THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
MISCELLANEOUS APPLICATION NO 517 OF 2014
(Arising out of Civil Suit No. 453 of 2011)
VIDEO WORLD ENTERTAINMENT
JEAN NAMMI & ANOTHER:::::::::::::RESPONDENTS/DEFENDANTS
BEFORE THE HON. LADY JUSTICE HELLEN OBURA
This is a ruling in an application brought under S.98 of the Civil Procedure Act Cap 71, and Order 9 Rule 23 and Order 51 Rules 1 & 2 of the Civil Procedure Rules (CPR) SI 71-1. The applicant is seeking for orders that Civil Suit No. 453 of 2011 which was dismissed on 22/1/2014 under Order 9 Rule 22 of the CPR be reinstated by setting aside the dismissal order. Applicant also seeks fresh summons to be issued to the defendant/respondent, and for costs of the application to be in the cause. The application is supported by affidavit sworn by the applicant’s director Mr. Kasumba Yasin on 18th June 2014 and that in rejoinder filed on 3rd December 2014.
The brief grounds of this application as contained in the Notice of Motion and the affidavit in support are that; the applicant and his counsel had sufficient cause for non-appearance when the matter was called for hearing as counsel for the plaintiff was upcountry to check on his sick father and inadvertently forgot about the hearing and the deponent also inadvertently missed the hearing. Further, that the 2nd defendant/respondent made himself unavailable for service of court process on an amended plaint adding him as a necessary party to determine the matter in dispute, until of recent and subsequently on 27th day of May 2014, counsel for the applicant/plaintiff applied for issue of fresh summons as per Annexure “F1” and “F2”.
Another ground is that there are two parties all still claiming ownership of copyrights against the other to wit: the plaintiff/applicant and the 1st defendant/respondent each with an agreement from the 2nd defendant/respondent and it is in the interest of justice that the order for the dismissal of Civil Suit No. 453 of 2011 be set aside and the case be heard on its merits and the matter settled as to the rights of the parties finally.
It was averred that there was a possibility of an out of court settlement since the only issue was the mount to be paid by the 1st defendant/respondent to the plaintiff and the matter was still on negotiations pending the outcome. Lastly, that mistake of counsel should not be visited on the client and so it is just and equitable that this application should be granted.
An affidavit in reply was sworn by JEAN NAMMI, the 1st defendant/respondent who deposed that the application is based on lies and ought to be rejected and dismissed with the contempt that it deserves. She averred that upon discovering that the main suit had been dismissed with costs on 22/1/2014 for want of prosecution, the applicant sought to avoid appearing before the same trial Judge in an application for setting aside the same and instead filed a fresh suit on exactly the same subject matter, vide HCCS No. 297 of 2014 (see Annexure “A”).
Further that the fresh suit was allocated to another Judge in the Division and when the respondent applied for its dismissal or striking out as it was barred by law the applicant withdrew it and filed this application to set aside the dismissal of the suit. It was further deposed that the order of the CPR under which the fresh suit was withdrawn provides for the stay of any subsequent suit based on the same cause of action until the costs of the discontinued suit have been paid but to date the applicant has not paid costs of the discontinued suit, and therefore the present application ought to be stayed.
She deposed further that the applicant and his advocate have not acted with due diligence because annextures “F1” & “F2” to the affidavit in support written and filed after the main suit had been dismissed are an abuse of court process. She averred that the suit agreement gave the applicant a right of recourse in the 2nd respondent and not in her, and that it is grossly misleading for the applicant to assert that it has a high chance of success in the suit. She averred further that the applicant and its advocate have persistently insisted on meeting her alone without her advocate, rendering too remote any possibility of amicable settlement. In conclusion, she deposed that no sufficient cause has been shown for setting aside the order dismissing the applicant’s suit for want of prosecution.
