THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
HCT-00-CC-MA-0610 – 2007
(Arising from HCT-00-CC-CS-0901-2004)
UGANDA MICRO FINANCE UNION LTD ……………..….APPLICANT
SEBUUFU RICHARD ……………..………..……..…RESPONDENTS
BEFORE HON MR. JUSTICE LAMECK N. MUKASA
This is an application brought by Notice of Motion under Order 9 rule 23 and Order 2 rule 1 of the Civil Procedure Rules for orders that:
The dismissed order in Civil suit No 901 of 2004 be set aside.
The costs of this application be provided for.
The application is supported by an affidavit sworn by Byrd Sebuliba an advocate practicing with M/S Shonubi, Musoke & Co Advocates and Solicitors, the firm of lawyers acting for the Applicant. He therein avers that Civil Suit No. 901 of 2004 was on 14th September 2006 dismissed for want of prosecution. That the applicant was not informed by their lawyers the, M/S Mukwatanise & Co. Advocates that the case was coming up for hearing. It is stated that the applicant is still interested in pursuing the case further and contends that it was prevented by sufficient cause from attending court when the case came up for hearing.
In paragraph 9 of his affidavit Mr. Byrd Sebuliba states:-
“That whatever is stated hereinabove is true and correct to the vest of my knowledge.”
Order 19 rule 3 (I) of the Civil Procedure Act provides:-
“(i) Affidavits shall be confined to such facts as the deponent is of his or her own 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.”
When Civil Suit No. 901 of 2004 was called for hearing on 14th September 2006 the plaintiff M/S Uganda Micro Finance Union Ltd, the Applicant in this Application, and its counsel were absent. The suit was dismissed under Order 9 rule 22 of the Civil Procedure Rules. As of that date M/s Mukwatanise & Co Advocates were the lawyers on record as representing the Applicant. M/s Shonubi, Musoke & Co Advocates came on board to represent the Applicant on 4th September 2007 when they filed a Notice of Change of Advocates. Since the Applicant is a corporate entity information as to the hearing could only have been given to the officers of the Applicant Company. Mr. Sebuliba was not an officer of the Applicant Company. In paragraph 1 of his affidavit he actually states that he is an advocate with M/s Shonubi, Musoke & Co Advocates. In the circumstances I find it a lie for Mr. Sebuliba to state that to the best of his knowledge that M/s Mukwatanise & Co. Advocates had not informed the Applicant of the hearing date. The situation would have been different had he been the internal lawyer or legal officer of the Applicant. In Sirasi Bitaitwa & Others Vs E. Kavuma 1977 HCB 34 it was held that an application supported by a false affidavit is bound to fail because the applicant in such a case does not come to court with clear hands and tell the truth. Even if his averment was based on his belief founded on information, neither does he say so nor does he name the source of information. Normally an affidavit contains a paragraph where it is states what particular facts are true to the knowledge of the deponent and what is stated as information believed to be true by the deponent. The grounds of belief must be stated with sufficient particularity to enable the court to determine whether it would be safe to act on the deponent’s belief. An affidavit must disclose the matters based on the deponents knowledge and those based on information and belief. An affidavit which fails to do so is defective and cannot be relied upon. See Kabwimukya Vs Kasigwa (1978) HCB 251. I wonder why Mr. Sebuliba chose to swear the affidavit instead of an officer of the Applicant company.
This application was made under Order 9 rule 23 of the CPR which provides:-
“(I) Where a suit is wholly or partly dismissed under Rule 22 of this order, the plaintiff shall be precluded from bringing a fresh suit in 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 non appearance 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 thinks fit and shall appoint a day for proceeding with the suit.”
The above rule requires the applicant to show sufficient cause for non-attendance on the day the dismissed cause was fixed for hearing. The reason given in this application is that the applicant was not informed by their lawyers, Ms Mukwatanise & Co. Advocates, that the case was coming up for hearing.
Courts have attempted to lay down some of the grounds or circumstances which may be accepted as sufficient cause. Among these has been a mistake by an Advocate though negligent. In Willian Gubaza Vs Uganda Electricity Board HCCS No. 571/ 93 (1996) VI KALR 10 it was held that under Order 9 rule 20 (now 23) court has a discretion to consider whether a mistake of Counsel may be treated as sufficient for non appearance of the plaintiff when his case was called for hearing.
In exercise of its discretion under in applications of this nature Court should be guided by the following:-
whether the applicant had the intention to appear
nature of the case
whether a prima facie case is made out.
See National Insurance Corporation Vs Mugenyi & Co Advocates (1987) HCB 28.
