THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC APPLICATION NO 412 OF 2013
(ARISING FROM CIVIL SUIT NO 832 OF 2007)
AKRIGHT PROJECTS LTD}......................................................APPLICANT/DEFENDANT
OBED AHIMBISIBWE}.............................................................. PLAINTIFF/RESPONDENT
BEFORE HON MR JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicant commenced this application under section 98 of the Civil Procedure Act, section 33 of the Judicature Act, Order 9 rule 20 (1) (a) and rule 21 of the Civil Procedure Rules seeking to set aside ex parte proceedings in Civil Suit Number 832 of 2007 inclusive of proceedings on 29 April 2013, 2nd of May 2013 and 13th of May 2013. The Applicant also seeks leave to be heard in defence to the suit and to cross examine the Plaintiff’s witnesses. The Applicant prays that the witness statements of its witnesses are admitted as their evidence in chief and for them to be cross examined on the witness statements (at the option of the plaintiff’s counsel). Lastly the Applicant seeks an order for costs of the application.
The grounds of application are set out in the notice of motion. They are that the non appearance of the Applicant/Defendant or the Counsel on 29 April 2013, 2nd of May 2013 and on the 13th of May 2013 was occasioned by the mistake and lapses on the part of the previous Counsel, Messieurs Kituuma-Magala and Company Advocates. Secondly the Applicants were abandoned by their previous Counsel who failed to communicate hearing dates and provide effective advice on the consequences of non-appearance. Thirdly the Applicant’s application was filed without delay and the Applicant is not guilty of dilatory conduct. Fourthly the Applicant shall suffer irreparable financial damage and loss if it does not get the chance to test or disprove the Respondents/Plaintiffs evidence and adduce its own evidence before judgement is delivered. Finally the Applicant avers that is just and equitable that its application is granted.
The application is supported by the affidavit of Anatoli Kamugisha, the managing director of the Applicant/Defendant. He avers that he was present in court on the 13th of May 2013 when the court rejected the application of Messrs Okello - Oryem and Company Advocates for adjournment and fixed the suit for judgement on 21st of June 2013. On the 2nd of May 2013 when the suit came for hearing, the previous lawyers Messrs Kituuma – Magala and Company Advocates were not present and neither was any official from the Defendant Company present. The Applicant was unaware of the court directions to file witness statements and that the matter was fixed for judgement. On the 2nd of May 2013 the former lawyers wrote to the Applicant returning company documents to be relied upon in defence of the suit but neglected to inform the Applicant that the matter had been fixed for hearing or came up for hearing on the same day. The managing director discovered from the court record that the previous lawyers were aware of the hearing date and court directions when the hearing was adjourned to the 2nd of May 2013. Facts from the court record reveal that on 29 April 2013 the Respondents witness statements were admitted on court record as evidence in chief. He avers that it is necessary that they are cross examined on the witness statements. On 10th of May 2013, the Defendant Company filed witness statements of four witnesses but they are yet to be admitted on the court record. Upon service on the Respondents Counsel, the witnesses may be cross examined by the Plaintiff's Counsel. It is also vital for the Defendant's documents to be admitted on court record.
The managing director further avers that it was not due to any dilatory conduct of the Applicant/Defendant Company that the matter proceeded the way it did and the Defendant has always been eager to defend the suit and counterclaim against the Respondent. The defence has merit and the Defendant can prove that it overpaid the Respondent/Plaintiff for shoddy work and building materials which were converted in breach of contracts executed between the parties.
The Respondent opposes the application and the grounds thereof are contained in the affidavit of Obed Ahimbisibwe. The assertion in the affidavit is that the Applicant was given all possible time to prosecute its defence but did not use it effectively. The quantity surveyor proposed by court was chosen by the Applicant and the parties agreed but the quantity surveyor failed to execute his work because of lack of cooperation from the Applicant. The suit was finally fixed for hearing and the Applicant did not attend court as required. Several correspondences from the Applicant's former lawyers lacked seriousness on the part of the Applicant. Furthermore Counsel Kituuma - Magala gave sufficient notice to the Applicant of court hearings which were ignored by the Applicant. Furthermore they filed a notice of withdrawal on 16 April 2013 and the Applicant had ample time to engage another Counsel. On the second of May 2013 Counsel appeared in court and applied for adjournment which was refused because the case had been fixed on that date after a court order for last adjournment and for it to proceed. The Applicant instead hired new advocates who once again sought an adjournment. The court record reflects what was happening. The application had been filed after so much in ordinate delay and was a sign of dilatory conduct.
