THE REPUBLIC OF U GANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 362 OF 2010
PINNACLE PROJECTS LTD:::::::::::::::::: APPLICANT/DEFENDANT
BUSINESS IN MOTION
CONSULTANTS LTD:::::::::::::::::::::: RESPONDENT/PLAINTIFF
BEFORE: LADY JUSTICE HELLEN OBURA.
b) cost of the application be provided for.
The grounds relied upon in bringing this application are that:
c) It is just that the said decree be set aside.
The application is supported by an affidavit of Mr. Peter Mugimba, an advocate in the law firm of M/S Mugimba & Tibesigwa Advocates, who are counsel for the applicant.
A brief background of this application is that on the 19th May 2010 M/s Business in Motions Ltd filed a summary suit against Pinnacle Projects Ltd under O.36 rr 1&2 of the CPR for recovery of a sum of US$200,000 arising out of breach of contract and costs of the suit.
The basis of the claim is that the respondent provided consultancy services to the applicant related to project solicitation to strengthen its bid for the development, on a turnkey basis, of one hundred residential villas for sale. The invitation to tender was by Uganda Broadcasting Corporation (UBC) that wanted the villas constructed on its land at Bugolobi comprised in FRV 21 Folio 11. The applicant was the successful bidder.
On that basis the applicant and the respondent signed a Memorandum of Understanding (MOU) wherein a contract sum of US$200,000 was to be paid to the respondent within three months from the date of ground breaking. The respondent claims that although the ground breaking took place on 12/11/2009 and work on the site was progressing, the applicant has never paid or made any arrangements for payment of the said sum. The respondent through its lawyers reminded the applicant several times to pay but the latter ignored giving rise to the suit.
After filing the suit, summons in summary suit on plaint was taken out on 20/5/2010 and served on the defendant on the 26th May 2010 (as per the affidavit of service sworn by Mr. Richard Etayu, a process server working in the law firm of M/S. Kyazze and Company Advocates, Legal Consultants). Affidavit of the process server is on the record.
Upon realizing that no application for unconditional leave was filed by 8th June 2010, counsel for the respondent wrote to the Registrar, High Court, Commercial Division praying that a default judgment be entered against the applicant under O. 36 r.3(2) of the CPR for payment of US$200,000 and costs of the suit . The Registrar duly entered default judgment as requested on the 8th June, 2010.
On 23rd June 2010, counsel for the respondent forwarded to the Registrar a bill of costs to be taxed ex parte but no action has been taken since then.
Prior to that date, on the 16th of June 2010 the applicant filed this application seeking for orders earlier stated in this ruling. On the same day, counsel for the applicant wrote to the Registrar, High Court, Civil Division informing him that Miscellaneous Application No. 231 of 2010 Pinnacle Projects Ltd vs. Business in Motion Consultants Ltd was by mistake filed in the Civil Registry instead of the Commercial Registry where the main suit (HCCS No. 182 of 2010) was filed. He requested the Registrar to transfer the said application that was filed on 7/6/2010 to the Commercial Registry.
The file was subsequently transferred and received at the High Court Commercial Division Registry on the 23/6/2010. It was allocated a new number as Misc. Application No. 387 of 2010.
2) Whether the said application was filed in time.
He submitted that the applicant was not coming with clean hands to seek justice from this court by lying and hiding under the guise of confusion by the Court Registry. He prayed that court to strikes out the affidavit because it is tainted with falsehood. He relied on the case of Bigways Construction (U) Ltd HCT-00-CC MA 0832-2005  UG Commercial Court 83 to buttress his prayer.
Paragraph three of that affidavit states as follows:
I do not find any falsehood in this paragraph as alleged by counsel for the respondent. The deponent stated the fact that the firm filed application No. 231 of 2010 without specifying the division or court where it was filed. I therefore do not agree with counsel that it contains falsehood and should be struck out.
I now turn to consider the merit of this application.
In the instant case, effective service of sermons is not being contested. The applicant is relying on “good cause” to have the decree set aside as stated in paragraph five of the affidavit in support of this application. It thus states;
The phrase “good cause” is not defined under the Rules but it is defined in Black’s Law Dictionary, Seventh Edition, as; “a legally sufficient reason”.
In the cases of: Mugo v Wanjiri  EA 481 at page 483. Njagi v Munyiri EA 179 at page 180 and Rosette Kizito v Administrator General and Others [Supreme Court Civil Application No. 9/86 reported in Kampala Law Report Volume 5 of 1993 at page 4] it was held that sufficient reason must relate to the inability or failure to take the particular step in time.
