THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 726 OF 2011
(ARISING FROM MISCELLANEOUS APPLICATION NO. 24 OF 2011)
(ARISING FROM H.C.C.S. NO. 497 OF 2004)
1. HUSSEIN NSUBUGA MPOME
2. BABI STEVEN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS
ADMINISTRATORS OF THE ESTATE OF THE LATE
GLADYS NDAGIRE FAAKA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS
BEFORE THE HON. LADY JUSTICE HELLEN OBURA
This application was brought under Order 9 rule 23 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules (CPR). The applicants are seeking for orders that the dismissal of Miscellaneous Application No. 24 of 2011 be set aside and the application restored for hearing on merit and costs of this application be provided for.
The application is supported by an affidavit sworn by Mr. Denis Byaruhanga counsel for the applicants on 13th December 2011 and a further affidavit in support sworn by Mr. Steven Babi, the 2nd applicant on the same day.
The brief grounds of this application as contained in the Notice of Motion and both affidavits in support are that when Miscellaneous Application No. 24 of 2011 was called on for hearing on 7th December 2011, counsel for the applicants was appearing before Hon. Justice Madrama in HCCS No. 117 of 2008, Xavier Tibenderana v Attorney General which had been called first. Further that the applicants whom counsel had called and informed to be present in court to stand over the matter when it was called did not understand counsel’s instructions and instead remained waiting for him outside Justice Madrama’s court and consequently, the matter was dismissed for want of prosecution.
An affidavit in opposition of this application was sworn by Ms. Namugenyi Harriet Makumbi one of the administrators of the estate of the late Gladys Ndagire Faaka (respondents) on 20th January 2012. She deposed that she was advised by their lawyer that if counsel for the applicants had wanted Miscellaneous Application No. 24 of 2011 to be stood over on the day it was dismissed, the proper step to take would have been to liaise with counsel for the respondents who were present at the court. Further that the applicants and their counsels had on many occasions acted without diligence, failed to honour their word to court, defied court orders and employed diverse tactics to delay or hold back disposal of the matter in issue. She concluded that the attitude of the applicants and their counsels towards the matter before the court was regrettable, appalling, deplorable, and vicious and should not be given a new lease of life.
At the hearing of this application, the applicants were represented by Mr. Denis Byaruhanga and the respondents by Mr. Peter Allan Musoke. Mr. Byaruhanga in his brief submission relied on the grounds stated in the affidavits in support and submitted that when Miscellaneous Application No. 24 of 2011 came up for hearing and was dismissed for want of prosecution, he had another matter before Justice Madrama which had been called first. Further that he had called the applicants and informed them to be present and stand over the matter when it was called. He contended that he had also found counsel for the respondents outside court and informed him that his clients were coming to have the matter stood over. He submitted that his clients did not understand his instructions so they stood outside Justice Madrama’s court waiting for him and by the time he finalized the case he was conducting the matter had already been dismissed for want of prosecution.
He concluded that those grounds constituted sufficient cause and prayed that this application be allowed and costs be in the cause.
Mr. Musoke for the respondents based his submission on the affidavit in opposition to this application. He first of all refuted counsel for the applicants’ contention that he had informed counsel for the respondents that his clients would be coming to have the matter stood over. He argued that counsel was just taking advantage of the absence of Senior Counsel Mr. G. S. Lule to make that allegation. He contended that the further affidavit in support was very suspicious as it sworn by Mr. Babi Stephen who had never appeared in this court.
He also contended that Mr. Babi in paragraph 3 of his affidavit did not associate himself with the contents of paragraph 4 of Mr. Byaruhanga’s affidavit where he deposed that his clients did not understand his instructions. He argued that it was speculative for counsel to tell court that his clients did not understand his instruction when Mr. Babi one of the clients alleged not to have understood the instructions did not associate himself with that averment.
As regards the ground of this application, he argued that even if counsel had a matter before Justice Madrama, the application before this court would have taken priority because of the seniority of counsel for the respondent Mr. G.S Lule since the Attorney General was not appearing in person in that other matter.
He referred to what was deposed in paragraphs 4 and 5 of the affidavit in opposition and submitted that firstly, the applicants and their counsel had earlier on 12th September 2011undertaken to take the respondents and their counsel to where the 2nd applicant laid bedridden before the 7th December 2011 when the matter came up and was dismissed. Further that the applicants’ counsel did not at any one time write to counsel for the respondent to inform them of their inability to do so.
