THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCEALLANEOUS APPLICATION NO. 906 OF 2013
ARISING FROM MISC. APP NO. 003 OF 2013
ARISING FROM CIVIL SUIT NO. 542 OF 2012
TOTAL (U) LTD:::::::::::::::::::::::::::::::RESPONDENT/PLAINTIFF
BEFORE THE HON. JUSTICE HENRY PETER ADONYO
This application was brought under Order 9 Rule 23 and Order 48 Rules 1, 2, 3 of the Civil Procedure Rule and Section 98 of the Civil Procedure Act.
The application primarily seeks for an order setting aside the dismissal of Misc. Application No. 003 of 2013 arising from the above suit and a reinstatement of the said application for hearing by this Honourable Court.
The application is supported by two affidavits deponed by the Applicant and a rejoinder by Jonathan Abaine Bulegeya, the Applicant’s previous lawyer.
On record also is an affidavit in reply to the Notice of Motion sworn by Mr. Kamya Titus an advocate practicing with M/s Sekabanja & Co. Advocates for the Respondent.
In addition, the Applicant also seeks to apply to amend the application so as to include the prayer for setting aside the ex parte decree passed against the Applicant under the provisions of Order 36 Rule 11 of the Civil Procedure Rule on the basis that by the time this application was filed the decree had not yet been sealed and since under the provisions of Order 6 Rule 19 of the Civil Procedure Rule this Honourable Court has powers to allow the Applicant such an amendment at any time in such manner and so such terms as may be just as may be necessary for purposes of determining the real questions in controversy between the parties, then it should be allowed.
The Applicant opines also that case law has provided the guideline as regards such amendments to the effect that they may be allowed provided the amendment does not prejudice the adverse party so long as Respondent would have an opportunity to reply hence no injustice would be occasioned.
It is the Applicant case that on the 4th January 2013, she filed Misc. Application No. 003 of 2013 seeking leave to appear and defend High Court Civil Suit No. 542 of 2012.
That application was fixed for hearing on three different occasions but for one reason or another, it could not take off but that finally when it came up on the 14th day of October, 2013 at 9:00 am, the Applicant’s counsel, Jonathan Abaine was absent in court and the Respondents’ counsel who was present sought and was granted a dismissal of the Application on the basis of want of prosecution. That the Applicant seeks to use the current Application to among others a reinstatement of Misc Appl. No. 003 of 2013 and a setting aside of the ex parte decree against her. This Application is supported by her affidavit as well as supplementary and rejoinder affidavits by Mr. Jonathan Abaine, the Lawyer who had personal conduct at the time when Misc. App. No. 003 of 2013 was dismissed.
The gist of the grounds in those affidavits on record but more particularly that Counsel Jonathan Abaine of M/s Abaine Bulegeya & Co. Advocates who formerly had instructions to handle the matter arrived late at court due to slow traffic and yet he had not notified the applicant, of the date of hearing her application, the Applicant was and has always been willing and interested in participating in the proceedings seeking leave to defend the claim against her in Civil Suit No. 542 of 2012 given that the claim against her was filed in bad faith with the objective of unjust enrichment of the Respondent, the Applicant had overwhelming chances of success in the application which was filed in Court on the 4th day of January 2013, that the Applicant would suffer substantial loss/ irreparable injury if Misc. Appl. No. 003 of 2013 was not reinstated and the ex parte decree set aside given that she will have been condemned unheard on her plausible defence and that the reinstatement of the said application would avoid multiplicity of suits and it was in the interest of Justice that the said application be reinstated, heard and determined on its Merits.
It is the Applicant’s argument that in applications such of this nature, the major issues for the court to consider were whether the Applicant was prevented by sufficient cause to attend court when the matter was called for hearing and whether the Applicant had a credible defence to warrant grant of the prayer to set aside the ex parte decree and the reinstatement of the application for leave to appear and defend.
That this position the gist of Order 36 rule 11 of the Civil Procedure Rule which provides that before a decree could be set aside if the applicant showed good cause that prevented him from applying for leave to appear and defend in time and that “Good cause” was could be used interchangeably with “Sufficient cause”.
The Applicant relied on a number of authorities which defined “Sufficient cause” to mean the inability or failure to take a particular step within a particular time with the Supreme Court of Uganda case of Nicholas Roussos versus Gulamhussein Virani SCCA N0. 9 of 1993 laying down some of the instances which may amount to sufficient cause to include mistake of an Advocate even if negligent, ignorance of procedure by an un represented party and illness of a party.
The Applicant further cited the case of Banco Arabe Espanol versus Bank of Uganda SCCA NO. 8 of 1998 where Justice A.H ODER, JSC while citing Patrick Njoroge Ngugi versus Livingstone Mitho (1955) 22 EACA 43, held that where a suit is dismissed the plaintiff may apply to set aside the dismissal but court’s discretion to do so is hinged on sufficient cause being shown.
The Applicant therefore in support of the instant Application states in paragraphs 3 and 4 of her affidavit that she had always been willing and interested in participating in the court proceedings but that on that particular day she did not attend the hearing of the application because she was not aware or informed of the hearing date by her Advocate Mr. Abaine Jonathan who was late for court on the day the application was called and dismissed. And that since her counsel admits failing to notify the Applicant because according to him it was not necessary those were affidavit matters which could be handled without her attendance as indicated by paragraphs 4 and 5 of his supplementary affidavit and paragraph 6 and 7 of his affidavit in rejoinder therefore then that had the applicant been in attendance, she could have informed court of her counsel’s absence or even better still sought an adjournment to another date.
That as a matter of fact the Applicant was liable to suffer the real consequences of the ex parte decree yet she was at no fault at all as shown above as the truth of the matter was that there was negligence on the part of her former counsel who absented himself from court and at the same time never informed her to be in court on date in question.
