THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 456 OF 2004
(Arising from Misc. Appl. No. 360 of 2004 and HCCS No. 142 of 2004)
JAGWE MOSES t/a NKOKONJERU STORES :::::::::::::::::::::::::::::::::::: APPLICANT
NAKIMULI HADIJA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: THE HON. LADY JUSTICE M.S. ARACH — AMOKO
This is an application for orders that:
1. The dismissal of Misc. Application No. 360/04 be set aside and
2. Misc. Appl. No. 360/2004 be reinstated and fixed for hearing.
The application was brought under the provisions of Order 9 rules 9 and 24 of the CPR and S.98 of the CPA. It is supported by the affidavit of Advocate Edward Bamwite and that of the Applicant filed together with the application but briefly are that:
1. On the date of dismissal, the Applicant came to Court but remained outside Court waiting for his counsel and that when he entered the Court was reading the ruling.
2. Counsel for the Applicant was ill and had been put on bed rest by his physician.
3. That the Applicant has always been ready and willing to have his case heard because he has a good defence to the suit in that he is not indebted at all to the Respondent.
4. There has been no delay in filing the application.
5. It is in the interest of Justice that the Applicant be given a chance to present his defence.
The Respondent has filed an affidavit in reply dated 2/9/2004 basically stating that the Applicant’s affidavit is false and he has absolutely no defence to her claim.
The background to this application I have gathered from the Court record is as follows:
On 11th March 2004, the Respondent filed in this Court CS No. 142/04 by a Specially Endorsed Plaint under Order 33 CPR against the Applicant. In that claim, the Respondent alleged that she paid to the Applicant a total sum of Shs.18,760,000- for 335 bags of sugar in September 2003. The Applicant refused and or failed to deliver this sugar to her when she sent her lorry to collect the same on 18th September 2003. She filed the suit to recover the money plus interest and costs.
On 15th March, 2004, summons were issued by the Registrar. On 23 April 2004, one Kwiyu Cwiny Gladys, a process server with the Respondent’s counsel’s firm filed an affidavit of service to the effect that she had served the Applicant whom she knew very well, with the said summons on 17th March 2004 at his residence in the company of the Plaintiff. The Applicant read through the summons but declined to acknowledge receipt on the ground that he was fully aware of the matter and would forward the matter to his lawyers. On the 21 April, 2004 the Respondent’s lawyers applied for Judgment on the ground that the Applicant had not applied for leave to appear and defend the suit. On the 26th April the Registrar entered Judgment against the Applicant for that reason; and a decree was issued on the same day for the full amount of Shs.18,760,000- plus interest at 28% p.a from date of Judgment till payment in full, together with the costs. A warrant of attachment was thereafter issued and has been partly executed by attaching some of the Applicant’s movable property. The Bailiff came back to Court for a fresh warrant to attach immovable property on 18th July 2004. On the 13th June 2004 the Applicant applied and obtained an interim order of stay of execution under Misc. Appl. No. 396/2004 pending the determination of the main application; i.e. Misc. Appl. No. 360/2004.
The main application (Misc. Appl. No. 360/04) was fixed for hearing on 25/6/04. On that day Mr. Bamwite counsel for the Applicant applied for adjournment on the ground that he had just been served with an affidavit in reply and he needed time to go through it with his client before making a rejoinder. The application was adjourned to 2/7/2004 at 11.30 a.m for hearing in the presence of the Applicant as well, and the interim order extended.
On the 2/7/2004 Mr. Lukwago Erias and the Respondent attended Court. Neither the Applicant nor his counsel was present. Mr. Lukwago applied at 12 o’clock for dismissal and the Court dismissed the application with costs under 0.9 rule 19 of the CPR, there being no justification for the absence of both the Applicant and his counsel. The instant application now seeks to set aside the dismissal order and reinstate Misc. Appl. No. 360/04 — the grounds stated earlier on.