In Nicholas Roussos vs Gulamhussein Habib Virani & Another, Civil Appeal No.9 of 1993 (SC) (unreported), the Supreme Court attempted to lay down some of the grounds or circumstances which may amount to sufficient cause. They include mistake by an advocate though negligent, ignorance of procedure by an unrepresented defendant and illness by a party.
Counsel for the respondent on the other hand, submitted and rightly so in my view, that O. 36 r 3(1) requires the defendant who is served with summons under O. 36 to apply for leave to appear and defend in the same court where the main suit is pending. He submitted emphatically that the application has to be made within ten days from the date of service since time is of the essence as was held in the case of Republic Motors Ltd-Vs-Atlantic Decorators and General Construction  HCB 104.
He pointed out that the main suit (HCCS No. 182 of 2010) was filed at the Commercial Division as indicated in the title (heading) of the summary plaint and summons in summary suit on plaint which was served on the applicant.
He therefore wondered why counsel for the applicant chose to file the application for leave to appear and defend at the Civil Registry.
He submitted that this court could only be aware of the application if it was filed before it. He further submitted that on the 8/6/2010 when judgment was entered there was no pending application before this Court and so it cannot be faulted for entering judgment accordingly.
I wholly agree with the submission of counsel for the respondent that the heading of the plaint and the summons in summary suit on plaint indicated quite clearly that HCCS No. 182 of 2010 from which Misc. Application. No. 231 of 2010 arises was filed at the Commercial Division. The contention by counsel for the applicant that he was misled by a clerk in the Commercial Registry is not convincing at all given that he is a very senior advocate who knows the procedures and operations of court. Counsel for the applicant owned up to his mistake in his letter to the Registrar Civil Division, where he stated as follows:
His specific request that the application be transferred to the Commercial Registry defeats his argument that there was nothing irregular with filing the application at the Civil Registry. This mistake which I find so negligent and careless cannot be treated as a mere technicality particularly in view of the fact that this is a summary suit where time is of the essence. Counsel could not afford to carelessly gamble with choice of where to file the application when it was relating to a summary suit that was clearly filed at the Commercial Division. No wonder, this mistake was quite costly for his client because a decree was passed without any knowledge that the application was lying at the Civil Registry.
The transfer was effected on the 23rd June 2010 two weeks after the decree was passed and it was received at the Commercial Registry and registered afresh as Misc. Application. No. 387 of 2010. This in my view strengthens counsel for the respondent’s argument that on the 8th June, 2010 when judgment was entered there was no pending application before this Court and so it cannot be faulted for entering judgment accordingly.
In the circumstances, I find that Misc. Application. No. 231 was not properly filed at the High Court Civil Registry when the main suit under which the application was brought was at the Commercial Division. Issue number one is therefore answered in the negative.
I would have been persuaded by counsel for the applicant’s argument that, there is only one High Court in Uganda and therefore filing in any division is not fatal, if the division where the main suit was filed was not clearly indicated both on the plaint and the summons. In that case I would have perhaps found otherwise. My finding would have also been different if he was just “instituting a suit” and not making an application arising from an existing suit.
However, the above finding notwithstanding, I am aware that the mistake was occasioned by counsel for the applicant and the law has now been settled that mistakes of counsel however negligent cannot be visited on the litigant. There are many authorities to that effect that bind this court.
In Banco Arabe Espanol vs. Bank of Uganda SCCA No. 8/1998 [1997-2001] UCL 1, it was held that, “the present case was one where the error by counsel for the appellant need not be visited on the appellant, and the circumstances amounted to sufficient cause for the purpose of setting aside dismissal of the suit”.
In that case, Oder, JSC (RIP), while giving the background to the development of this principle had this to say;
I am of the view that the circumstances of the instant case is one where this principle can be applied and for that reason I would find that the mistake of counsel is “good cause” for setting aside the decree. However, this is on condition that issue number two is answered in the affirmative, that is, if Misc. Application No. 231 of 2010 was filed in time.
He faulted the Commercial Registry for not bringing to the attention of the Registrar the receipt, which in his view, would have put the Registrar on notice that there is a pending application for leave to appear and defend.
Counsel for the applicant invited court to take judicial notice of the new system of lodging documents in court which is different and more time consuming than the old system where fees was paid directly to court as opposed to the bank. He pointed out that assessment of the prescribed fees is done by cash office and the Registry only receives the documents after payment of court fees.
I consulted the O/C Registry on the procedure of filing documents and he confirmed that assessment is done by the cashier. He informed me that the documents are lodged at the registry for filing after payment of the fees whereupon the document itself is embossed and the back of the file stamped. That the amount paid, the receipt number, and the date of filing are indicated at the back of the file.
