THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 656 OF 2004
(ARISING FROM CIVIL SUIT NO. 666 OF 2002)
MASTER TELECOM AND
COMPUTERS LTD ……………………………………………….APPLICANT/ PLAINTIFF
1. GREATER AFRICAN
RADIO LTD ……………………………RESPONDENTS /DEFENDANTS
2. KAIHURA NKUBA
Before: The Hon. Mr. Justice E.S. Lugayizi
This ruling is in respect of an application the applicant made by way of Notice of Motion under Order 9 rules 20, and 24, Order 48 rules 1 and 2 of the Civil Procedure Rules and section 98 of the Civil Procedure Act (Cap. 71). An affidavit the applicant’s Managing Director swore on 22nd September 2004 accompanied the application. In all, the Notice of Motion showed that the applicant sought Court’s orders below:
(a) an order setting aside the dismissal of High Court Civil Suit No. 666 of 2002 (i.e. the head suit) and reinstating the head suit;
(b) an order staying execution proceedings in respect of the head suit until Court has
disposed of the head suit; and
(c) an order providing costs for the application.
The respondents filed two affidavits in opposition to the Notice of Motion. Washinda Haki Bonera (i.e. the Managing Director of the 1st Defendant) and Kaihura Nkuba (i.e. the 2nd defendant) swore the said affidavits.
However, before Court goes into the merits of the application it is wise to understand its background, which is briefly as follows:
On 18th November 2002 the applicant filed the head suit against the respondents claiming a sum of shillings 32,300,000/ in respect of goods supplied to the respondents in 2001. The respondents responded by filing a Written Statement of Defence denying the above claim. Subsequently, all the parties hereto sat back and did nothing to dispose of the head suit. Sometime in the middle of 2004 as Court took stock of its workload it came across the head suit, which had been filed a long time ago, but none of the parties involved in it had taken interest in having it heard and disposed of. As a result, Court sent notices to the parties concerned requiring them to attend Court on 28 July 2004 and show cause why it should not dismissed the head suit for lack of interest on the part of all the parties. On 28e July 2004 the advocates for all the parties concerned attended Court. Mr. Bainomugisha was for the applicant and Mr. Bwengye was for the respondents. However, the applicant’s advocate could not show cause why the head suit should not be dismissed for lack of interest. Consequently, Court dismissed the head suit with costs. Later on, the respondents had their bill of costs in respect of the head suit taxed and then sought to recover the said costs by way of execution. Briefly, that is the background that gave rise to the application that is the subject of this ruling.
At the time of hearing the application Mr. Bwengye raised a number of preliminary objections, which he argued together with one substantive ground. The preliminary objections were all procedural. They revolved around the fact that the Notice of Motion was fundamentally defective for these reasons:
(a) the applicant brought it under the wrong law;
(b) it lacked the documents which were required under the law to accompany it (e.g. a summary of evidence, a list of witnesses, etc); and
(c) it did not list the grounds for the application as the law required.
He relied on Nakiddu v Katumba 1983 HCB 70; Mugalula Mukiibi v C. Patel (1984) HCB 35 at Page 36; Naume Nandege v Busoga District Administration (1971) HCB 158 at Page 159, Order 48 rule 3 and Order 9 rule 19 of the CPR in support of the above position.
With regard to substance, Mr. Bwengye submitted that the application as a whole had no merit, for Court had rightly dismissed the head suit, which the applicant took inordinately long to dispose of. He pointed out that Court had the power to dismiss such matters. Among others he relied on the English decision of Allen v Sir Alfred Mcalpine and Sons Ltd (1968) 1 All E.R. Page 543 in support of the above submission.
Mr. Tumwesigye did not agree with Mr. Bwengye’s submissions, which in his opinion had no merit. Firstly, he insisted that it was not true that the Notice of Motion did not cite grounds for filing it. Secondly, he submitted that the rest of the preliminary objections Mr. Bwengye raised were simply technicalities that ought not to be used to defeat the ends of justice. He cited the case of Sule Pharmacies Ltd v Registered Trustees of Koja Shia High Court Miscellaneous Application No. 147 of 1999 in support of the above position.
With regard to substance, Mr. Tumwesigye submitted that the application had substance. He pointed out that his client had a very good case against the respondents and it was interested in pursuing it to its logical conclusion, but its previous advocates duped it into believing that they were actively attending to the matter, whereas not.
For that reason Mr. Tumwesigye implored Court not to visit the negligence or deceit of his client’s previous advocates upon the applicant.