Mr. Badagawa Paul argued the application since Mr. Bamwite had become a witness. Mr. Medad Lubega represented the Respondent.
I listened carefully to their arguments and read the affidavits on record together with their annextures. I also referred to the rules cited in the application. Rule 9 of Order 9 states:
“9. Where Judgment has been passed pursuant to any preceding rules of this Order, or where Judgment has been entered by the Registrar in cases under Order XLVI, it shall be lawful for the Court to set aside or vary such Judgment upon such terms as may be just.”
Misc. Application No. 360/04 was dismissed by this Court under the provisions of Order 9 rule 19 of CPR. The record of 2/7/04 bears this out clearly where Mr. Lukwago stated;
“I pray that you dismiss this application under 0.9 Rule 19 because there is no Justifiable reason why they are not here although the matter was adjourned in their presence.”
This was my order:
“In the circumstances the prayer for dismissal is granted and the application is dismissed with costs under 0.9 Rule 19 CPR.”
I did not enter Judgment because Judgment had been earlier on entered by the Registrar under Order 33 Rule 3 CPR. This rule cannot therefore apply to the instant application.
The Notice of Motion also cited Order 9 rule 24 CPR which reads in part that:
“24. In any case in which a decree is passed ex parte against a Defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court may make an order setting aside the decree as against him upon such terms as to costs, payment into Court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.”
Again there was no decree passed exparte against the Applicant on the 2/7/04 by this Court. All I did was dismiss his application for non — attendance under 0.9 rule 19 as stated earlier. This rule is also inapplicable in the circumstances.
The correct rule, if I may be of some guide to the Applicant’s counsel in this case is Order 9 rule 20 which reads in the relevant part that:
“20 (1). Where a suit is wholly or partly dismissed under rule 19 of this Order, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an Order to set the dismissal aside, and if he satisfies the Court that there were 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.”
Suits include applications. See S.1 CPA. Ordinarily, this application would be dismissed
since it was brought improperly under the wrong rules. However, in the interest of
Justice and in exercise of the Courts inherent powers under S.98 of the CPA cited in the
Notice of Motion, Article 126 (1) (e) of the Constitution and S. 4 (2) of the Judicature Amendment Act 2002, I have declined to dismiss this application for that reason. I have instead decided to determine it under the aforesaid legal provisions and in particular S. 4 (2) of the Judicature (Amendment) Act 2002 which provides that:
“(2) with regard to its own procedures and those of the Magistrates Courts, the High Court shall exercise its inherent powers —
(a) to prevent abuse of process of the Court by curtailing delays trials and delivery of Judgment including the power to limit and discontinue delayed prosecutions;
(b) to make expeditious trials,
(c) to ensure that substantive Justice shall be administerial without undue regard to technicalities.”
I have taken comfort in similar cases for instance, the case of Intraship (U) Ltd —Vs G.M. Combine (U) Ltd (1994) VI KARL 42, Lugayizi J, having established that the application was brought under the wrong, law observed as follows:
“The question should be whether the irregularity is serious enough to prevent the Court from hearing the application and determining it on its merits. The answer would depend on whether non-observance of procedural rules in issue would lead to injustice. If it would not then the Courts would be willing to over look it, otherwise they would not.”
I respectfully agree with that approach. In this case, I do not think it would. All the Applicant wants is reinstatement of his application. If I dismiss this application I am quite sure he will go back and file another application for the same order hopefully using the correct procedure this time. This will merely lead to a multiplicity of applications, which this Court has a duty to discourage. Moreover, whether it is order 9 rule 24 or 9 rule 20, the Applicant will still be required to satisfy the Court that he was prevented from attending Court when the suit (read application) was called for hearing, by sufficient cause. I have therefore applied the principles laid down under 0.9 rule 20 in determining this application.