The Applicant was represented by Messrs Okello – Oryem Advocates while the respondent was represented by Messrs Byamugisha Gabriel and Company Advocates. The Applicant filed written submissions in support of the application. After setting forth the facts summarised above, the Applicant particularly relies on the facts and grounds contained in the affidavits of the Applicant's managing director Mr Anatoli Kamugisha.
As far as the law is concerned the Applicant's case is that order 9 rule 20 (1) (a) and 21 of the Civil Procedure Rules read together provide that where the Plaintiff appears and the Defendant does not appear when the suit is called for hearing, and the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex parte. However where the court has adjourned the hearing of the suit ex parte, the Defendant at or before the hearing appears and assigns good cause for his or her previous nonappearance, he or she may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he or she had appeared on the day fixed for his or her appearance. Secondly mistakes or lapses on the part of an advocate should not be visited on the litigant and constitutes good cause under order 9 rules 20 and 23 of the Civil Procedure Rules. Counsel relied on Supreme Court Civil Appeal Number 14 of 2009 between Capt Philip Ongom and Catherine Nyero Owota where it was held that the cause that prevented the appellant from appearing at the hearing was that he was not aware of the hearing date because his former advocate who was served with hearing notice did not disclose the date to him. It is an elementary principle that a litigant who is represented by an advocate is bound by the acts and omissions of the advocate in the course of representation. In applying the principle, the court must exercise care to avoid abuse of the system. Consequently the advocates conduct in the pursuit of his instructions can have consequences to be borne by a litigant. The litigant however ought not to bear the consequences of the advocates default unless the litigant is privy to the default. The court also held that the citizen’s right of appeal should not be blocked on the ground of his lawyer’s negligence when he has given timely instructions to the lawyer. The litigant’s right to a fair hearing enshrined in article 28 of the constitution should not be defeated on the ground of his lawyer’s mistakes. Counsel further relied on the case of Nicholas Roussos vs. Gulamhussein Habib Virani and Another Civil Appeal number 9 of 1993 (Supreme Court) where the Supreme Court gives several illustrations of what amounts to sufficient cause. It was held that mistake by an advocate though negligent may be accepted as sufficient cause. Furthermore ignorance of procedure by an unrepresented Defendant may amount to sufficient cause. Illness by a party may also constitute sufficient cause. Counsel prayed that the court finds that sufficient cause was disclosed by the applicant’s evidence.
In reply the Respondent's case is that the Applicant is guilty of dilatory conduct in failing to give Counsel proper instructions which rendered him unable to prosecute the Applicant’s case. The nonappearance of the Applicant company or the Counsels on various dates was not caused by mistakes or lapses of Counsel because the Applicant was kept fully posted on the court appearances by the former Counsel until the 16th April 2013 when the former Counsel withdrew from the conduct of the case.
The evidence is that on 15 April 2013, the Applicant was represented in court by their legal officer Mr Segujja Mustapha who informed court that the former Counsel Mr Kituuma - Magala had lost interest in the matter. This was followed by a notice of withdrawal which was filed on 16 April 2013 by the said former lawyers. Nevertheless Counsel Kituuma - Magala appeared in court record on 29 April 2013. In the presence of Counsel Segujja Mustapha, the case was given a last adjournment and fixed for 29 April 2013. On 29th of April 2013, Counsel Kituuma - Magala came personally and applied for adjournment which was rejected by the court. The Respondent was allowed to open its case. Hearing was adjourned to the 2nd of May 2013 and this was done in the presence of Counsel. Consequently the date was well known to the Applicant as it had been previously represented by Counsel Kituuma - Magala. On the 2nd of May 2013, the case was closed and the court fixed the 13th of May 2013 as a mention date to file submissions and get another date for judgement. On the 13th of May 2013, the Applicant came with new Counsel who applied orally to reopen the case and they were requested to make a formal application.
All along the Defendant and managing director of the Defendant/Applicant knew of all the hearing dates and never wished to participate in the proceedings. Counsel referred to the letter of the 2nd of May 2013 which puts the blame on the Applicant. Counsel further submitted that it is false to say that the Applicant was abandoned by the previous Counsel. The previous Counsel complained about lack of cooperation and poor planning on the part of the Applicant. Several correspondences over the lack of cooperation by the Applicant are on court record on the question of determination of the issues by the Quantity Surveyor. Counsel submitted that it is the Applicant which abandoned its case and not his Counsel. Furthermore the application was not filed without delay. The order to proceed ex parte was granted on 29th of April 2013 and application to set aside the ex parte proceedings was filed on the 24th of May 2013 despite the fact that there was a pending judgement. Consequently this amounted to dilatory conduct. On the issue of whether the Applicant would suffer irreparable financial damage, the Applicant had the opportunity to adduce its own evidence and cross-examining the Respondent's witnesses. However the Applicant slept on its rights.