Secondly, he submitted that counsel and his clients have time and again told this court that they were willing to negotiate with a view of amicable settlement. To that end, whichever date they proposed the respondents and their counsel accepted to no avail. He prayed that this application be denied.
Without prejudice to the foregoing submission, counsel submitted that if this court felt inclined to grant this application then it should be conditional upon a deposit of Shs. 20,000,000/= in court within a specified period of time. He argued that the suit property was of a higher value than the Shs. 10,000,000/= it was valued at when it was sold because it was a commercial property located at Bwaise Trading Centre.
He prayed for costs of the application and that in the event that the application is dismissed this file be forwarded to the execution division.
Mr.Byaruhanga in a brief rejoinder reiterated his earlier submission that he had talked to Senior Counsel Mr. G.S Lule about his other matter before Justice Madrama and informed him that the applicants were on the way to attend court and have the matter stood over.
On the contention that Mr. Babi Steven did not associate himself with the content of paragraph 4 of his affidavit, counsel submitted that Mr. Babi Steven associated himself with paragraph 6 of his affidavit where he had stated that his clients informed him that they had not understood his instructions.
On the allegations that counsel and his clients had defied court orders, he submitted that apart from his failure to write to counsel for the respondents to propose a settlement, the allegation was not true.
He contended that the prayer that if this court was inclined to grant this application it should be conditional upon deposit of shs.20,000,000= was not sustainable because this is not an application for stay of execution. He argued that counsel for the respondent had not shown sufficient grounds to warrant granting of prayer for Shs. 20,000,000 to be deposited in Court. He observed that if such orders were to be made in such applications then poor litigants would be prevented from accessing courts of law.
He reiterated his prayer that this application be granted and costs be in the cause.
Order 9 rule 23 under which this application was brought empowers court to make an order setting aside the dismissal of a suit upon such terms as to costs or otherwise as the court thinks fit. However, the applicant must first satisfy the court that there was sufficient cause for non appearance when the suit was called on for hearing.
Courts have held that sufficient reason must relate to the inability or failure to take the particular step in time. See Mugo v Wanjiri  EA 481 at page 483, Njagi v Munyiri EA 179 at page 180 andRosette Kizito v Administrator General and Others [Supreme Court Civil Application No. 9/86reported inKampala Law Report Volume 5 of 1993 at page 4].
The Supreme Courtin Nicholas Roussos vs Gulam Hussein Habib Virani & Another, Civil Appeal No.9 of 1993 (SC)(unreported), held that some of the grounds or circumstances which may amount to sufficient cause include mistake by an advocate though negligent, ignorance of procedure by an unrepresented defendant and illness by a party.
In National Insurance Corporation v Mugenyi and Company Advocates  HCB 28 the Court of Appeal held that;
“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 decision was followed by in Nakiride v Hotel International Ltd  HCB 85 where it 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…” (Emphasis added).
The only issue for determination in this application is whether the applicants have shown sufficient cause to warrant grant of this application. Counsel for the applicants’ submitted that the fact that he was handling another matter before another judge and the applicants’ failure to appear and have the matter stood over because they did not understand his instructions was sufficient cause.
However, counsel for the respondents submitted that if indeed counsel for the applicants wanted to have this matter stood over he would have informed counsel for the respondents accordingly. He also observed that the applicants and their counsel had conducted themselves in a manner that delayed disposal of the ill-fated application.
I agree with counsel’s submission and observation. Counsel for the applicants ought to have adopted the best practice of informing the opposite counsel to stand over the matter if he had genuine reasons for doing so. His failure to use that professional and prudent way of conducting court business yielded the result it did.
I also find it irresponsible for counsel to fix two cases in different courts at the same time. This practice must be discouraged because in most cases it leads to unwarranted adjournments. I am of the view that if courts were to hold that counsel’s choice to appear in one court in preference to another without making a proper arrangement for the other matter to be stood over is sufficient cause for setting aside a dismissal of a suitor an application like this one, it would amount to condoning irresponsible conduct of some advocates. I reckon this would also be thoroughly abused just the way the principle that mistake of counsel should not be visited on litigants is currently being abused by some advocates who deliberately fail to take the necessary actions.