In rejoinder, Mr. YASIN KASUMBA averred inter-alia; that the application is based on truthfulness and honesty as he was not dodging court but merely relied on his lawyer to remind him of the hearing date which the lawyer did not do owing to the stress of looking after his sick father in the village. Furthermore, that filing of a fresh suit was done in ignorance of the law and upon reading the relevant law, his advocates withdrew it and instead proceeded with the instant application. He also deposed that the request for costs upon withdrawal was informal and the 1st respondent was at liberty to formalize it in a bill of costs which she did not and as advised by his lawyers failure of the 1st respondent to file a bill of costs was not a bar to filing the present application and it should not stand in the way of justice. He averred that Annexures “F1” and “F2” were issued by his lawyers before they discovered the main suit had been dismissed and should not be considered an abuse of court process. He concluded that the technical errors of this suit should not be visited on the applicant or stand in the way of justice.
The agreed facts as stated in the joint scheduling memorandum signed by both parties and filed in court which form the background of this application is that one MUGONZA ABDALLAH BATOBEEWA was owner of a copyright to a movie titled OMUKAZI MUKA SSEBO and had exclusive rights to the movie. MUGONZA later assigned his rights over the said movie to the defendant/1st respondent and the 1st respondent started dealing in it. The agreement on which the plaintiff relies in this suit expressly stipulates that in the event of a breach thereof, the plaintiff was to have recourse to MUGONZA. The plaintiff/applicant company claims rights over the said movie from the very same MUGONZA. The plaintiff and a number of pirates are currently dealing in the said movie.
When the matter came up for scheduling on 6/11/2013, there was consent between the parties to add MUGONZA as a necessary party to enable the Court to effectually and completely resolve the copyright dispute. The plaintiff/applicant was then ordered to file and serve an amended plaint on the 1st and 2nd respondents within 15 days from that date. The parties were also directed to prepare and file a joint scheduling memorandum by 6/1/2014, and the matter was adjourned to 22/1/2014 for scheduling.
The plaintiff/applicant did file an amended plaint on 18/11/2013. However, there was no evidence that the plaint was served on either the 1st or 2nd respondents. In addition when the matter came up for scheduling on 22/1/214 the plaintiff/applicant and his counsel did not appear in court even though they were present in court on 6/11/2013 when the above orders were made. As a result, the suit was dismissed with costs to the defendant under Order 9 rule 22 of the CPR following the prayer of counsel for the 1st defendant to that effect.
After the dismissal, the applicant filed a fresh suit HCCS No. 297 of 2014 on the same subject matter which was withdrawn by the plaintiff/applicant after the 1st respondent filed and served on the applicant an application to dismiss it with cost on the ground that it was barred by law. After the withdrawal of the fresh suit, the applicant filed this application No. 517 of 2014 to set aside the order dismissing suit.
When this application came up for hearing, the applicant was represented by Mr. Arthur Ampeirwe and the 1st respondent was represented by Mr. Tibaijuka Charles. The parties filed written submissions hence this ruling. It was submitted for the applicant based on Order 9 rule 23 that the Court has discretion to set aside an order of dismissal if there is sufficient cause for non-appearance. It was then argued that the applicant’s counsel went upcountry at the time of the hearing in order to care for his sick father so the error of his advocate in failing to attend the hearing should not be visited on him. Counsel for the applicant relied on the case of F.L. Kaderbhai & Another v. Shamsheriali M. Zavier Virji and Others, Supreme Court Civil Application No. 20 of 2008 (Okello, J.S.C.), which states that; “what constitutes a sufficient reason is determined by Court using its unfettered discretion.”
He further cited Girado v. Alan & Sons (U) Ltd. (1971) E.A. 448, in which it was observed that the provision of S. 101 (now S.98) of the Civil Procedure Act has a wider application than Order 9 Rule 2 (now 22) of the CPR which merely refers to “sufficient cause”. He then submitted that this case presents the circumstances requiring the court to apply its wide discretion in allowing the cause shown by the applicant to deliver the justice that the case requires. He contended that grave injustice would result if the matter is not reinstated because the copyright in the suit movie which properly falls in the ambit of Article 26 of the Constitution is claimed by two people both of whom acquired it from one source. He lamped the issues raised by the respondent such as non-payment of costs of the withdrawn suit and lack of due diligence as mere technicalities which he argued should not be given undue regard in the pursuit of substantive justice.