I have looked at the back of the file for Misc. Application No. 231 of 2010 (MA. No. 387/10) and indeed it bears a stamp with Receipt No. 4366561and amount of 1,800=, and the date of filing is indicated as 7/06/10. It also bears the signature of the clerk who received the document.
Counsel for the applicant argued in the alternative that even if court was to hold that the application was not filed when court fees was paid, it was still filed in time on 7/6/2010 because the ten days lapsed on 8/6/2010.
With due respect, I disagree with the argument of counsel for the applicant that filing a receipt for fees paid in respect of a document amounts to filing the document itself. The filing procedure as explained above does not support his argument. What in effect would one be filing, the document or the receipt? It is common knowledge that a receipt is just evidence of payment which in the case of documents filed in court, must be attached to prove payment of the prescribed fees and I believe it serves no other purpose other than that. Counsel has not explained why he chose to file the receipt (if at all he filed it) without the documents. I therefore find it very difficult to believe his story.
Counsel has grossly misrepresented the principle in UNTA EXPORTS LTD-VS- CUSTOMS (supra) which he cited to fortify his argument. That case is distinguishable from the instant case and the circumstances in which the principle was stated must be understood in its context. In that case, the plaint was lodged in the registry for filing on the 14th September 1968 and the court fees were paid on the 16th September 1968 which was already out of time.
Goudie, J observed at page 649 that;
I am of the considered opinion that the principle in the UNTA EXPORT case (supra) does not in any way suggest that payment of fees and filing the receipt without the document to be filed is proper filing. I believe even if the Registry staff had brought the receipt in the instant case ( if at all it was filed) to the attention of the Registrar it would have been of no consequence because it is not an application for leave to appear and defend as stipulated under O.36 r.4 of the CPR.
I am persuaded by the decision in the case of Uganda Commercial Bank vs. Abaasi Kibirige & Another, Civil Appeal No. 59 of 1991 (Unreported) where the defendants while seeking leave to appear and defend, filed a notice of motion under O33r11 ( current O.36 r.11) without a supporting affidavit. It was held that there was no application filed which met the requirements and the Registrar was right to ignore it and enter judgment in favour of the plaintiff.
For the reasons stated above, I find no merit in counsel’s argument and I rule that Misc. Application. No. 231 of 2010 was not filed on the 4th June 2010. This then leads me to consider the alternative argument advanced by counsel that, even if court was to hold that the application was not filed when court fees was paid, that is, on 4/6/2010, it was still filed in time on 7/6/2010 because the ten days lapsed on 8/6/2010 and not on 5th June as submitted by counsel for the respondent.
In dealing with this issue, there is need to determine when time starts running.
Counsel for the applicant referred court to O. 51 r.8 as the guide in computing the ten days prescribed in the summons that was served on the applicant. He argued that the day the service was effected and the last day should be excluded.
With respect, I disagree with counsel on this point and I do not find the relevance of O.51r. 8 since the summons in Form 4 of Appendix A of the CPR that was served on the applicant on the 26th May 2010 clearly stated that;
The number of days and when it starts running were clearly stated in the summons and therefore there is no need to be guided by O.51 r.8 which clearly states the instances when it is applied.
In the case of Robert Byaruhanga vs. Rukungiri District Administration Mbarara HCCS No. 407 of 1989 (unreported), where the judgment of the taxing officer which was being appealed against was to be made within 30 days in accordance with S. 61 (1) of the Advocates 1970 (Act. 22) 1970 (now Cap 267 of the Laws of Uganda) Mukanza J, held that the thirty days ran from 19th November 1992 (when judgment of the taxing officer was delivered) to 18th December instant.
Basing on what was stated on the summons as quoted above, and the above authority, it follows that, time in the instant case started running on the 26th May, 2010 when the summons in summary suit on plaint was served on the applicant and it lapsed on the 4th of June 2010.
Before I make my final decision in this case, I wish to refer to the condition that I gave in conclusion of my finding on issue number one. I stated that if issue number two was answered in the affirmative, that is, if the application was filed in time, then I would allow this application because the law is now settled that the mistake of counsel however negligent cannot be visited on the litigant. Unfortunately, the applicant cannot take advantage of this settled principle of law because the application was filed out of time for the reasons stated above. In the result, I would dismiss this application with cost to the respondent.
Hellen Obura (Mrs.)
Ruling delivered in open court in the presence of
2. Mr. Joseph Kyazze for the respondent
3. Ms. Ruth Naisamula Court Clerk