For the above reason, I am not quite convinced that the ground for this application is sufficient cause. However, just in case I am wrong, before I make my final conclusion on the fate of this application, I will also take into account the nature of the case being one of the tests stated in National Insurance Corporation v Mugenyi and Company Advocates (supra). Similarly, I will review the history of this case to assess the diligence of the applicants in view of the decision in Nakiride v Hotel International Ltd (supra) which I find persuasive. The conclusion in the decision in that case was that it was also important for the litigant to show diligence in the matter.
I will start with the history of this case which is as follows. Miscellaneous Application No. 24 of 2011 was filed on the 13th January 2011 and fixed for hearing on 14th March 2011. The application was received by one Nabende Jonathan a clerk to the applicants’ counsel on the 22nd February 2011 (as per the acknowledgment on the court copy of the notice of motion). I believe it was received for onward service on the respondents.
There is no affidavit of service on record to show when this application was actually served on the respondents but according to the letter of from the respondent’s counsel dated 18th March 2011, by then the respondents had not yet been served. This letter was written after the hearing date of 14th March 2011 which turned out to be a day for mayoral election so court did not sit. I believe the respondents could have been served after 18th March 2011 and that is why an affidavit in opposition to that application was filed on 31st March 2011.
On 6th June 2011, the matter came before me for hearing and Mr. Byaruhanga Denis informed court that he was holding brief for Mr. Obed Mwebesa who was handling an election petition in Mbarara before Justice Vincent Zehurikize. He stated that he was ill-prepared to handle the application that day and requested that if he was given a short adjournment he would be able to proceed on the next hearing date.
Counsel for the respondents opposed the application for adjournment and submitted that there was need to schedule that application and call oral evidence in view of the fact that fraud was alleged. This court was inclined to grant an adjournment since counsel for the applicants could not respond to the submission there and then. The matter was adjourned to 27th June 2011 to enable counsel for the plaintiff to prepare a response.
On the 27th June 2011 the matter could not proceed because this court had an abrupt important meeting to attend so it was adjourned to 8th July 2011. On that day of adjourned hearing, counsel for the applicants in his brief response to the submission of counsel for the respondent agreed with the submission of counsel for the respondents that the application be set down for a full hearing where oral evidence would be called. He then prayed for an adjournment on the ground that he had just taken over conduct of the case and due to his engagement in the election petitions he had not contacted his clients to explore an amicable settlement of the dispute between the parties.
Counsel for the respondents conceded to that prayer and by consent the matter was adjourned to 7th September 2011 for scheduling. Both counsels were directed to file a joint scheduling memorandum.
On 7th September 2011, when the application was called on for scheduling, counsel for the applicants again applied for an adjournment on the ground that he was not feeling well. The joint scheduling memorandum had not even been filed. Senior Counsel Mr. G.S. Lule for the respondents conceded to the prayer for adjournment on the ground that the reason was genuine. Court then granted a very short adjournment to 12th September 2011 and directed the parties to file a joint scheduling memorandum by 9th September 2011.
On 12th September 2011, counsel for the applicants reported that the 2nd applicant Mr. Babi Steven was indisposed and informed court that a one Mr. Lawrence Mwanga who was in possession of the suit land was in court and wished to be made a party to the application. Counsel intimated that he would seek an adjournment to enable him make a formal application to add Mr. Mwanga as a party to the application.
Counsel for the respondents pointed out that there was no need to make a formal application to add Mr. Mwanga. He encouraged counsel for the applicants to make an oral application which he would not oppose because he had no objection to Mr. Mwanga being added as a party. Counsel for the respondents also raised issues to do with Mr. Steven Babi’s existence and submitted that his clients suspected that he was a fictitious person and that suspicion was strengthened by the fact that Mr. Babi had never appeared in court.
It was contended by counsel for the applicants that Mr. Mwanga knew the where-about of Mr. Babi and on that basis court suggested that Mr. Mwanga should take the respondents and one of the lawyers in their counsel’s chamber to the place where Mr. Babi was. Both counsels agreed with that proposal and 7th October 2011 was set as the date for locating Mr. Babi so that the suspicion could be put to rest. Counsel for the applicants was to coordinate that mission.