In reply, the 1st respondent’s counsel submitted on a preliminary point that the applicant applied for issuance of fresh summons when she should have applied for enlargement of time or an extension of time in accordance with Order 51 r 6 or Order 5 r 1 of the CPR respectively. It was argued that the suit was dismissed after the 15 days within which the application for extension of time could have been made under Order 5 r 1 of the CPR had expired. It was further argued that Order 5 r 1 of the CPR does not provide for issuance of fresh summons so it is not known where the applicant got that idea from. Furthermore, that failure to follow the proper procedure rendered the request for fresh summons misconceived and granting this application would be an exercise in futility as it would serve no useful purpose.
On the merits of the application, it was submitted for the 1st respondent that the application is characterized by blatant lies and contradictions and is devoid of any merit. It was contended that while it was stated in the notice of motion that the applicant’s counsel was “out of the country” in the affidavit it was instead stated that the applicant’s counsel “was upcountry to check on his sick father.” Counsel submitted that this raises a pertinent contradiction and casts grave doubt on the veracity of the applicant’s contention.
It was also submitted for the 1st respondent that applicant’s claim that the 2nd respondent “made himself unavailable” was vague and meaningless expression since the 2nd respondent could have only known about the suit after being served with the amended plaint and so it was unfair to accuse him of making himself unavailable. Counsel for the 1st respondent submitted that if by that expression the applicant meant she failed to trace the 2nd respondent, the law clearly provides for substituted service in Order 5 Rule 18 of the CPR but no application was ever made for such mode of service clearly betraying the applicant’s lack of diligence. He argued that even if the 2nd respondent had been served with the amended plaint the absence of the applicant and counsel without any explanation would have still resulted in a dismissal of the suit for want of prosecution.
On the submission of mistake of counsel, it was argued for the 1st respondent that not every mistake made by counsel amounts to sufficient cause for failure to do a particular thing unless such mistake amounts to an error in judgment as was held in Horizon Coaches Ltd. v. Edward Rurangaranga & Anor 2010 1 E.A. 77, pp 84f-85a. It was then contended that in this case there was forgetfulness which is not an error of judgment and as such there was no operative mistake on which the applicant could rely.
Counsel for the 1st respondent also criticised as casual the averment in the affidavit in support of the application that the deponent did not attend court because he was busy as he “tussled out issues of survival and livelihood.” He also contended that applicant’s claim that negotiations were ongoing and arguments that there was need to settle a copyright claim as well as submission that there is a “high chance” of success of its case are outside the purview of Order 9 Rule 23(1), which governs the application. Lastly, it was argued that even though the Court has inherent powers to make orders necessary for the ends of justice, S. 98 of the CPA and Article 126(2)(e) are not intended to aid sloppy litigants like the applicant. Counsel prayed that on the basis of the above submissions this application be dismissed with costs.
Order 9 rule 23 of the CPR under which this application was brought requires the applicant to satisfy the court that there was sufficient cause for non-appearance when the suit was called on for hearing. If the applicant establishes sufficient cause to the satisfaction of the Court, then this rule requires the Court to give an order setting aside the dismissal upon such terms as to costs or otherwise as the court thinks fit.
Sufficient cause and good cause has been held to relate to the inability or failure to take the particular step in time. See: Mugo v Wanjiri  EA 481 at page 483, Njagi v Munyiri EA 179 at page 180andRosette Kizito v Administrator General and Others [Supreme Court Civil Application No. 9/86 reported in Kampala Law Report Volume 5 of 1993 at page 4]. Some of the grounds or circumstances which may amount to sufficient cause have been held to include mistake by an advocate through negligence, ignorance of procedure by an unrepresented defendant, and illness by a party. See: Nicholas Roussos vs Gulamhussein Habib Virani & Another, Civil Appeal No.9 of 1993 (SC) (unreported.