The Respondent’s suit was filed on 7 November 2007. It was initially handled by Honourable Lady Justice Stella Arach Amoko. On 14 July 2011 when the matter was mentioned before me, the Defendants Counsel moved the court for dismissal of the suit for want of prosecution under order 17 rules 6 of the Civil Procedure Rules. The suit was dismissed under order 9 rule 22 of the Civil Procedure Rules for nonappearance of the plaintiff. Subsequently the Respondent filed Miscellaneous Application number 451 of 2011 seeking to set aside the dismissal of the suit. The Defendants Counsel did not object to the application and on 16 November 2011, the Respondent/Plaintiff's application was allowed with costs to abide the outcome of the suit.
Since that time attempts were made to have the suit progress to hearing but with no success. At the scheduling conference, the court made an order by consent of the parties that a quantity surveyor will be appointed by the parties to establish the claims of the Plaintiff which mostly concerns materials used and work done. After several attempts, a quantity surveyor was appointed by the parties but never got to visit the site for one reason or other until on 7 January 2013 when the Plaintiff's Counsel moved the court to fix the case for hearing. In any case the case was fixed under the special session of the Commercial Court division to dispose of backlog of cases which have overstayed on the pending list without proceeding.
I have carefully examined the record of proceedings in addition to the affidavit evidence for and in opposition to the application. On 19 April 2012, Counsels reported that there was letter stating that the Applicant had chosen a senior officer from the Minister of Works to be the quantity surveyor appointed as a referee or arbitrator in the matter under section 27 of the Judicature Act and by consent of the parties. The case was then fixed for mention on 23 May 2012 foor the response of the Plaintiff/Respondent to the nomination of the quantity surveyor. The record reveals that on 23 May 2012 the parties were to report on the appointment of the quantity surveyor. The Plaintiff's Counsel Gabriel Byamugisha appeared in court but the Defendants Counsel was absent. The matter was further fixed for 28 June 2012. On 28 June 2012, the Defendants Counsel Harriet Magala appeared while the Plaintiff's Counsel was before another judge. The suit was fixed for mention on 12 July 2012. On 12 July 2012, Harriet Magala appeared for the Defendant while another Counsel was on holding brief for Byamugisha Gabriel. The court was informed that the quantity surveyor had not responded to the request of the parties. The quantity surveyor required a formal instruction therefore the court fixed the matter for mention on 6 September 2012. On 6 September 2012, Harriet Magala appeared for the Defendant and the Plaintiff was in court. However, the Plaintiff's Counsel had suffered some illness and the matter could not proceed. It was fixed for 8 November 2012. On 8 November 2012 Byamugisha Gabriel appeared in court while the Defendants Counsel Harriet Magala was not in court. The court further adjourned to the 22nd of January 2013. There is no record about what occurred on 22 January 2013. However the record shows that the matter was mentioned on 25 March 2013 with both Counsels in court. Both Counsels were informed that this suit had been included in the least for quick disposal in a special session of the commercial court division. It was therefore fixed for hearing on 15 April 2013 at 10 AM. The parties were required to prepare a joint trial bundle and file witness statements by 10 April 2013 to be served on either side. Hearing by way of cross examination and re-examination of witnesses was fixed for the 15th of April 2013. On 15th April 2013, the Plaintiff’s Counsel Byamugisha Gabriel appeared in court while Harriet Magala was not in court and Counsel Mwesigwa Noah appeared on her behalf. The information he gave court was that Counsel had lost interest in the handling the case and was withdrawing from conduct of the case while the Applicant intended to instruct another Counsel. The court granted an adjournment on the ground that the Defendants Counsel had dropped out at the 11th hour. An order was made that the adjournment would be the last adjournment and the case was to proceed by all means next time. The hearing of the suit was adjourned to 29 April 2013. On 29 April 2013, Counsel Kituuma - Magala appeared in court and made representations to court on behalf of the Defendant while Counsel Byamugisha Gabriel represented the Plaintiff. The Defendants Counsel specifically applied for an adjournment at the request of the Applicant/Defendant. Adjournment was refused on the ground that the last time the case came for hearing Mustapha Segujja, the legal officer of the Defendant was in court when the matter was given last adjournment and Kituuma Magala had already given notice on court record of withdrawal from conduct of the suit on behalf of the Defendant. Consequently the suit proceeded and was adjourned for further hearing to the 2nd of May 2013.