After carefully considering the submissions of both counsels Court fully agrees with Mr. Tumwesigye that all the preliminary objections Mr. Bwengye raised have no merit. In the first place it is not true that the Notice of Motion does not contain grounds for filing it. It does. That aside, the rest of the preliminary objections were centered on form or technicalities and not the substance of the application. It is trite law that it is the substance of a suit that matters and not its form. (See Article 126 (2) (e) of the Constitution). Therefore, it is not fatal that the applicant’s advocates brought the Notice of Motion before Court under the wrong law. It is also not fatal that a summary of evidence or a list of witnesses, etc did not accompany the Notice of Motion. Furthermore, on reading the Notice of Motion one could not get lost concerning its intent and purpose, for its contents clearly show that it is seeking Court’s orders to set aside the dismissal of the head suit and to stay execution proceedings. In any case, the respondents did not complain that the defects in the form of the Notice of Motion embarrassed them in their defence or reply to the Notice of Motion.
In view of the foregoing, Court has no choice but to make a finding that the preliminary objections Mr. Bwengye raised in respect of the Notice of Motion have no merit. Therefore, Court must over-rule them; and it is so ordered.
However, before leaving this area of the ruling Court wishes to repeat what it said recently in Miscellaneous Application No 368 of 2004 - Concorp International Ltd v Uganda Moslem Supreme Council. It is as follows:
“despite the foregoing it does not mean that the members of the Bar may now flout the rules of procedure with impunity. The obligation on the part of the members of the Bar to keep high standards of advocacy from the outset of a suit to the end of it remains and it includes filing a suit under the correct law and in the proper form.”
(See also Major-General David Tinyefuza v Attorney General Constitutional Case No. 1 of 1997 as per Karokora (SCJ) at pages 3 and 4 of his judgment.)
With regard to the substance of the application the question to answer is whether Court lawfully dismissed the head suit 28th July 2004?
In answer to the above question, Mr. Bwengye submitted that Court lawfully dismissed the head suit on account of the fact that the applicant had shown lack of interest in it by leaving it unattended, for a very long time.
However, Mr. Tumwesigye thought otherwise. In essence, he submitted that Court had no justification in dismissing the head suit for his client was still interested in it. He then pointed out that Court’s dismissal of the head suit in reality amounted to punishing the applicant for the negligence or deceit of its advocates.
In dismissing neglected suits courts ordinarily use the power vested in them under Order 15 of the Civil Procedure Rules. In all, that Order empowers courts to dismiss suits that have been neglected under four specific instances, that is to say:
(a) where a suit was adjourned generally and no application is made within 12 months of such adjournment;
(b) where on the day a suit has been adjourned for hearing both parties or any of them fail to turn up;
(c) where the defendant applies for dismissal of the suit after the plaintiff has failed to set down the suit for hearing within 8 weeks from the delivery of a defence, or where a counter claim is pleaded within 10 weeks from the delivery thereof;
(d) in any case, not otherwise provided for where neither party makes an application for a period of two years with a view to proceeding with the suit.
In the instant case, the court record shows that the applicant filed the head suit on 18th November 2002 and subsequently on its own initiative Court dismissed it on 28th July 2004. Counting from the date of filing the head suit Court dismissed it after one year and nine months of inaction on the applicant’s part. Curiously, a dismissal of a suit in the above circumstances does not appear to be covered under the limbs of Order 15 of the Civil Procedure Rules listed above. However, that does not mean that such dismissal is necessarily unlawful, for courts have inherent power under section 98 of the Civil Procedure Act (Cap. 71) “to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court” Quite often courts resort to the use of such power when, as in the present case, there is a gap in the law. (See Ahmed Hassan Mulji v Shrinbhai Jadavji (1963) E.A. 217; and Miscellaneous Application No. 614 of 2003 Tahar Fourati Hotels Ltd v Nile Hotel (International) Ltd.)
From the foregoing, it is clear that although Court could not have lawfully dismissed the head suit under Order 15 of the Civil Procedure Rules nothing could have prevented it from doing so under its inherent power in section 98 of the Civil Procedure Act (Cap. 71). Needless to say, it was a glaring abuse of the process of court for the applicant to file a suit against the respondents and leave it hanging over the respondents’ heads for one year and nine months. It was, therefore, timely for Court to intervene and put an end to such abuse of its process.
All in all, Court is satisfied that it lawfully dismissed the head suit. For that reason, the application that is the subject of this ruling has no merit and, therefore, Court must dismiss it with costs. It is so ordered.
Before Court takes leave of this matter it wishes to make two comments. Firstly, when someone files a suit through an advocate the fact that he has done so does not take away personal responsibility for the suit from him and shift it upon the advocate who has been hired to represent him. Consequently, the person filing the suit must at all times remain vigilant. He must constantly check on his advocate and the court to ensure that there is progress in his suit and that Court disposes of it within the shortest possible time. If, he fails to do so and the suit is ultimately dismissed such person should not blame the courts. Secondly, it is high time courts and all their officers put much more emphasis on the routine application of Order 15 of the Civil Procedure Rules and section 98 of the Civil Procedure Act (Cap. 71). In doing so, many cases that could be creating a false perception of the presence of exceedingly heavy backlog might be eliminated from our judicial system.
Read before: At 10.23 a.m.
Mr. Bwengye for the respondents
Mr. Tumwesigye for the applicant
Mr. Sewanyana c/clerk