The parties and their counsels also expressed willingness to hold discussions with a view of reaching an amicable settlement. The matter was then adjourned to 20th October 2011 for mention so as to enable the parties locate Mr. Babi and hold discussions.
On 20th October 2011 I was indisposed so the matter could not be mentioned. The matter was fixed for 7th December 2011 and a hearing notice was served on counsel for the applicants by counsel for the respondents as per the affidavit of service sworn by a clerk from that law firm.
On 7th December 2011 when the matter was called on, counsel for the applicants and his clients were absent. Counsel for the respondents reported that the applicants and their counsel had not complied with any of the directives given by this court following their own undertakings. He referred court to a letter he had written to counsel for the applicants on 10th November 2011 to remind them about the need to comply with the directives before the next hearing date. There was no response by counsel for the applicants and no action was taken.
Counsel then submitted that by that conduct, it would appear that the applicants had no interest in pursuing that application. He prayed that the application be dismissed with costs. This court granted that prayer after taking into account the history of that application and the conduct of the applicants and their counsels as highlighted above.
The fact that the applicants and their counsel did not appear on the day the application was dismissed was therefore no surprise to this court because of their previous conduct as seen from the checkered history of this case. This same court is now being asked to set aside the dismissal and reinstate the application. What guarantee does this court have that the same history will not repeat itself and the matter will continue clogging the system contrary to the objective of establishing the Commercial Division of the High Court?
According to direction 2 (2) of the Constitution (Commercial Court) (Practice) Directions S.I. Constitutional 6, the Commercial Court was established “to deliver to the commercial community an efficient, expeditious and cost effective mode of adjudicating disputes that affect directly and significantly the economic, commercial and financial life of Uganda”. (Emphasis added).
In order to achieve that objective court as well as both the litigants and their counsels have a big role to play. This court takes very serious view of counsels who file cases and keep seeking adjournments without looking at the cost implications and the wastage of court’s and the other party’s precious time. If there are to be any meaningful effort geared towards fighting the monster called case backlog such conduct should be least tolerated.
I bet that if the ill-fated application was not dismissed for non appearance of the applicants and their counsel, it would have still been dismissed at a later stage under direction 7 of the Constitution (Commercial Court) (Practice) Directions S.I. Constitutional 6. It was just a matter of time before this court’s patience would run out.
I now turn to consider the nature of this case. I have looked at the prayers in Miscellaneous Application No. 24 of 2011 as well as the proceedings in Miscellaneous Application No. 462 of 2010 against the background of Civil Suit No. 497 of 2004 from which they arise. Miscellaneous Application No. 24 of 2011 sought for orders that the ex parte decree obtained against the applicant in Miscellaneous Application No. 462 of 2010 be set aside/reviewed and costs of the application be provided for.
The grounds of that application were firstly, that counsel for the respondents (current applicants) by oversight recorded a wrong date and as such when the matter was called the application proceeded when the respondent was not represented. Secondly, that the second applicant did not have notice of the application and thirdly, that there was an error on the face of the record as court was misled to set aside the decree of court in H.C.C.S No. 497 of 2004 which was not possible.
A review of the records in Miscellaneous Application No. 462 of 2010 revealed that the application was filed by the current respondents on the 10th August 2010 and it was fixed for hearing on 8th September 2010. The affidavit of service of the notice of motion on record sworn by Mr. Ssebulime Willy a law clerk in the firm of M/S Godfrey.S. Lule Advocates on 6th September 2010 indicated that Mr. Mwebesa of M/S Niwagaba, Mwebesa & Co. Advocates declined to receive service on behalf of the 1st applicant and directed the clerk to Mr. Hussein Nsubuga Mpombe’s home so that he could effect service on him directly. According to that affidavit, the clerk went to Mr. Mpombe’s home and found his daughter who received service on his behalf. On the day of hearing of that application, Ms. Wanyama Sheila appeared and informed court that she was holding brief for Mr. Obed Mwebesa for the respondent. She sought an adjournment and it was granted. The matter was adjourned to 25th October 2010. I wish to note that counsel for the respondents had not even filed an affidavit in reply or notice of instructions in light of the fact that he had earlier declined to receive service on behalf of the respondents.
For some reason which was not recorded, it appears the application was not heard on 25th October 2010 but a hearing notice for 8th November 2010 was issued by the Registrar on that same day.
