THE REPUBLIC OF UGANDA
IN THE HIGHCOURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 905 OF 2004
(Arising out of HCCS No. 492 of 2004)
MUTWALIBI TEZITA………………………………………APPLICANT/ DEFENDANT
HAJI MUBARAK KYAKULAGA ………………………….. RESPONDENT/PLAINTIFF
BEFORE: THE HON. LADY JUSTICE M.S. ARACH — AMOKO
This is an application under 0.9 Rule 9 and 0.9 r 24 CPR for the setting aside of an exparte decree entered against the Applicant in favour of the Respondent by this Court on the 23rd November, 2004.
The Application is based on the following grounds:
i. The Applicant’s advocate mistakenly read the date of the case of Kakooza and karemera which was on the 10th November 2004 and mistakenly confused it with the date on the hearing notice.
ii. That the Applicant honestly intended to attend Court on the hearing date but the same was not communicated to him.
iii. That the Applicant will suffer substantial loss and damage if he is not heard and the suit determined on its merits.
iv. That the mistake of counsel should not be visited on the Applicant.
The Respondent/Plaintiff had sued the Applicant/Defendant, for the recovery of Shs.12m, being the price of goods supplied to him on credit by the Respondent/Plaintiff between February and June 2004, general damages for breach of contract, interest, and costs.
The Applicant/Defendant filed a defence denying the claim in total and contending that the undertaking allegedly signed by him on 2/6/2004 is a forgery, and the suit should be dismissed with costs.
The Respondent/Plaintiff filed a reply to the defence denying any forgery and maintained his claim.
Mediation failed and the matter was set down for scheduling conference before me on the 9/11/2004 at 9 a.m. It was also cause listed. On that day both the Applicant/Defendant and his counsel were absent from the Court. Counsel for the Respondent/Plaintiff, Mr. Muziransa informed me and I confirmed on the Court record that Mr. Lwalinda, learned counsel for the Applicant/Defendant had indeed been served with a hearing notice and had noted on it thus:
“Received in protest. Counsel handling the matter shall be involved in another High Court case already fixed vide High Court Civil Suit No. 602 of 2002 Kakooza —Vs- Kasaala.”
I checked the cause list of that day and established not only that the case of Kakooza Jonathan and Anor —Vs- Kasaala Growers Co operation — HCCS No. 602/02 was
not fixed for hearing on that day, that is on the 9/11/2004 but that it had instead been cause Fisted on 10/11/2004 at 9 am, the following day; before me. Mr. Muziransa was of the view that if his colleague’s reason was genuine, he had the duty to communicate to him his inability to attend Court on the said day in ample time, or at least sent someone to hold brief for him and ensure that his client attended Court. In his view, his colleague’s conduct amounted to a contravention of that duty. I accepted his argument and allowed the case to proceed exparte, under 09 rule 17 (1) (a) of the CPR and S.4 of the Judicature (Amendment) Act, 2002; which enjoins this Court to prevent abuse of the process of the Court by curtailing delays in trials and make orders for expeditious trials. I heard the case and delivered Judgment on the 23rd November 2004 in favour of the Respondent/Plaintiff, hence this application.
Both the Applicant and his lawyer filed affidavits in support of the application.
According to his affidavit, the Applicant came to know of the Judgment on the 17th November 2004, when he checked in the Commercial Court Registry. He immediately went to his lawyers and spoke to Mr. Lwalinda who confirmed after checking his diary that he had indeed been served with the hearing notice but had inadvertently misread the date. That he became agitated and went out of the said lawyers chambers to seek further legal advice from another advocate who advised him that the mistake and/or negligence of counsel should not be visited against him. Had he been aware of the hearing date, he would have indeed attended Court since he had duly attended mediation on 15/9/2004 and 22/9/2004. He was thus at all material times ready to attend Court. Further, that he has a good defence to the suit since he paid for all the goods in question and he would prejudiced and irreparable injury caused to him if this Judgment is not set aside and he is allowed to present his defence.