Some of the tests to be applied when dealing with an application like this one were stated in the case of National Insurance Corporation v Mugenyi and Company Advocates  HCB 28 where it was held thus;
“The main test for reinstatement of a suit was whether the applicant honestly intended to attend the hearing and did his best to do so. Two other tests were namely the nature of the case and whether there was a prima facie defence to that case….”
In the instant case, the primary issue is whether the applicant has shown sufficient cause to warrant the grant of this application. The reason for the failure of the applicant and its lawyer to attend court as stated in the notice of motion and affidavit in support seem contradictory as rightly argued by the 1st respondent’s counsel. In the notice of motion counsel was stated to be out of the country and in the affidavit in support he was stated to have inadvertently forgotten about the hearing date as he was upcountry attending to his sick father. Outside the country and upcountry are two different places and there is no way counsel could have been in both places at the same time. Counsel for the 1st respondent submitted at length about this contradiction but it was ignored by the applicant who never gave any clarification as to why counsel was said to be both outside the country and upcountry.
I take this to be a desperate attempt to find an explanation for the applicant and its counsel’s failure to appear in court. I have come to this conclusion after a careful scrutiny of the many other reasons, which I can at best describe as a fishing expedition, the applicant has advanced for its failure to comply with the court order and also appear in court for the scheduling conference on the adjourned date. These include the contention that the parties were still negotiating an out of court settlement and that a joint scheduling memorandum had already been filed among other petty excuses. I find none of them relevant and convincing in so far as the well established principle for setting aside dismissal of a suit highlighted above are concerned. Be that as it may, I will address the question of inadvertence later in this ruling after I have looked at the other reasons the applicant has advanced.
The applicant also blames failure to serve the summons and the amended plaint on the 2nd respondent who it accuses of failing to avail himself for service. I also found this reason rather absurd because one wonders how a party who is not even aware that there is a suit against him would avail or fail to avail himself for service. In any event, Order 5 rule 1 (2) of the CPR is quite clear that when a party fails to serve summons within the specified time an application for extension of time is made to the court within fifteen days after the expiration of the twenty one days. In this case this court had ordered that the amended plaint be filed and served within fifteen days from the date of that order. It was therefore incumbent upon counsel for the applicant to file an application for extension of time within fifteen days after the expiration of the fifteen days ordered by this court. Upon failure to serve the summons within the extended time there would still be another option of applying for substituted service in accordance with Order 5 rule 18 of the CPR. Counsel did not follow the above procedure but instead chose to write letters (Annexures “F1” and “F2”) to court for issuance of fresh summons way after the suit had been dismissed under Order 9 rule 22 for non-appearance of the applicant and its counsel.
All the above steps should have been taken by counsel for the applicant. In the case of Hajati Safina Nababi v Yafesi Lule, Civil Appeal No. 9 of 1998 the Court of Appeal held inter-alia that; it is axiomatic that if a party instructs counsel, he assumes control over the case to conduct it through out, the party cannot share the conduct of the case with his counsel. He must elect either to conduct it entirely in person or to entrust it to his counsel.” The applicant cannot therefore be blamed for the mistake of its counsel in failing to take the necessary steps to serve the summons and the amended plaint on the defendants.
Mr. Kasumba, the director of the applicant company also averred in his affidavit that much as he was in court on the date the matter was adjourned for scheduling conference, he did not record the date and so he was relying on counsel to remind him of the hearing date but counsel through inadvertence as a result of being upcountry looking after his sick father also forgot about the date. Counsel for the applicant then submitted that his client forgot about the hearing date since he was busy tussling out issues of survival and livelihood. Of course everybody else is tussling out issues of survival and livelihood and if courts were to accept it as a reason for failure by litigants to do what is required of them then no one would comply with the court orders and directives. Counsel for the applicant prayed that the mistakes of the applicant’s counsel should not be visited on the applicant.
To my mind the fundamental question which this court must answer is whether the alleged mistake of counsel amounts to sufficient cause which justifies setting aside the dismissal of the applicant’s case.