The order to proceed ex parte was granted by the court under the provisions of Order 9 rule 20 of the Civil Procedure Rules when the Defendants Counsel had given notice of withdrawal from conducting the case and the hearing was given a last adjournment in the presence of legal officer of the Defendant, one Mustapha Segujja. However Mustapha could not conduct the defence and needed time to give instructions to counsel. Subsequently, the Defendant’s Counsel did not appear and the suit proceeded ex parte. Upon withdrawal from conduct of the Defendants defence, Counsel Kituuma - Magala no longer had audience when he applied for adjournment. The Defendant was therefore not represented by counsel when the suit proceeded ex parte. Furthermore the proceedings clearly reveal that the suit did not progress sometimes when the plaintiff’s counsel was absent and sometimes when the defendants counsel was absent. Each time a reason was assigned for adjournment and adjournments were granted for good cause.
I have considered the Respondents/Plaintiffs objection to the Defendant’s prayer to defend this suit at this stage of the proceedings. The first ground of opposition was that the Applicant had at all times not made it easy or possible to prosecute the case and did not use the time allocated by the court effectively (paragraphs 2 to paragraph 6 of the affidavit in reply of Mr Obed Ahimbisibwe the Plaintiff refers). On this ground, where a suit proceeds ex parte under the provisions of order 9 rule 20 (1) (a) of the Civil Procedure Rules, the court does not deal with the past behaviour of the Defendant but with the nonappearance of the Defendant when the suit is called for hearing. Sub rule 1 specifically provides as follows:
"(1) Where the Plaintiff appears and the Defendant does not appear when the suit is called on for hearing –"
The words to emphasise are "when the suit is called on for hearing". A strict application of the rule leads to the only conclusion that the consideration on whether to proceed ex parte or not is based on the particular time when the suit is called on for hearing. Whatever could have proceeded in the past is not material. What is material is provided for in the subsequent paragraphs of the sub rule. For instance under sub rule (a) if the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex parte. So the material question for consideration is whether the Defendant had been given notice of the hearing date and particularly the date when the suit is called on for hearing. When the Defendant does not appear, that is when the court may make an order to proceed ex parte. Consequently the grounds in opposition to the application based on the past conduct of the Defendant should not bias the court in considering whether the Defendant was prevented by sufficient cause or that the hearing notice was not duly served in terms of Order 9 rule 27 of the Civil Procedure Rules from appearing on the date when the suit was called on for hearing.
The second basis of the Respondents objection to the application are contained in the affidavit of Obed Ahimbisibwe in reply and particularly in paragraphs 8, 9, 10, and 11. The first leg of the second ground is that the former Counsel Mr Kituuma - Magala gave adequate notice to the Applicant about the court hearings but the Applicant ignored it. This is bolstered by the fact that the, Counsel filed a notice of withdrawal from the conduct of the suit on 16 April 2013 and the Applicant had ample time to engage another Counsel. That the Applicant was aware but instead hired new advocates who once again sought an adjournment after an adjournment applied for by the former Counsel on the 2nd of May 2013 was refused. I have further considered the basis of the objection to the Applicant’s application on the ground that the Applicant had sufficient notice of the next hearing date but did not appear. The court refused adjournment on the application of Counsel Kituuma - Magala on the 2nd of May 2013 after Counsel filed a notice of withdrawal on 16 April 2013. The words of the notice of withdrawal read as follows:
"Take Notice that we have previously acted for the Defendant in this case, and we do hereby withdraw from the record and no longer act for the Defendant in this matter."
The former Counsels signed the notice of withdrawal on 15 April 2013 and filed it on court record on 16 April 2013. Without any further formal notice, Counsel Kituuma - Magala appeared on the 2nd of May 2013 and sought an adjournment on behalf of the Defendant. Obviously he was no longer Counsel on record. The adjournment was refused because the court had made an order that the last adjournment was the very last adjournment and the case would proceed. For purposes of the record therefore, the Defendant was not represented by Counsel. On the other hand Counsel Mustapha Segujja was a legal officer and could not conduct the case. He had not instructed other counsel on behalf of the Applicant.
