THE REPUBLIC OF UGANDA
IN THE HIGH COPURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
MISCELLANEOUS APPLICATION NO 167 OF 2011
(Arising out of Civil Suit No. 311 of 2008)
2. ROSE SENGENDO}:::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS/PLAINTIFFS
2. MUSITWA JOSEPH}
T/a Muganwa, Nanteza & Co. Advocates}::::::::::: RESPONDENTS/DEFENDANTS
BEFORE THE HON. LADY JUSTICE HELLEN OBURA
This application was brought by notice of motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 9 rule 23 and Order 52 rules 1 & 2 of the Civil Procedure Rules (CPR). The applicant is seeking for orders that the Order dismissing Civil Suit No. 311 of 2008 be set aside and the suit be reinstated and costs of the application be provided for. The application is supported by an affidavit sworn by the 2nd applicant/plaintiff Ms. Rose Sengendo on the 1st April 2011.
The brief grounds as contained in both the notice of motion and the affidavit in support are;
That on the
That after getting some relief from the stomach problem the2nd applicant rushed to court at 10.45 am only to find that the suit had been dismissed. Further that the 2nd applicant had been following up the case keenly and even reminded the respondents about the hearing date an indication that she was intending to attend court that morning but was prevented by the sudden stomach problem. The deponent concluded that it was in the interest of justice that this application be granted so that the main suit could be heard on merit.
An affidavit in reply was sworn by Ms. Grace Nanteza an advocate practising with M/S Muganwa, Nanteza & Co. Advocates. She deponed that on10th March, 2011 when the suit was dismissed the applicants had not informed court about their absence. Further that the matter in dispute in H.C.C.S. No. 311 of 2008 had already been resolved by the Law Council. A settlement before the Law Council was attached as “AA1”.
She further deposed that the issue regarding books of accounts had to be sorted out with the auditors of the late Sengendo. That the notice of change of particulars registered filed by the1st applicant on 30th April 2008 was against the law. A copy of the notice was attached as “BB2”.
The affidavit in rejoinder was sworn by the2nd applicant. She reiterated the averment in the affidavit in support that a letter requesting the matter to be stood over was written to court and duly received on 10th March 2011. She attached a copy of the said letter bearing court stamp as annexture “A”. She stated that the issues raised in paragraphs 5, 6 and 7 of the affidavit in reply touched on the merits of the case and do not relate to this application.
The facts giving rise to this application are that the late Sengendo who was the sole proprietor of the firm of M/s Sengendo & Co. Advocates and father to the plaintiffs passed away on the26th May 2006. The 1st defendant was a Legal Associate/Assistant in his firm while the 2nd defendant was the Law/Filing Clerk. The first plaintiff is the sole executor/administrator of the estate of the late Sengendo. A dispute arose between the plaintiffs on the one hand and the defendants on the other hand over the management of the law firm particularly in respect to the assets (inclusive of use of the trade name, websites, legal materials, publications and good will) and clients.
As stated in the affidavit in reply, it appears the matter was handled by the Law Council which intervened and tried to resolve the dispute. About the same time, the plaintiffs also filed HCCS No. 311 of 2008 where they prayed for judgment and thirteen reliefs namely:-
b. An Order to compel the defendants to surrender to the office of the Executor books of accounts of Sengendo &Co Advocates as at May 26, 2007, including all the debts and credits;
c. An Order to refrain the defendants from claiming credits that should accrue to the office of the Executor;
d. An Order to deliver up any credits so far claimed by the defendants in the names of Sengendo & Co. Advocates that should have accrued to the Office of the Executor;
e. An Order to pay reparations for the loss and damage negligently and willfully occasioned to the estate of the late Sengendo &Co Advocates;
f. A Permanent Injunction restraining the defendants from fraudulently passing themselves off as ‘formerly Sengendo’ and from occasioning further damage to the plaintiffs;
g. An Order to compel the defendants to surrender all property belonging to Sengendo &Co. Advocates;
h. An Order to compel the defendants to clear the debts incurred in the names of Sengendo & Co. Advocates and so clear Sengendo & Co. Advocates good name;
i. An order of discovery from the defendants bank statements by the defendants in the names of Sengendo &Co. Advocates to enable the plaintiffs claim their special damages;
j. An order to stop the defendants from fraudulently deceiving Sengendo & Co. Advocates’ clientele that they are ’formerly Sengendo’;
k. An Order to stop the defendants from using the second plaintiff’s Law Firm’s Cable “PATRAMAR” For the deceit it carried with it that they have dealings with Sengendo & Co. Advocates;
l. An order to stop the defendants from defaming the name of Sengendo & Co. Advocates;
m. General damages for all the financial loss, loss of time and inconvenience occasioned by the defendants’ fraudulent acts, costs of the suit and any other just relief”.