The applicant is a corporate entity and as such appearance on its behalf could only be by its authorised officer or its advocate. In S. Kyobe Senyange Vs Naks Ltd (1980) HCB 30 it was held that where a party is represented by a Counsel, appearance is made by his Counsel. In the instant case, the applicant was represented by Ms Mukwatanise & Co Advocates who had a duty to appear on its behalf when the suit was dismissed. However, no lawyer from Ms Mukwatanise & Co Advocates has sworn an affidavit to show why none of the lawyers in that firm attended court that day. There is no evidence that any officer of the applicant had been detained or briefed to attend Court but failed to do so due to failure of their counsel to notify him of the hearing date. It is doubtful whether the applicant was not informed of the hearing date. I have already pointed out that Mr. Sebuliba was not competent to make an averment with regard to that fact as he was not in position to receive that information. I find that the Applicant had failed to show that it was not notified of the hearing date and has failed to show that it had the intention to appear either through its officials or lawyer. In NIC Vs Mugenyi & Co Advocates (Supra) the Court of Appeal said:-
“The main test for re-instatement of a suit was whether the applicant honestly intended to attend the hearing and did his best to do so. Two other tests were namely the nature of the case and whether there was a prima facie defence to that case.”
In paragraph 5 of the affidavit in support it is stated that when the Applicant became aware of the dismissal, they engaged other lawyers M/S Shonubi, Musoke & Co Advocates and they are still interested in pursuing this case further. The suit was dismissed on 14th September 2006. On 4th September 2007, nearly a year after the dismissal, M/S Shanubi, Musoke & Co Advocates filed a notice of change of advocates and on the same day filed this application and Misc Application No. 611 of 2007. Unless informed by an officer of the Applicant, which is not so stated in the affidavit, Mr. Sebuliba was not in position to know when the Applicant became aware of the dismissal. In the circumstances the delay remains unexplained. However, there is no limitation period within which the application ought to be brought, though it must be within a reasonable time. In Giruko Vs Acan & Sons (U) Ltd (1971) EA 448 Goudie J stated:-
“ I am very far from satisfied that sufficient cause for non appearance has been shown, under Order 9 rule 20. At the same time all authorities support the view that, the court has inherent power to restore a suit dismissed for default even if no sufficient cause is shown --- I have hesitated whether to do so in this case. In view of the long delay in bringing the application --- . However, there is no limitation period within which the application itself needs to be brought -- “
In Bawa Singh Bharj (Properties Ltd) VS Estate Consultants Ltd& Others HCCS 331 of 1997 (1998) IV KALR 10 while considering what is inordinate delay Justice Moses Mukiibi sought guidance of Order 15 (now 17) rule 6 (I) CPR where the maximum period of delay provided for is two years.
Despite the delay to file this application, the applicant has engaged another firm of lawyers to pursue its case further. The engagement of alternative Counsel show the applicants interest in pursuing its case.
In considering the nature of the case and whether the applicant has made out a prima facie case I have to study the pleadings before me. In the plaint the applicant, who is the plaintiff, principally seeks from the Respondents the refund of monies paid for a failed consideration. Court has a duty to protect against unjust enrichment.
In absence of evidence it is difficult to ascertain whether a prima facie case has been made out. I am of the view that what should be considered is whether the applicant’s claim in the main suit discloses a cause of action. In the plaint the applicant claims that on 5th August 2004 the Respondents offered to sell motor vehicle Reg. No. UAF 772 T to the Applicant. The Applicant agreed to buy the vehicle at Shs13,800,000/=. That subsequently payment was made to the 2nd Respondent in two instalments of Shs6,900,00 each. That in breach of the agreement of sale the Respondents failed to deliver the original Log Book and an executed transfer of the vehicle to the Applicant. The vehicle was subsequently impounded from the Applicant at the instance of its registered owner. I find that the pleadings above raise a cause of action against the Respondents.
This court has wide inherent powers under section 98 of the Civil Procedure Act to administer substantive justice. See also Article 126 (2) (e) of the Constitution. Considering the nature of the applicant’s claim in the main suit and the interest still shown it would be injustice to shut the Applicant out without considering the merits of its claim. Administration of justice requires that all substances of disputes shall be heard and decided on merit. In view of all the above I am inclined to allow this application. Therefore, the dismissal order in Civil Suit No 901. of 2004 is set aside and the suit re-instated for hearing inter parties. The order as to costs in the main suit shall bind the costs of this application.
Hon. Mr. Justice Lameck N. Mukasa
7th December 2007