The Applicant has stated the reasons for non attendance in his affidavit and that of Mr. Bamwite, his counsel. The first one is in paragraphs 5 and 6 where he deponed that:
“5. That I came to Court in time that day but I remained outside the Court room/chambers waiting for my advocate and the file was called when I was seated outside the Judge’s chambers.
6. That when I saw that my advocate was not coming I entered the Court Room only to find the learned trial Judge reading the ruling, which dismissed the suit.”
He had stated earlier in paragraph 4 that:
“4. That the matter had been fixed for hearing on 2nd July 2004 at 11.30 a. m but the application was dismissed.”
The Respondent in her reply has stated that the contents of paragraph 5,6,7,8 and 9 are false and that:
‘5. On the 7d day of July 2004, when the application was called for hearing, the Applicant herein was not in Court neither was he anywhere within Court premises as he claims.
6. That prior to the calling of the application for hearing, I had been outside the Judge’s chambers but never saw the Applicant as he claims.”
The Respondent’s statement is true. The Applicant from his own admission states that he was aware that the matter was fixed for hearing at 11.30 a.m. If indeed he came to Court and was seated outside, which I disbelieve, he has not given this Court the reason why he did not enter the Court together with the Respondent, whom he knew very well before 12 o’clock when the application was dismissed by the Court. I do not personally recall seeing the Applicant in Court on that day after dismissing the said application, which incidentally was the last one on that day. The Applicant is therefore telling a blatant lie in his affidavit and such affidavit cannot be relied on. See: Bitaitana —Vs- Kananura  HCB 34.
The second reason is that the Applicant’s Counsel Mr. Bamwite was ill and had been put to bed rest by his physician. The Applicant has stated so in paragraph 5 of his affidavit. Counsel Bamwite has also sworn an affidavit that:
“5…..On 2/7/2004 I did not attend Court because I was seriously ill and I had been put on bed rest for 3 days.
6. That I have got a history of heart failure, hypertension and mild diabetes. Medical documents showing the history of my ailments are annexed here of marked A”
7 That in the afternoon of 1st July 2004 I felt dizzy and some headaches and when I met my physician at St. Mark’s Clinic it was found that my High Blood Pressure had risen to 200/110.
8. That the physician advised me that if I continue with work, ......,. I could get a stroke so he put me on Bed rest for 3 days with 2nd July 2002, inclusive. The medical treatment from dated 1st July 2004 is annexed and marked “B’
9. That I could not come to Court to represent the Defendant/Applicant because I was ill.
10. That I had sent a message to the chambers to inform the Defendant/Applicant so that he could apply for an adjournment but the information did not reach the Defendant/Applicant in time.”
I have seen the medical form dated 1/7/2004, and the discharge form from Nsambya
Hospital of 1998 in respect of counsel’s medical history. Counsel has all my sympathy.
However, the address given by the Applicant’s counsel indicates that Mr. Bamwite is not a sole practitioner in his law firm. The address on the Notice of Motion and all documents filed by Mr. Bamwite on Court file reads:
“Drawn & Filed by:
M/S Bamwite, Mpango-Kakuba & Co. Advocates
Clearly, Mr. Bamwite practices in a firm of advocates. He has not told Court why he did not ask one of his partners to take over the file. Counsel has also not told this Court the reason why he did not ask any other advocate to hold brief for him either by telephone or through the clerks in his chambers in accordance with the normal practice. I do not recall seeing Mr. Bamwite’s clerk in Court on that day in an effort to inform the Applicant as alleged. I am therefore not convinced that this as a good reason for non attendance on the said date.
The third ground is that the Applicant has always been ready and willing to have his case heard because he has a good defence against the Respondent/Plaintiff in that he is not indebted all to the Plaintiff/Respondent.
The first part of this ground is not true at all. The Judgment sought to be executed is a result of the Applicant’s failure to file an application for leave to appear and defend the main suit even after being served with Court summons. The process server swore that:
“3… That on the 17th day of March 2004 at around 10.00 a.m. I, in the company of the Plaintiff proceeded to Ntinda where the Defendant resides on volume 2618 plot 18 Martyrs Garden, Minister’s village zone Ntinda. On reaching there, I found Jaggwe Moses which person I know very well having previously served him with notice of intention to sue in this very matter.