On the 10th April, 2011 when that suit was called on, the plaintiffs and their counsel were absent and upon an application for dismissal by counsel for the defendants, it was dismissed under Order 9 rule 22 of the Civil Procedure Rules. The applicants then filed this application seeking for the orders already stated above.
He submitted that counsel’s inability to attend court because of his engagement upcountry and the 2nd plaintiff’s illness were sufficient cause that prevented them from attending court. He further submitted that grant of this application would not be prejudicial to the respondents and it was in the interest of justice that the application is granted and the suit heard and determined on its merits thereby addressing all the matters in controversy and avoiding multiplicity of legal proceedings.
He prayed that the application be granted by setting aside the order of dismissal and reinstating the suit. He also prayed that cost of this application be granted to the applicants.
Counsel for the respondents opposed this application on three main grounds. Firstly, that the reasons given for non-appearance of counsel and the 2nd plaintiff when the suit was called were mere assertions that were not supported by evidence. He contended that Counsel for the applicants should have deponed an affidavit stating particulars of the case and the court where he was appearing. He further contended that a copy of the letter allegedly written to court on the instruction of the 2nd plaintiff was not attached to the application as alleged but even when it was later attached to the affidavit in rejoinder it was not sealed in accordance with Rule 8 of the Schedule to The Commissioner for Oaths (Advocates) Act, Cap 5.
Secondly, that the 2nd applicant’s dilatory conduct in filing this application twenty days after the suit was dismissed should be considered to dismiss this application.
Thirdly, that H.C.C.S. No. 311 of 2008 did not have any likelihood of success because it disclosed a number of illegalities. Counsel raised a number of issues and delved so deeply into the merits of that suit.
The salient points in the rejoinder by counsel for the applicants were that the applicants had met the tests of sufficient cause in accordance with Order 9 rule 23 and as per the case of Lucas Marisa v. Uganda Breweries Ltd (1988-1990) HCB 131 at 132. Further that it was not necessary for Dr. Onoria to depone an affidavit giving particulars of the case and court where he was appearing because he had already made an arrangement with the 2nd defendant who was to appear in court on that day. I agree with this argument because the 2nd applicant is an advocate in her own right and her appearance alone would have been sufficient particularly in view of the fact that prior arrangement had been made to that effect.
The alleged dilatory conduct was also explained in that while the suit was dismissed on 10th March 2011 the applicant acted diligently by filing an application to set aside the order of dismissal on 1st April 2011 barely a month after and the same was set down for hearing on 16th May 2011. I have not come across any authority that prescribes the period within which an application of this nature should be made beyond which a party’s conduct would be described as dilatory. However, in Lucas Marisa v. Uganda Breweries Ltd (supra), it was held that;
“This application would also be dismissed on the ground of the applicant/plaintiff’s delay in bringing this application and setting it down for hearing. Although the rules do not provide for a time limit the application to set aside an order of dismissal must be brought within reasonable time. The plaintiff/applicant had to wait for over one year and some months to file his application and almost another year to set it down for hearing. All this went to show that the applicant and his counsel were not serious.” (emphasis added).
