true that the Applicant never appeared for any Court 35 hearings.

- 5 3. The Applicant through his lawyers appeared on 14th October, 2023 for the last mention of the matter before the Registrar. - 4. That when the Registrar in charge was transferred, it was the 10 Applicant who requested for the re-allocation of the matter and even filed his trial bundle on time. - 5. That the Applicant has never been negligent in handling the matter and neither has his previous Counsel. - 15 Representation

The Applicant was represented by M/s Ssekandi & Co. Advocates while the Respondent was represented by M/s Ayigihugu & Co. Advocates.

The parties were directed to file their written submissions and only Counsel for the Applicant complied and the same have been considered by 20 Court.

- Issues for determination - 1. Whether there is sufficient cause to set aside the order of dismissal of HCCS No. 60 of 2023? - 2. What remedies are available to the parties? - 25 Issue No. 1: Whether there is sufficient cause to set aside the order of dismissal of HCCS No. 60 of 2023?

Applicant's submissions

Counsel for the Applicant, while relying on Order 9 Rules 22 and 23 of the Civil Procedure Rules, submitted that when a suit is dismissed for 30 the nonappearance of the Plaintiff, the Plaintiff can apply to set aside the dismissal order if he or she can prove that they were prevented by

5 sufficient cause from entering appearance when the case was called for hearing.

Counsel for the Applicant further submitted that what amounts to sufficient cause was defined in the case of *Nicholas Roussos Vs Ghulam Hussein Virani SCCA No. 9 of 1993* wherein it was stated that a mistake 10 by an Advocate though negligent, ignorance of procedure by unrepresented defendant and illness by a party may constitute sufficient cause. Counsel further relied on the case of *Gideon Mosa Ochwali Vs Kenya Oil Co. Ltd & Another [2017] KLR* cited with approval in the cases of *Bishop Jacinto Vs the Uganda Catholic Lawyers Society & 2*

15 *Others HCMA No. 696 of 2018, Banco Arabe Espanol Vs Bank of Uganda SCCA No. 8 of 1998* and *Edrisa Kanonya & Another Vs Asuman Nsubuga & Others HCMA No. 373 of 2022.*

Counsel for the Applicant averred that at all material times, the Applicant was at the forefront and had an interest in adjudicating this matter. 20 However, that when the matter was reallocated and given hearing dates, Counsel in personal conduct was indisposed and thus could not make it to Court. Counsel submitted that the assigned Counsel was unable to get the right status of the case via ECCMIS and when he inquired physically, about the matter, he found out that it had been dismissed. Counsel further 25 averred that on the other hand, the Applicant was also not in position to turn up for the hearings as he is a school teacher who had entrusted the matter to be handled by his lawyer and the assigned lawyer did not inform him about the hearing dates.

In conclusion, Counsel for the Applicant submitted that it would defeat 30 justice if the Applicant's prayers for reinstatement of the matter are disregarded. Counsel for the Applicant added that such technical mistakes

5 should not be used as a ground to deter the Applicant from successful litigation.

Analysis and Determination

Before delving into the merits of the case, I wish to resolve the Respondent's contention as stated under paragraph 5 of his affidavit in 10 reply.

Under paragraph 5 of the affidavit in reply, the Respondent stated as follows:

*"That I am further informed by the same Advocates that Nakku Claire has no authority to swear the affidavit as she did."*

15 According to paragraph 1 of the affidavit in support of the application, Ms. Nakku Claire stated that she is Counsel in personal conduct of the matter and well conversant with the matters regarding this application.

It is now trite as provided for under Order 19 Rule 3 (1) of the Civil Procedure Rules and Regulation 9 of the Advocates (Professional 20 Conduct) Regulations SI No. 267-2 that an Advocate can swear an affidavit especially where the matter is well within his or her own knowledge to prove and where it is not contentious. (See: *Mbarara Municipal Council Vs Jetha Brothers Ltd Misc. App No. 10 of 2021* cited with approval in the case of *Goldmine Finance Limited Vs Kato*

25 *Alex HCMA No. 2896 of 2023)*.

In the matter at hand, Counsel Nakku Claire's affidavit contains a brief background of the case and the reasons for her nonappearance in Court on the days when the matter was scheduled for hearing. These facts were within her knowledge as Counsel in personal conduct of the matter and

30 are non-contentious. 5 In the premises, I find that Counsel Nakku Claire had the authority to swear the affidavit as she did. I shall now proceed to resolve the issue of whether there is sufficient cause to set aside the dismissal order granted in HCCS No. 60 of 2023.

Section 98 of the Civil Procedure Act empowers this Court to make such 10 orders as may be necessary for the ends of justice. Further, Order 9 Rule 23 (1) of the Civil Procedure Rules stipulates that:

*"Where a suit is wholly or partially dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in* 15 *respect of the same cause of action, but he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was sufficient cause for nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it* 20 *thinks fit, and shall appoint a day for proceeding with the suit."*

In the cases of *Florence Nabatanzi Vs Naome Binsobodde SCCA No. 6 of 1987* and *Sipiriya Kyarulesire Vs Justine Bakanchulike Bagambe SCCA No. 20 of 1995*, the Supreme Court while handling such an 25 application laid down the principles to apply and these are summarized as follows:

i. First and foremost, the application must show sufficient reason which relates to the inability or failure to take some particular step 30 within the prescribed time. The general requirement notwithstanding each case must be decided on the facts at hand.