4. That I introduced myself to him and the purpose of my visit and thereafter I served him with the summons in summary suit together with a copy of the plaint which he read through but declined to acknowledge receipt on the ground that he was fully aware of the matter and would forward the papers to his lawyers.”
Thereafter the Plaintiff sat back until he was woken up by the Court Bailiff in June 2004. That triggered off the present series of applications to save the Applicants property from attachment. Clearly that is not the action of the person who has been “ready and willing to have the case heard.” The Applicant should have applied for leave to appear and defend the suit at the right time.
The second leg of this ground is that he has a good defence in that he is not indebted at all to the Respondent. This ground again is not supported by the evidence on record. Firstly, the claim is for Shs.18,760,000- paid by the Respondent to the Applicant for the supply of 335 bags of sugar. The Applicant does not deny receipt of this money at all. His defence has all along been that he never had any business dealings with the Respondent and that the person he dealt with was Mama Nankya who took the goods. (See paragraphs 9 and 10 of his supporting affidavit in Misc. Appl. No. 360/2004). In paragraph 7 of his affidavit in rejoinder in the same application he deponed thus:
“7 ………..In answer to paragraph 8 of the affidavit in reply I state that the Shs. 18,960,000- was paid by Mama Nankya and she took her goods. The invoices in the names of Mama Nankya are annexed and collectively marked ‘C”
To this the Respondent stated by way of rebuttal:
“6. That in reply to paragraph 7 of the affidavit in rejoinder, I wish to state that Mama Nankya is my business name and I paid the said Ug. Shs. 18,960,000- in the said name and at no single moment did I collect the sugar I paid for.”
There is no evidence to controvert this statement from the Applicant. Where facts are sworn to in an affidavit and these are not denied or rebutted by the opposite party, the presumption is that such facts are accepted. See: Massa -Vs- Achen  HCB 297. As a matter of fact, I asked the Applicant and the Applicant agreed to produce before this Court Mama Nankya on the 3/9/2004 when the application was fixed for hearing. This is what the Court record shows on that day:
‘Ct: I ordered that the Defendant produces the lady called Mama Nankya.
Def/Appl: This is the one (pointing to the Respondent). There is no Mama Nankya. I didn’t know her as Adija Namuli.”
Clearly, the Applicant is lying through and through in this case. If he didn’t know the Respondent by another name at least he knew her by appearance. Why does he deny that he had any business dealing with her at all and at the same time accept that she is the Mama Nankya he dealt with? Besides the invoices he relies on as evidence of delivery are not useful to his defence. An invoice is merely a document showing details of a sale or a purchase. It is not evidence of a delivery. See: Black’s Law Dictionary 5th Edn. Page 743. The Applicant has not produced in this Court any delivery note showing that he actually supplied the goods.
Furthermore, although it was not brought out in this application, the Applicant appears to have a record of bad debts. He has produced before this Court evidence from Luzira Prisons where he has served 6 months prison sentence for a civil debt arising from HCCS No. 610/2003. (See: release order dated 8/6/2004 (Annexture ‘B’) and Annexture ‘A’ to his affidavits in rejoinder in Misc. Appl. No. 360/2004). He is therefore a person with a bad record who cannot be trusted in business.
In conclusion and for the reasons stated here above, I find no satisfactory reason to reinstate Misc. Appl. No.360/2004. This application is therefore dismissed with costs to the Respondent and the interim order is accordingly cancelled forthwith.
M.S. Arach — Amoko
Ruling delivered in Court in the presence of:
1. Mr. Medad Lubega for Respondent.
2. Mr. Paul Badeguma for Applicant.
4. Milton — Court clerk.
M.S. Arach — Amoko