Secondly, the Respondents Counsel relies on annexure "A" being a letter from Messieurs Kituuma - Magala and Company Advocates for the submission that the former advocates of the Applicant/Defendant gave sufficient notice to the Defendant about court hearings. Annexure "A" to the affidavit of Obed Ahimbisibwe is a letter dated 2nd of May 2013. The letter is written to the Managing Director of the Applicant and was filed on court record on the 8th of May 2013. It refers to a telephone conversation held with Counsel Harriet Magala on 29th of April 2013. It does not disclose the details of the telephone conversation as to whether the Defendant had been notified of the next hearing date. Part of the letter reads as follows:
"Please note that whereas the court record states that we have withdrawn from prosecuting this matter as of 16th of April 2013; between you and our Kituuma - Magala PG Esq., a compromise was reached that we prepare a trial bundle to enable the case proceeded.
You undertook to permit with our Harriet Magala on 30 April 2013 to provide relevant information but to date neither you nor any authorised officer from your company that knows the genesis of this suit has attended our Chambers.
We were informed by Counsel for the Plaintiff that submissions should be filed by the 10th of May 2013. Please be put on notice that lack of cooperation and poor planning on your part shall not constitute an emergency on ours.
We are hereby enclosing the original documents for your in-house Counsel to prepare the requisite documents within the stipulated time since we are informed that he has been attending court since we withdrew from representing you.…"
It should be noted that by this time the suit proceeded and had been adjourned for further hearing on the 2nd of May 2013. The letter was written on the 2nd of May 2013. This was the date of the second hearing and the Plaintiff closed his case and court adjourned to receive written submissions. It is apparent from the letter of the former Counsels of the Defendant that by this time, they had not instructed another Counsel. Even if they had instructed other Counsel, the former lawyers had not yet handed over the file and material documents to the new Counsel so as to enable the new Counsel properly take over the conduct of the Defendants defence. There is further no evidence that the Defendant was aware of the dates or the withdrawal of its Counsel. Moreover the reference to poor planning or cooperation takes about the future and not the past in the following words: “Please be put on notice that lack of cooperation and poor planning on your part shall not constitute an emergency on ours.” In other words the former counsel was giving notice that if they did not plan properly to proceed in future or cooperate, they should not be blamed. The letter is therefore not evidence of any past poor cooperation or lack of planning.
The evidence of Mr Kamugisha Anatoli is that the Defendant was not aware that it was supposed to file witness statements. That the previous lawyers had written to him on the 2nd of May 2013, returning documents to be relied upon in defence of the suit but neglected to inform him about the next hearing date. The record shows that there was no next hearing date. Furthermore it is apparent that the former lawyers informed the Defendant that written submissions would be filed on the 10th of May 2013. However this is the date when the Defendant filed its witness statements. Subsequently, after the crucial events had taken place, the Defendant instructed Messieurs Okello – Oryem and Co Advocates to take over the conduct of the defence. The new Counsels could only act effectively after obtaining the record and documents from the former Counsel. They could only have done this after the 2nd of May 2013 after the Plaintiff had closed its case.
I am therefore satisfied that withdrawal of counsel and the change of advocates by the defendant had prejudicially affected the conduct of the Defendants defence. The material period to be considered was the period when the Defendant ought to have filed witness statements and produced them for cross examination. During this time, there was no crucial coordination between the Defendant and its Counsel as reflected by the letter dated 2nd of May 2013 from the former Counsel. In those circumstances, the two elements in order 9 rule 27 of the Civil Procedure Rules, namely whether the Defendant was prevented by sufficient cause from appearing when the suit was called for hearing and the fact that they had effective notice for the appearance of witnesses for cross examination or the filing of witness statements based on the procedure adopted when the suit was called for hearing are present.
I have further considered the principles of law to be applied and which have been addressed by Counsels. An order to proceed ex parte is a temporary order and the Defendant is entitled to a hearing notice when the suit is next called for hearing. This was the holding of the Supreme Court in the case of Kanyabwera v Tumwebaze  2 EA 86. I particularly refer to the judgement of Tsekooko JSC at page 95 where he considered order 9 rule 17 (1) (a) (which is now the revised Order 9, rule 20(1)(a)) of the Civil Procedure Rules, the applicable rule upon which the court proceeded ex parte in this matter. Tsekooko JSC held that the rule is not intended to have indefinite ex parte hearing without making the other party aware. He said:
“I do not believe that Order 9, rule 17(1)(a) is intended to allow a party to have indefinite ex parte hearing without making the other party aware of this.