- 5 ii. The administration of justice normally requires that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. - 10 iii. Whilst mistakes of Counsel sometimes may amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law. - iv. Where an Applicant instructed a lawyer in time, his rights should 15 not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirement of the law. - v. A vigilant Applicant should not be penalized for the fault of his Counsel on whose actions he has no control. - 20

The term sufficient cause though not defined by the Civil Procedure Rules has been defined in several cases. In the case of *Gideon Mosa Onchwati Vs Kenya Oil Co. Ltd and Another (supra)* the Court relied on the definition in the Indian case of *Parimal Vs Veena Alias Bhati, (2011) 3* 25 *SCC 545*, in which the Court observed that:

"*Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to* 30 *answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In*

5 *this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must* 10 *afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously*."

The Supreme Court in the case of *Capt. Philip Ongom Vs Catherine* 15 *Nyero Owota SCCA No. 14 of 2001* stated that a litigant's right to a fair hearing in the determination of civil rights and obligations which is enshrined in Article 28 of the Constitution should not be defeated on ground of his/her lawyer's mistake.

- 20 In the matter at hand, High Court Civil Suit No. 60 of 2023 was fixed for hearing on 20th October, 2023. On that day, neither Counsel for the Applicant nor the Applicant appeared. The matter was then adjourned to 30th October, 2023 but still neither the Applicant nor his Counsel entered appearance. Furthermore, on 8th December, 2023 the Applicant nor his - 25 Counsel appeared in Court. To this, Counsel for the Respondent prayed to Court to have the matter dismissed under Order 9 Rule 22 of the Civil Procedure Rules. Given that, Counsel for the Applicant as well as the Applicant himself were absent with no reason on record, the matter was dismissed.

It is Counsel for the Applicant's submission that at the time when the matter was scheduled for hearing, Counsel in personal conduct was ill and thus indisposed. This was averred by Counsel for the Applicant under

5 paragraph 5 of the affidavit in support of the application which states as follows:

*"That however, I couldn't attend Court on the date set for hearing due to the fact that I was indisposed and admitted making it impossible for me to attend Court. Copies of medical forms are hereto attached* 10 *and marked annexure A."*

To buttress the above assertion, Counsel for the Applicant adduced a medical form marked as annexure "A".

- 15 I have perused annexure "A" and I have noticed that Counsel Nakku Claire was admitted at Mulago hospital on 28th November, 2023 and was discharged on 15th December, 2023. In the matter at hand, the two hearings of the matter that Counsel for the Applicant missed were scheduled for 20th and 30th October, 2023 respectively and this was a - 20 month before Counsel for the Applicant was admitted in hospital. Further, I have noted that on 8th December, 2023, Counsel was in hospital as per annexure "A".

However, given that Counsel for the Applicant did not bother to notify 25 Court when the matter was called in October, 2023, I find that Counsel for the Applicant was negligent in the way she handled the matter and I agree with the averment of the Respondent as stated in paragraph 14 of the affidavit in reply. With the issuance of hearing notices vide ECCMIS, there must be an exceptional reason for Counsel's failure to appear in Court 30 because the hearing notices are deemed received once issued. This matter as stated by the Respondent in paragraph 8 of the affidavit in reply was called for hearing more than once before it was dismissed.

I am however cognizant of the fact that negligence of Counsel is 35 detrimental to the interests of the litigant who suffers ultimately. I am

5 therefore inclined to rely on the case of *AG Vs AKPM Lutaaya SCCA No.12 of 2002*, in which Katureebe, JSC, held that the litigant's interests should not be defeated by the mistakes and lapse of his Counsel. The same position was considered in the case of *Godfrey Magezi and Brian Mbazira Vs Sudhir Ruparelia SCC Application No.10 of 2002*.

Having considered all the above and in the interest of justice and in accordance with Section 98 of the Civil Procedure Act, the dismissal order granted in *High Court Civil Suit No.60 of 2023,* is hereby set aside. High Court Civil Suit No. 60 of 2023 is accordingly reinstated.

Issue No. 2: What remedies are available to the parties?

In light of the fact that the Respondent incurred costs in opposing this application for reinstatement of High Court Civil Suit No. 60 of 2023, which would not have been dismissed had Counsel for the Applicant

20 appeared in Court on the days when the matter was scheduled for hearing or notified Court accordingly; I hereby grant costs of this application to the Respondent.

High Court Civil Suit No. 60 of 2023 is hereby fixed for hearing on 25th

25 April, 2024 at 9am.

It is so ordered.

Dated, signed and delivered electronically this 20th day of March, 2024. 30

Patience T. E. Rubagumya JUDGE 20/03/2024 35 5:05pm