The Applicant points out that even this aspect of negligence had not been rebutted by the Respondent at all.
To substantiate her point on the issue of negligence of counsel, the Applicant cites many authorities that it is now settled law that negligence/mistake of counsel ought not to be visited on the litigant. These included the case of Mugo versus Anira  EA 481; Shanti versus Hindocha and Others  EA 120, Haji Nurdun Manaru versus Ben Kiwanuka SCCA No. 12 of 1992 and the holding in Joseph Muluta versus Sylvano Katama S.C.C.A No. 2 of 1999, where G.W Kanyeihamba JSC restated this point of that; “it is now trite law that a vigilant litigant should not be penalized for the dilatory conduct of his Advocate or of the Court if he or she has not directly or indirectly contributed to it”
The Applicant therefore argues that the substance of her instant Application that having instructed her Advocates to file and prosecute Misc. Appl. No. 003 of 2013 who did so but was absent when the said Application came for hearing and since her advocate had not notified her of the hearing date, then this Application should be allowed as in all these series of events there was not the slightest fault on her part whether direct or indirect instead it was the her former Advocate who was guilty of the dilatory conduct which led lead to dismissal of Misc. App. No. 003 of 2013.
The Applicant further asked court to consider her as honestly wishing to attend court but did not do so as she was not notified by her counsel on the on the basis of the decision in Nakiride Namwandu versus Hotel International  HCB 385, a case of similar nature as hers where the court when considering the application for reinstatement of a suit which had been dismissed for non attendance held that in order to determine sufficient cause, the issue was whether a party honestly wanted to attend court and did his best to attend was of relevance.
The Applicant opined that from the behavior as clearly explained above, the court should consider that she deserves to be considered for clemency to give her chance so that her Application for leave to appear and defence reinstated and the ex parte decree set aside.
The Applicant concludes that she had shown sufficient reasons to warrant the setting aside of the ex parte decree and the order of dismissal of Misc. Appl. NO. 003 of 2013 and prayed that the same be replaced by an order reinstating Misc. Appl. No.003 of 2013 to be heard on merits with costs to be in the cause.
On the other hand, the Respondent raises several points of law which in its opinion would disposes of this Application.
Firstly this Application was bad in law as far as it sought to reinstate Misc. Application No. 003 of 2013 yet there was a judgment and decree on court record which this application does not seek to set aside. That it was an undisputed fact that subsequent to dismissal of Misc. App. No. 003 of 2013, judgment was entered for the Respondent on the main suit in accordance with Order 36 of the Civil Procedure Rules. The Respondent submitted that inspite of that fact the Applicant was aware that there was a judgment and decree on record, the Applicant chose not to apply for to have it set aside first in utter disregard of the provisions of the law which should have been followed. That the right procedure would have been for the Applicant to utilize Order 36 Rule 11 of the Civil Procedure Rule instead of seeking for reinstatement order which had already been over taken by event and therefore the Applicant’s failure to comply with this procedure rendered the instant application incompetent.
Additionally, the Respondent, through its counsel, pointed out that learned counsel for the Applicant had through his submission included the prayer for setting aside decree and judgment which prayer was not part of the pleadings in the Application before the court. That this would tantamount to a purported amendment of the Notice of Motion by counsel at submission level without the leave of court which was untenable in law as there was no automatic right of amendment in the circumstances of this case. That such failure to obtain leave of court rendered all attempts to amend the pleadings via submission, illegal as the grounds in support of Notice of Motion were contained in the affidavit in its support which could not be amended through submissions.
For this position, Counsel for the Respondent relied on the case of Reliable Trustees Ltd & 3 Ors versus George Semeguya & 5 Others HCCS No. 601 /92 where Ouma J as he then was stated that , “I have spent some considerable time trying to find law, rule or case authority to indicate that an affidavit can be amended by way of submission and I have failed to lay my hands on any and in the premise I do agree with the argument by counsel for the Respondent/ plaintiffs that since there is no law or rule of procedure by which an affidavit can be amended in that manner then the purported amended of the affidavit illegal…”
On the basis of the above, Counsel for the Respondent submitted that since the principle contained in the above decision was still good law then the same should be applied to the instant matter and that this Honourable court should proceed to disregard any purported amendment of Notice of Motion by the Applicant.
In addition , Counsel for the Respondent pointed out that in view of the fact that Counsel for the Applicant submitted on the issue for setting aside judgment which was not covered in the application before this court, then that would amount to a departure from pleadings in contravention of known procedure of law as was held by the Supreme Court in the case of Twiga Chemical Industries versus Viola Bamusedde (T/A Triple B. Enterprises) SCCA 16 of 2014, where Kanyeihamba JSC as he then was stated that, “I think that the rule that parties are bound by their pleadings has remained the same…”
Counsel for the Respondent therefore urged this honourable court to take note of that Supreme Court authority to find that by the Applicant’s Counsel submitting on a prayer which was not included in the Notice of Motion as violating the rule against departure from pleadings which renders such a submission a nullity in law with the consequences that this would also amount to leading evidence from the bar.
I have considered the submissions from both sides. I am of the opinion that the points of law raised by learned counsel for the Respondent are those which cannot be ignored by this honourable court as they go to the root of this Application. The Applicant should have taken into account that there was already judgment and should have first sought to have it set aside before seeking to have the said Application reinstated. That being so, I would agree with the submission of the respondent and find that this Application is bad in law and is an abuse of court process. The proper procedure should have been followed. One cannot have his cake and have it at the same time.
In the premises, since the Applicant has not made the proper Application, I would dismiss this Application with costs.
Henry Peter Adonyo
29th May 2014