Waiting for over one year in that case was definitely dilatory conduct but the twenty days in this case would not in my humble view amount to dilatory conduct.
On the likelihood of success of the case raised in the respondents’ submission, counsel submitted that those were issues of merit that this court could only determine upon hearing both parties in the main suit and therefore were not necessary for determining this application. I completely agree with this view because the in-depth submission on the merit of the case was not necessary for purposes of arguing this application. I was not at all impressed by that line of argument and so I would not address the issues raised therein in this ruling save for looking at the nature of the case as case law authority suggest.
As submitted by counsel for the applicant, Order 9 rule 23 under which this application was made requires the applicant to satisfy the court that there was sufficient cause for non appearance when the suit was called on for hearing. Once sufficient cause is shown to the satisfaction of the Court, there is no discretion given to court over the matter. An order setting aside the dismissal upon such terms as to costs or otherwise as the court thinks fit must be made.
“The main test for reinstatement 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….” (Emphasis added).
That ruling was followed in Nakiride v Hotel International Ltd  85 where Kalanda A. J. (as he then was) held that;
“In considering whether there was sufficient cause why counsel for the applicant did not appear in Court on the date the application was dismissed, the test to be applied in cases of that nature was whether under the circumstances the party applying honestly intended to be present at the hearing and did his best to attend. It was also important for the litigant to show diligence in the matter.”
Court then concluded that, “from the affidavits from the applicant’s, it was clear that counsel did his best to appear in court but was prevented by illness. The son of the applicant did in fact come to court and that showed diligence on the part of the applicant.”
The issue for determination in this application is whether the applicants have shown sufficient cause to warrant grant of this application. I will also apply the above tests in dealing with this issue. It was submitted for the applicants that counsel for the applicants was handling another matter upcountry and therefore arrangements were made for the 2nd applicant to appear on the day the suit was dismissed. That the 2nd applicant who was ready to appear in court that morning was prevented by sickness and efforts were made to inform court to stand over the matter until 11.00 am. That when the 2nd applicant felt better she came to court at 10.45 am only to find the suit already dismissed.
The court registry was faulted for not bringing the letter to court’s attention but even if it was brought to court’s attention what difference would it have made. I wish to comment generally on the common practice of advocates writing letters to court either to seek an adjournment or for a matter to be stood over. It is now trite law that matters before court cannot be adjourned by letter. A letter should be handed over to an advocate with instruction to hold brief and apply for an adjournment. I am of the view that where counsel requires a matter to be stood over, similarly he/she should instruct another counsel to apply to court accordingly other than sending a letter which may not serve any useful purpose as it was clearly shown in this case.
I appreciate that in the instant case the sudden sickness of the 2nd applicant shortly before leaving for court was an emergency, I believe prudence and courtesy still demand that the letter should have been handed over to any advocate who was in court or even to the 1st respondent with instructions to apply for the matter to be stood over. The current situation that keeps taking court back and forth over the same matter and creating false completion rate of cases would have been avoided. My emphasis is on prudence and courtesy which in my opinion based on experience is wanting amongst many advocates.
The chronology of events as narrated in the affidavits of the 2nd applicant has sufficiently demonstrated her intention to be in court that morning and the effort she made to appear. Unfortunately, she was prevented by the sudden sickness which was unforeseeable and beyond her control. This in my considered opinion passes the tests stated in National Insurance Corporation v Mugenyi and Company Advocates (supra) and Nakiride v Hotel International Ltd (supra). In the circumstances, I would agree with counsel for the applicant that sufficient cause to warrant grant of this application has been shown.
Taking the circumstances of this application in its totality, this court is satisfied that sufficient cause that warrants reinstatement of HCCS No. 311 of 2008 so that the same is heard and determined on merit has been shown. In the end result, I order that the Order dismissing H.C.C.S. No. 311 of 2008 be and is hereby set aside and the suit is accordingly reinstated. The cost of this application is awarded to the defendants.
I so order.
Ms. Ruth Naisamula- Court Clerk