Court name
High Court of Uganda
Judgment date
19 February 2009

Wanyama Bakulu t/a Junior Coach v Kibwota Santanino Layoo (Miscellaneous Application-2009/4) [2009] UGHC 11 (19 February 2009);

Cite this case
[2009] UGHC 11

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT HOLDEN AT GULU

MISCELLENOUS APPLICATION NO.0004 OF 2009

(ARISING OUT OF HIGH COURT CIVIL SUIT NO.076 OF 2007)




WANYAMA BAKULU T/A BAKULU

JUNIOR COACH :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT/JUDGMENT DEBTOR

VERSUS


KIBWOTA SANTANINO LAYOO ::::::::::::::: RESPONDENT/JUDGMENT CREDITOR





BEFORE: HON. JUSTICE REMMY K. KASULE







RULING:






The applicant applies for reinstatement of the orders granted by this Court in Miscellaneous Application Number 89 of 2008.



In Miscellaneous Application Number 89 of 2008 the applicant applied to have the Judgment passed ex-parte against him in H.C.C.S
No.76 of 2007 set aside. The suit had proceeded ex-parte against the applicant, first defendant in the suit, after the trial Court
had held:-

        
Both defendants were served with summons to file a defence on   
20.10.07, an affidavit of service was filed on court
record, but both   
defendants did not file any defence to the suit within the time prescribed      
by law. On      
07.12.2007 interlocutory Judgment was entered against   
both defendants. The suit proceeded to full hearing     
therefore by way of
    
formal proof.”



The suit then proceeded to full trial whereby the respondent, plaintiff in the suit, proved to the satisfaction of Court that on 24.04.07,
the applicant’s bus Number UAH 298R was negligently driven by an authorized driver of the applicant, knocked and killed the
respondent’s son; Adonga David, aged 30 years, at Koro, along Gulu-Kampala Highway. The trial Court, in its Judgment, awarded
to respondent both general and special damages payable by the applicant. The respondent, as decree holder in the suit, proceeded
to recover the damages and costs by executing against the applicant/judgment debtor.



Through High Court, at Gulu, Miscellaneous Application No.89/08, the applicant applied to have the exparte judgment in Civil Suit
Number 76/07 set aside. After a full hearing in which Counsel for both parties to the application adduced affidavit evidence followed
by submissions, this Court decided, after doubting the applicant’s assertion that no service to file a defence had been served
upon the applicant, that:-



        
Be that as it may, the interests of Justice enjoin this court to avail the      
applicant an opportunity to be heard. It is however his keeping away    
and not being available to Court, police and relatives of the deceased,         
victim of
the accident, that resulted in proceedings being conducted    
against the applicant in his absence. Court therefore
allows this       
application, but on a number of conditions, so as to ensure justice to all      
concerned in the case.”


Court then set conditions to be complied with by the applicant before the ex-parte Judgment could be set aside. These conditions,
amongst others not relevant to this Ruling, were:-

(i)     
Applicant filing and serving to opposite party a written statement of defence within 15 days from the date of the order.

(ii)    
Applicant to deposit in court Shs.1,500,000/= within 15 days of the order, towards execution costs so far incurred;

(iii)   
Applicant to deposit in Court Shs.1,000,000/= within 15 days of the order towards expense for recalling of witnesses who had already
testified in the case.
In respect of the above conditions, and others, the Court clearly stated in its Ruling that:-

        
“If applicant fails to comply with all, or any one of the above conditions,      
within the period herein set, then the setting aside
of the Judgment shall      
be taken as vacated and execution of the same is to proceed against the         
applicant/judgment debtor.”




Court delivered the Ruling on 26.09.08 in the presence of Mr. Louis Odongo, learned Counsel for the respondent; and Mr. Oloya, holding
a brief for Mr. Bakidde, learned Counsel for the applicant. In effect the Ruling was delivered in presence of Counsel for each of
the parties to the application.



After the delivery of the Ruling, the applicant only partially complied with the conditions set out above. He, through his new firm
of lawyers, Kiwuwa & Co. Advocates, filed and served a written statement of defence on 08.10.08. He did not deposit any money
to Court. He did not communicate to court about his failure to do so.



On 17.11.08 the respondent/Judgment Creditor moved court to be allowed to execute the ex-parte Judgment since, on failure by the
applicant to comply with all the conditions, the same was not vacated. Court allowed the respondent’s application and ordered
execution process of the Court Decree to issue. On 16.12.08 Court issued a warrant of attachment and sale of the applicant’s
buses. On 06.01.09 the applicant lodged this application.



The applicant in support of his application deposed to an affidavit stating that on the day the application was argued he was in
detention at “a police Station in Gulu District’ and so he could not attend Court and further his then lawyer never communicated
to him the conditions set by Court to be fulfilled by him before Judgment could be set aside. He only came to know of them when a
warrant of attachment of his bus was served upon him and the bus had been attached in execution of the decree.



Before obtaining the services of his present lawyers, M/S Nsubuga – Mubiru Co, Advocates, the applicant had been represented
by M/S Kiwuwa & Co, Advocates, and in particular, learned Counsel Michael Bakidde appeared for and argued the Miscellaneous Application
No.89/08 to set aside the ex-parte Judgment. The Ruling in the application was delivered on 26.09.08 when learned Counsel Oloya held
a brief for Mr. Bakidde for the applicant.





There is no evidence, whether by affidavit or otherwise, from Mr. Bakidde or Mr. Oloya, Counsel who represented the applicant, to
the effect that each one of them never passed to the applicant the conditions set by Court, he, applicant, had to fulfill before
the Judgment of the court could be set aside. There is also no evidence by way of explanation as to why each one of the learned Counsel
could not have done so. The assertion that the applicant was not informed of the conditions thus remains a bare statement from him,
not supported by his then lawyers.



Court notes that on 08.10.08, the then applicant’s lawyers, M/s Kiwuwa & Co, Advocates filed a written statement of defence
in the suit for the applicant. These lawyers must have done so pursuant to the Ruling of Court of 26.09.08. It is difficult for this
Court to believe the applicant’s assertion that his then lawyers, M/S Kiwuwa & Co, could have proceeded to file a written
statement in the suit without first having communicated to the applicant the conditions that had to be fulfilled before the Judgment
could be set aside.



Court, thus, disbelieves the applicant that his then lawyers never communicated to him the conditions that had to be fulfilled by
him before Judgment could be set aside. Court comes to the conclusion that the applicant was made aware of all the conditions that
he had to fulfill before Judgment could be set aside, but of his own choice, opted not to comply. He only ran to court to avoid fulfilling
the decree when execution process had been effected.



Orders of Court must be obeyed to the letter, otherwise Justice as administered by the courts becomes a mockery. It is not open to
any one to choose what part of the orders made by court to comply with and which part not to comply with. This court is enjoined
to stop such conduct on the part of any party whose cause happens to be the subject of adjudication before the court. In this particular
case, the applicant after being afforded an opportunity to be heard and to put his case in the main suit, on fulfilling a number
of conditions, chose to comply with only some, and not to comply with others. This court refuses to exercise its discretion in favour
of such a party.



Court is also conscious of the fact that the decree holder, the respondent, is entitled to enjoy the fruits of the court decree;
and that that enjoyment should not be unduly delayed by such a conduct as that of the applicant in this application.



This court therefore disallows this application. The same stands dismissed. The respondent is awarded the costs of the dismissed
application.

It is ordered that the execution of the decree in Civil Suit No.76 of 2007 continues from the stage it had so far reached.



Remmy K. Kasule

Judge

20
th February 2009