THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICTION NO. 356 OF 2003
(Arising from High Court Civil Suit No. 278 of 2000)
P. N. KABALEGA …..…………..…………………………………………….RESPONDENT
H. F. MIRIMA ……………………………………………………………………APPLICANT
Before: The Hon. Mr. Justice F. S. Lugayizi
This ruling is in respect of an application for Court’s orders as follows:
E.S. Lugayizi (J)
(a) to set aside the dismissal of High Court Miscellaneous Application No. 1667 of 2000;
(b) to set aside the decree Court passed on 10/10/2000; and or
(c) grant 1ea e to the applicant to defend HCCS No. 278 of 2000.
The applicant made the application by way of Notice of Motion under Order 33 rule 11 and or Order 9 rule 24 and Order 48 rules 1 and 2 of the CPR. An affidavit the applicant swore on 19/6/2003 accompanied the application.
The respondent opposed the application under an affidavit he swore on 14/10/2003. Court heard the application on 15/10/2003, but before it goes into the substance of the application it is useful to understand its background which is briefly as follows:
On 20/3/2000 the respondent filed High Court Civil Suit No. 278 of 2000 under summary procedure and claimed a sum of shillings 1 5,220,000/= from the applicant. He alleged that the said sum of money was a friendly loan he gave the applicant at the latter’s request. In turn, the applicant, under Miscellaneous Application No. 1667 of 2000, applied for unconditional leave to defend the suit. On many occasions between the end of November 2000 and the early part of October 2001 Court fixed the said application for hearing, but each time one of the parties gave one reason or another for being unable to go on with the hearing of the application. Finally, on 10/10/200 1 when the matter came up once again for hearing the respondent’s counsel Mr. P.S. Ayigihugu turned up, but the applicant and his counsel (Mr. Katuntu) did not show up. Mr. Ayigihugu then requested Court to dismiss the application with costs and enter a decree in favour of the respondent in the head suit. Court obliged in these words; “Judgment entered as prayed”. It is that order and its cumulative results, which gave rise to the application that is the subject of this ruling. Roughly, that is the background to this application.
At the time of hearing the application Mr. Balikuddembe represented the applicant and Mr. Kwizera represented the respondent.
Before Mr. Balikuddembe made his submissions he clearly pointed out that the applicant does not dispute part of the decretal sum (i.e. shillings 9,000,000/=) which he is willing to pay any time. He insisted that the applicant only disputes the balance of the decree (i.e. a sum of shillings
Be that as it may, in essence Mr. Balikuddembe submitted that the applicant has good cause to seek the first order referred to above. He pointed out that the applicant and his counsel were not aware that the application for leave to defend HCCS No. 278 of 2000 was supposed to be heard on 10/10/2001. He argued that they had not previously been served for the hearing. Therefore, they could not have attended it. For that reason, the ex parte order the learned Judge entered against the applicant that day was made in error. Mr. Balikuddembe further pointed out that the applicant paid part of the money, under the decree of 10/10/2001, to the respondent in cash (i.e. shillings 1,000,000/=). He also maintained that the balance (i.e. shillings 5,200,000/=) is not payable because it represents exorbitant interest, which the respondent who is not an authorised moneylender is not supposed to charge. For those reasons, Mr. Balikuddembe called upon Court to grant the orders earlier on referred to.
On his part, Mr. Kwizera opposed the application. He submitted that the applicant failed to show that he had good cause for not attending Court on 10/10/2001. This is particularly so, since the record shows that his advocate (Mr. Katuntu) attended the proceedings on the previous occasion when Court adjourned the application to 10/10/2001. This means that at least, the applicant’s counsel was aware of the proceedings, which took place on 10/10/2001. The applicant’s advocates and the applicant deliberately chose not to attend those proceeding. For that reason, the applicant should not seek an order to vacate the learned Judge’s ex parte order of 10/10/2001. Mr. Kwizera further argued that even assuming that the applicant had good cause not to attend the proceedings of 10/10/2001; the fact that he has been dilatory in bringing the application should disentitle him of the orders sought. Lastly, Mr. Kwizera pointed out that the allegation that the disputed sum of shilling 5,200,000/= represented unlawful interest was simply an afterthought that Court should ignore. Therefore, he urged Court to dismiss the application with costs.
It is clear from the pleadings, the law under which the applicant made the application and the submissions of counsel that the application that is the subject of this ruling raises four fundamental issues, that is to say,
1. Whether the applicant is responsible for the inordinate delay in bringing the application.
2. Whether the applicant had good cause not to attend court proceedings of 10/10/2001.
3. Whether there are triable issues justifying the grant of leave to the applicant to defend HCCS NO. 278 of 2000.
4. The available remedies.
Court will deal with each of the above issues in the order in which they occur.
With regard to the first issue (i.e. whether the applicant is responsible for the inordinate delay in bringing the application), Court has this to say. By his order dated 10/10/2001 the learned Judge implicitly dismissed the application for leave to defend HCCS No. 278 of 2000. However, the applicant did not file the application that is the subject of this ruling until 19/6/2003. It is therefore obvious that the applicant took almost 2 years to file the said application. However, the important question to answer is this. Why did the applicant take so long to file the application in question? In his submissions, Mr. Balikuddembe answered that question by attributing the said delay on “the negligence of the applicant’s former advocates”. Finally, he requested Court not to visit the advocates’ negligence upon the applicant.