Order 9, rule 17(1) (a) reads as follows:
“Where a Plaintiff appears and the Defendant does not appear when the suit is called on for hearing:
(a) If the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex parte.”
A trial judge is given discretion in deciding whether or not to grant ex parte hearings. Granting an ex parte hearing should, in my opinion, enhance expeditious disposal of a case, but not to give further delay.
As ordering an ex parte hearing is discretionary, it ought to be granted with caution therefore it ought not to be granted to a party which is, itself, not ready as was the case here.
I think that rule 17(1) (a) should be read together with rule 18, which states:
“Where the court has adjourned the hearing of the suit ex parte, and the Defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”
Whilst courts should promote expeditious hearing and disposal of cases and therefore should not have their work delayed by absence of parties or their witnesses, presiding trial judges would do well to be aware that rules 17 and 18 give court discretion to do justice.”
In other words it is the opinion of the honourable judge of the Supreme Court that where an ex parte hearing is ordered and the Plaintiff does not complete hearing the case, the court should give notice to the Defendant for the next hearing so that the Defendant is heard in the subsequent proceedings.
This is exactly the situation in this case. The Plaintiff was permitted to proceed ex parte and did not complete calling his witnesses. The hearing of the suit was adjourned to another date. The ground upon which the court refused further adjournment was the placing of the suit on the expeditious disposal list. Subsequently the Applicant filed the application within a month. The notice of withdrawal of the Defendants Counsel was filed on court record on 16 April 2013. It was endorsed by the court on 18 April 2013. The written witness statements of the Plaintiff were filed on 9 April 2013. The Plaintiff’s written submission in support of the case was filed on the 10th of May 2013. Furthermore, the Defendants witness statements were filed on 10th of May 2013. The case proceeded ex parte on 29 April 2013. It was subsequently adjourned to the 2nd of May 2013 and completed for purposes of quick disposal.
On the 2nd of May 2013 in the letter annexure "A" to the affidavit of the Managing Director Mr Anatoly Kamugisha Messieurs Kituuma Magala and Company Advocates wrote to the Defendant handing over witness statements which were meant to be filed on court record on behalf of the Defendant. Subsequent to this letter the Defendant filed witness statements on the 10th of May 2013. Subsequently the Plaintiff filed a supplementary witness statement on 23 July 2013.
In the circumstances however, the Supreme Court authority is to the effect that the Defendant was entitled to a hearing subsequent to the Plaintiff having proceeded ex parte. The Defendant was not given an opportunity in the subsequent hearing because the case was for quick disposal. Moreover the trial was through witness statements. Secondly I do not see how the Plaintiff would be prejudiced in the circumstances of the case. The case has since been taken off the list for expeditious disposal of over delayed cases and there is no need to further rush the proceeding. The Plaintiff had not proceeded since 2007 until the case was heard in 2013. A delay of two months cannot further prejudice the Plaintiff. In any case, any injustice caused can be compensated by an award of costs for the delay.
In my humble opinion, this is a case where there was a change of advocates in circumstances where the Defendant could not have filed witness statements which were in the possession of the Defendants Counsel. Upon withdrawal of the Defendants Counsel, the Defendant was entitled to instruct other Counsel. The Defendant indeed instructed other Counsel who took over the conduct of the Defendant's case and filed an application to set aside the order to proceed ex parte. By the time the new Counsels took over the conduct of the Defendants defence, they were not ready to proceed and could not have had the order to proceed ex parte set aside.
In the circumstances, the suit will be fixed for hearing and the Defendant would be given an opportunity to cross examine the Plaintiff’s witnesses on the witness statements. The Plaintiff will also be entitled to cross examine the Defendant's witnesses after the witness statements have been formally admitted in evidence. The submissions of the Plaintiff's Counsel will be withdrawn and the Plaintiff's Counsel will have another opportunity to finally address the court after cross examination of witness of both parties and re-examinations have been completed.
The order to proceed ex parte is accordingly set aside. Costs of this application are awarded to the Respondent in any event.
Ruling delivered this 16th day of August 2013.
Christopher Madrama Izama
Ruling delivered in the presence of:
Byamugisha Gabriel for the respondent
Kavuma Geoffrey for the Applicant
Respondent in court
Applicant not in court
Charles Okuni: Court Clerk
Christopher Madrama Izama
16th August 2013