Mr. Lwalinda confirmed the Applicant’s statements in his affidavit. He stated that he did indeed endorse on the hearing notice that he would not be available on the said date as he would be appearing in the case mentioned earlier. This is because he had mistakenly read the date of the said case and confirmed it with the date of the Applicant’s case on the hearing notice. That he came to realize the mistake after the suit had preceded exparte and the perusal of the cause list. That the non-appearance was entirely his fault and it is just an equitable and in the interest of Justice that the said exparte Judgment be set aside and both parties be heard. He annexed a copy of his diary to the affidavit.
The Respondent filed an affidavit in reply in which he maintained that both supporting affidavits are baseless, full of lies and aimed at defeating/delaying Justice. Paragraph 3 of Mr. Lwalinda’s affidavit is totally false as the hearing notice was effected on the 15th October 2004 and not the 17th November 2004; and the case was not conducted on the 9th and 16th November 2004. That the alleged mistake by counsel in respect of the 1st hearing date does not explain his non-appearance on the subsequent hearing date of 16th November 2004. The non-appearance of the Applicant’s counsel and the Applicant was deliberate and aimed at frustrating the expeditious disposal of the case to which the Applicant has no plausible defence. The application should therefore be dismissed with costs as the Applicant has failed to show any sufficient cause for his non- appearance to warrant setting aside the exparte Judgment.
Mr. Musamali argued the application on the basis of the two affidavits. He relied on the case of Kyobe Senyange —Vs- NAKS LTD [19801 HCB 31, where it was held that the mistake or oversight on the part of the advocate though negligent is sufficient cause to set aside an exparte decree. The Applicant has a good defence in that he paid for the goods. The application should therefore be allowed with costs.
Mr. Muziransa opposed the application strongly. He submitted that the circumstances under which exparte Judgments are set aside under the rules are very clear. It must be for sufficient cause: Also in Charles Wanyana —Vs- Sengendo Ssalongo  ULR 114, regard must be had to all the facts and circumstances prior and subsequent and the merit of the case of the parties. In Ijalla —Vs- Energo Project [1988 — 90] HCB 157 it was held that it is a requirement that the Court should satisfy itself that there is a defence on merits. This application falls short of these principles. The application should therefore be dismissed with costs.
I have perused the affidavits for and against the instant application. I have carefully considered the submission by both learned counsel and the law under which the application was made. I am of the view that considering the amount involved, the Applicant be given an opportunity to present his defence, no-matter how weak it is. It is his constitutional right to be heard. His previous lawyer was indeed negligent as is evident from his own affidavit and the one in reply as well as the Court record. The line of decided cases however are to the effect that the negligence or carelessness of an advocate must not be visited on his client. The Applicant had no way of knowing the hearing date unless his lawyer informed him. Mr. Lwalinda did not do so and he did not even turn up on the subsequent hearing date of 16th November 2004 even after learning that the case had been fixed for hearing the previous day. He stated in paragraph 6 of the affidavit that:
“6. That I came to realize the mistake after the said suit had proceeded, on the 10th November 2004, when I appeared in the case of Kakooza & Karemera upon perusal of the cause list in Commercial Court, only to find that the case had been fixed the previous day on the November 2004.”
Mr. Lwalinda indeed appeared before me on 10th November 2004 in Kakooza’s case. He
does not explain why, as a prudent counsel he did not find out from the Registry the
position of the case because the case had been part heard and adjourned to 16th
November 2004. In my view the non-appearance was not inadvertent. It was mere
negligence on the part of Mr. Lwalinda. For that reason, I grant this application and set
aside the Judgment on the following conditions:
1. Deposit in Court of Shs.6m as part of the decretal sum by 10/3/2005.
2. Taxed costs of this application to be met by Mr. Lwalinda personally.
3. Hearing is fixed on 10/3/2005 at 9 a.m.
4. File to be re- allocated to another Judge.
M.S. Arach — Amoko
Ruling delivered in Court in the presence of:
1. Musamali for Applicant/Defendant.
2. Muziransa for Respondent/Plaintiff.
3. Okuni — Court clerk.
M.S. Arach — Amoko