On 8th November 2010, Senior Counsel Mr. G.S. Lule appeared for the applicants and informed court that he could not see the respondent in court and yet he had been served through his daughter who signed on his behalf on 27th October 2010. He observed that counsel for the respondent had neither put in any appearance nor made any presentation although at one time a lawyer held brief for him. He prayed that the matter proceed ex parte and he was allowed to do so. I believe court must have allowed him to proceed ex parte after confirming that service was effected as stated.
Court then heard the submissions of counsel for the applicants and granted the application with orders that:-
“It is only fair that the taxation of costs proceedings and ruling in H.C.C.S No. 496 of 2004 be reviewed being a nullity; the execution proceeding are also reviewed by stay and costs of the application granted to the applicant”.
The ill-fated Miscellaneous Application No. 24 of 2011 that is sought to be reinstated by this application was seeking for orders to set aside the above orders.
The main suit from which all these applications arise was filed by the late Gladys Ndagire and a one Sebwaami Henry her son against Mr. Nsubuga Mpombe Hussein on 19th July 2004. The suit was heard and dismissed with costs by Egonda Ntende, J on 12th December 2005 on the grounds that the 1st plaintiff had not succeeded in proving the case she had put forward. According to the affidavit in support of Miscellaneous Application No. 462 of 2010, the 1st plaintiff passed away in December 2006 and the respondents in this application were granted letters of administration of her estate on 25th March 2008 (as per the letters of administration attached to that affidavit as annexture “GNI”).
Meanwhile, counsel for the defendant in H.C.C.S 497 of 2004 filed a bill of costs on 31st October 2008 and served the taxation hearing notice on M/S Katende Ssempebwa & Co Advocates who were on record as counsels for the plaintiffs. According to the affidavit of service sworn by one Omunyokol Joseph a process server in the firm of M/S Niwagaba & Mwebesa Advocates on 15th December 2008, a secretary in the firm of M/S Katende Ssempebwa & Co Advocates received the notice together with a copy for acknowledgment which was returned to him after two days without an acknowledgment.
On the basis of that affidavit, the taxation hearing proceeded ex parte and the bill of costs was taxed and allowed at Shs. 7,106,000/= on 8th October 2009.
It is that taxation proceedings and ruling that was set aside and its execution stayed in Misc. Application No. 462 of 2010 which was heard ex parte for the reasons already stated herein above.
I have given this very elaborate background so that this application is looked at in its context. Contrary to one of the grounds stated in Misc. Application No. 24 of 2011 that there was an error on the face of the record as court was misled to set aside the decree of court in H.C.C.S. No. 497 of 2004, a review of the records as above does not indicate that such an order was given in Misc. Application No. 462 of 2010.
For that reason, the judgment and decree in that suit remains as it has never been quashed or set aside by any court. It would have of course been irregular if the Registrar had done so in her ruling in Misc. Application No. 462 of 2010 because she did not have the power/jurisdiction to review or set aside a decision of a judge.
I am of the considered opinion that setting aside the dismissal and reinstating Misc. Application No. 24 of 2011 will not serve any useful purpose in view of the background of this case as highlighted above. If the application is reinstated, this court would have to determine whether or not it was irregular for the 1st applicant and his counsel to proceed with taxation hearing without notifying the administrators of the estate of the late Ndagire. This is a question of fact and law which in my view would most likely be determined in favour of the respondents.
To my mind the remedy for the applicants does not lie in setting aside the dismissal and reinstating Miscellaneous Application No. 24 of 2011. I strongly believe that the applicants are still at liberty to file a fresh bill of costs in H.C.C.S. No. 497 of 2004 and serve on the administrators of the late Ndagire’s estate so that it is taxed inter-parties. This is because as already stated above, it was the taxation proceedings and ruling that were set aside and execution proceedings stayed for the reasons given and not the judgment and decree in the main suit in which cost was awarded to the 1st applicant.
In the circumstances, taking this application in its context as analysed above, this court is satisfied that it is not necessary to grant it because it will not serve the best interest of justice and expediency. In the result this application is accordingly dismissed with costs.
I so order.
Dated this 24th day of February 2012.
Ruling delivered in chambers at 3.00 pm in the presence Mr. Denis Byaruhanga for the applicants, Mr. Steven Babi the 1st applicant and Mr. Henry Sebwami one of the respondents.