In Dr. Sheikh Ahmed Kisuule vs Greenland Bank in Liquidation Misc. Application No. 2 of 2012, this court summarized the rationale for the principle that mistake of counsel should not be visited on the litigant as stated by Oder, JSC (RIP) while giving its background in the case of Banco Arabe Espanol v Bank of Uganda SCCA No. 8/1998 [1997-2001] UCL 1, to the effect that:-
“The question of whether an “oversight”, ‘mistake”, “negligence”, or “error”, as the case may be, on the part of counsel should be visited on a party the counsel represents and whether it constitutes “sufficient reason” or “sufficient cause” justifying sufficient remedies from courts has been discussed by courts in numerous authorities. Those authorities deal with different circumstances; and may relate to extension of time for doing a particular act, frequently in cases where time has run out;……. But they have a common feature whether a party shall, or shall not, be permanently deprived of the right of putting forward a bona fide claim or defence by reason of the default of his professional advisor or advisor’s clerk.”
This court did observe in the case of Dr. Sheikh Ahmed Kisuule (supra) that the principle was developed in the interest of substantive justice as litigants do not have control on how the instructions they give to their advocates are carried out because the latter as legal experts/professional advisors are presumed to know the law, procedures and practice of court. It is therefore logical that where the advocate blunders in carrying out the instructions the innocent litigant is not made to suffer the consequence of that blunder.
I wish to adopt that observation in this case and add that while it is true that the reasons given by the applicant for the non-appearance of its counsel are contradictory, the fact remains that counsel who was instructed to conduct the case did not appear on the adjourned date just as the applicant’s director who claimed to have been relying on counsel to remind him did not also appear and the matter was dismissed. Counsel’s failure to appear was said to be due to his absence from Kampala and according to the case of Banco Arabe Espanol (supra) whether it amounts to oversight, mistake, negligence or error it should not lead to the applicant being permanently deprived of the right of putting forward a bona fide claim or defence. For that reason, I would be inclined to find that there is sufficient cause shown by the applicant for setting aside the dismissal of the suit.
I must also point out that even the blunder of filing a fresh suit and withdrawing the same were all done by counsel for the applicant and for the same reason stated above it cannot be blamed on the applicant in the same way that it cannot also be faulted for the failure to serve summons and the amended plaint on the defendants. Nevertheless, I wish to make a few comments on the submission of counsel for the 1st respondent regarding the requirement of Order 25 r 4 of the CPR in respect of payment of costs of withdrawn suits. I have carefully perused Order 25 rule 1 (1) & (2) as well as rule 4 and my understanding is that the withdrawal of the suit by the plaintiff under rule 1 (1) can only be with leave of the court which also determines the issue of costs as provided under rule 1 (2). Any purported withdrawal without leave of the court would therefore not be competent. Under rule 4 the court has discretion to order a stay of subsequent suit until the costs ordered under rule 1 (2), have been paid.
In the instant, counsel for the 1st respondent did not address this court whether the withdrawal was with leave of the court and if so whether the issue of costs was canvassed and ordered as leave was being sought. Due to lack of that information this court is unable to pronounce itself on the matter but would only advise that recourse be sought from the court that was seized with that matter to address the competence of the withdrawal together with the order for costs if at all no leave was granted.
Otherwise, fortified by the decision in National Insurance Corporation (supra), this court also considered the nature of the applicant’s case in the dismissed suit as well as the prima-facie defence put up by the 1st defendant and formed the firm view that it would best serve the interest of justice and the infant music industry in Uganda with the related copy right issues if the dispute between the parties is heard and determined on the merits.
For the above reasons, I find that the applicant has shown sufficient cause for failure to appear on the date the suit was dismissed which merits the grant of this application. In the result, the dismissal of HCCS No. 453 of 2011 is set aside and the time for serving summons and the amended plaint is hereby extended. The applicant is ordered to serve the amended plaint on both defendants within fifteen days from the date of this ruling.
The applicant shall pay the costs of this application to the 1st respondent.
I so order.
Dated this 10th day of September 2015.
Ruling delivered in chambers at 3.00 pm in the presence of Mr. Tibaijuka Charles for the 1st respondent who was also present. There was no appearance for the applicant.