A perusal of the court record shows that Messrs. Katuntu & Co. Advocates were the first advocates the applicant engaged in respect of these matters. However, apart from filing the initial pleadings on behalf of the applicant the said advocates, visibly, did not take keen interest in the applicant’s matters. The proceedings prior to 10/10/2001 reveal that on the two occasions those advocates attended Court their Mr. Katuntu either applied for an adjournment of the application to a further date or succumbed to such application from the other side. Later on, after the learned Judges order of 10/10/2001 the said advocates filed a very clumsy application, on behalf of the applicant, which was aimed at staying a warrant of arrest. Amazingly, those advocates did not show up on the day Court dismissed the said application. Needless to say, all this points to negligence on the part of the applicant’s former advocates in generally conducting their client’s matters. They must have known all along what was happening in these matters. They also knew the effect of not acting in good time or not advising their client to act in good time, but they did not bother to act for the applicant in good time or to advise him to do so. No wonder after some time the applicant took the matters in his hands and changed advocates. In view of that background Court thinks that the applicant’s first advocates (Messrs. Katuntu & Co Advocates) were responsible for the inordinate delay in filing the application; and it would be unreasonable to hold the applicant liable for the negligence or lack of diligence on the part of his advocates. (See Ahmad Zirondamu v Mary Kyamulabi 1975 HCB 337.) In the circumstances, Court must find that the applicant is not responsible for the inordinate delay in bringing the application that is the subject of this ruling.
With regard to the second issue (i.e. whether the applicant had good cause not to attend court proceedings of 10/10/2001) court proceedings of 23/5/2001 are quite instructive because they preceded the proceedings of 10/10/2001. The proceedings of 23/5/2001 clearly show that the advocates from both sides did not attend Court that day. Only the parties herein attended Court; and for that reason, the learned Judge adjourned the application to 22/8/2001. However, there is no record of what happened in court on 22/8/2001. The next entry on the court record relates to what happened on 10/10/2001. The question to answer is whether it is reasonable to assume that the applicant was aware of the proceedings of 10/10/2001? Considering the gap in the court record as to what transpired in court on 22/8/2001, and in the absence of any evidence showing that the applicant had prior notice of the hearing that took place on 10/10/2001, it is unreasonable to make the said assumption. For that reason, Court must find that the applicant had no prior knowledge that the proceedings in question would take place on 10/10/2001. Consequently, the applicant had good cause not to attend those proceedings. In the circumstances, the order Court made on 10/10/2001 in the applicant’s absence was mistaken and must be set aside.
With regard to the third issue (i.e. whether there are triable issues justifying the grant of leave to the applicant to defend HCCS No. 278 of 2000) Court has this to say. Bearing in mind the applicant’s admission in his affidavit and his admission through his advocate (Mr.
Balikuddembe) that he owes the respondent, at least, the sum of shillings 9,000,000/=, what remains for Court to consider is the sum of shillings 6,220,000/=. Mr. Balikuddembe broke down that sum of money as follows: shillings 1,000,000/= (cash) the applicant paid to the respondent and shillings 5,220,000/= that is not payable to the respondent because it is unlawful interest. Court will not waste time on the sum of shillings 1,000,000/= because it is not supported by evidence on record. It is an allegation from the Bar, Therefore, Court will limit its findings under this issue to the sum of shillings 5,220,000/=.
On the one hand, the applicant alleges in his affidavit dated 19/6/2003 that he does not owe the respondent shillings 5,220,000/=. He insists that because the respondent is not an authorised moneylender he cannot lawfully charge such exorbitant interest. On the other hand, the respondent disputes the applicant’s claim. He alleges that the sum of shillings 5,220,000/= is not interest. It is part of the principal debt and is payable. At this point, when one considers the above two versions, one finds that it is anybody’s guess, which of the two parties is telling the truth. The effect of that scenario, therefore, is this. Court must try that aspect of the case in order to determine which of the two parties is telling the truth. That means there are triable issues justifying the grant of leave to the applicant to defend HCCS No. 278 of 2000.
With regard to the fourth issue (i.e. the available remedies) since Court has decided the first three issues in favour of the applicant, it follows that the application that is the subject of this ruling has succeeded. Therefore, Court must grant the applicant the remedies he is seeking. However, before it does so it must be remembered that the applicant and his advocate (Mr. Balikuddembe) admitted that the applicant owes the respondent the sum of shillings 9m/=. It must further be remembered that the applicant did not provide any evidence, under his affidavit, showing that he paid the respondent, at least, the sum of shillings 1,000,000/= (cash). Bearing all those things in mind, Court has no choice but to make the following orders:
1. The dismissal of High Court Miscellaneous Application No. 1667 of 2000 that was implicitly effected under Court’s order dated 10/10/2001 is hereby set aside.
2. The decree entered against the applicant on 10/10/2001 is set aside in part (i.e. in respect of the sum of shillings 5,220,000/= only). The balance of the decree remains and the applicant must satisfy it by paying the respondent the sum of shillings 10,000.000/=.
3. The applicant may now defend HCCS No. 278 of 2000 in respect of the sum of shillings 5,220,000/ only. If he decides to do so, he must file his defence within the statutory period.
4. The costs of the application shall abide the outcome of the head suit.
Read before: At 12.31 p.m.
E.S. Lugayizi (J)
Mr. Kwizera for the respondent
Mr. Katabalwa for the applicant
Mr. Sewanyana c/clerk