[2024] UGHC 644

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

# MISCELLANIOUS APPLICATION NO. 56 OF 2023

# (ARISING FROM CIVIL SUIT NO. 034 OF 2022)

# 1. ADJUMANI DISTRICT LOCAL GOVERNMENT:::::::::::::::::::::::::::::::::::

#### VERSUS

- 1. AKULE ABUNI ALBINO - 2. DOMINIC ENGILISI DRAPIRI - 3. ELIAS LULU - 4. FLORENCE KAMOYO RESPONDENTS

#### 15

# BEFORE HON. JUSTICE COLLINS ACELLAM

### **RULING**

## **Brief Introduction**

The application is made under Articles 126 (2) (e), 28(1) and 44 of the 1995 Constitution of the Republic of Uganda, Section 98 and 26 of The Civil Procedure Act, Cap 71, Order 9 rule 27, Order 51 Rule 6 and Orders 52 Rule 1 of the Civil Procedure Rules. The applicant seeks an 20 order setting aside an interlocutory judgment issued by Her Worship Agwero Catherine, the learned Deputy Registrar of this honourable court on the 14^th February 2023, that time be extended allowing the Applicant to file her Défense and the said suit be heard inter parties.

# Grounds in support of the Application

The grounds in support of the Application have been advanced in the affidavit in support of the $25$ Application deponed by the ORYONO GRANDFIELD OMONDA, the Chief Administrative Officer of the Applicant whose grounds are briefly that;

That the Applicant and the Respondents were at the time the judgment was entered involved in deliberations intended to understand the nature of the Respondent's claim with the view to

agreeing to reaching an amicable settlement of the same outside court. The applicant adds that 30 they were convinced that the concerns raised in Civil Suit No. 034 of 2022 would be settled and a settlement of the same filed in this honourable court at the earliest convenience, however the process delayed and as a result the time for filing a Défense in this matter elapsed.

The Applicant further contends that they have a good Défense to the Respondent's suit and the conduct of the applicant was not derelict but in good faith. That the respondents were aware of 35

the said proceedings and have suffered no prejudice on account of the Applicant's explained delay. The Applicant states that it's only fair and just that the said judgement is set aside, and the applicant be granted more time within which to file her Défense and that the matter be heard interpartes by this honourable court.

#### 40 Grounds in Opposition

The grounds in opposition to the Application were advanced in the affidavit in reply of the 4^th Respondent, KAMOYO FLORENCE. The deponent contends that the affidavit in support of the application lacks merit and that they filed Civil Suit No. 0034 of 2022 against the applicant for Trespass to their land by unlawfully opening a road that had not been planned through their

land into two exposing their kraal and the animals therein to a lot of insecurity and further 45 destroying their crops and that the community on the land.

That they complained to the district Engineer about the construction of the said road on their land and the Engineer promised to convene a meeting involving them to discuss the matter but failed to do so which prompted them to file a suit against the Applicant after discovering that the applicant had proceeded to open the road through their land in total disregard of their complaint.

That it was after the suit was filed and defendant served with summons to file a defence that the Applicant invited them for a meeting in which they demanded that the Applicant fence off the road to protect their animals and pays them compensation for the loss occasioned thereby.

That the Applicant accepted to undertake some mitigative approach and on the 22^nd December, 55 2022 wrote to the Deputy Registrar of this Court confirming receipt of the summons on the 8^th December, 2022 and requested court to allow them settle the matter outside court but failed promptly pursue the same. That the grant of this Application will not serve a lawful purpose as the Applicant has no defence to the suit and pray that the same be dismissed with costs and the suit be ordered to proceed ex-parte against the applicant. 60

#### <u>Representation</u>

During the hearing, the Applicant was represented by the Attorney General's Chambers whereas the Respondents was represented by Donge & Co. Advocates.

The Applicants crave the indulgence of court to set aside an interlocutory judgment issued on

the 14^th February 2023 and also to proceed inter-partes as they address the issues regarding the 65 lapses in their failure to file their defence within the legally required timelines.

Counsel for both parties filed their written submissions as directed by court. I have carefully read and considered the pleadings, evidence and submissions of both parties to come up with this decision.

70 **Issue**

- 1) Whether the Applicant has provided sufficient reasons to set aside the interlocutory judgment entered against the Applicant in civil suit No. 034 of 2022. - 2) Whether time can be extended for the Applicant to file her defence out of time.

## Determination / Resolution.

Whether the Applicant has provided sufficient reasons to set aside the interlocutory judgment 75 entered against the Applicant in Civil Suit No. 034 of 2022.

#### Position of the law

An exparte judgment obtained by default of defence is by its nature not a judgment on merit and it is only entered because the party concerned has failed to comply with certain requirements

of the law. The court has power to revoke such judgments which is not pronounced on merit of 80 the case but entered especially on failure to follow requirements of the law.

Order 9 Rule 27 of the Civil Procedure Rules provides for setting aside decree exparte against defendant upon satisfying court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing. Upon

satisfaction, court shall make an order setting aside the decree as against him or her upon such 85 terms as to costs, payment in court or otherwise as court deems fit and shall set a date for proceeding with the suit.

The court may set aside ex-parte orders, for any "sufficient cause" from taking a necessary step in the proceedings.

Sufficient reason must relate to the inability or failure to take the particular step in time. 90

## (see Mugo and others v. Wanjiri and another [1970] EA 481 at 483; Njagi v. Munyiri [1975] EA 179 at 180).

By judicial practice however, "sufficient cause" is liberally constructed to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed. (See Bishop Jacinto

Kibuuka v. The Uganda Catholic Lawyers' Society and two others, H. C. Miscellaneous Civil 95 Application No. 696 of 2018). They include mistakes by an advocate though negligent, ignorance of procedure by an unrepresented litigant and illness by a party.

The question now is whether the grounds which have been advanced in support of the application show "sufficient reason" for the exercise of the court's discretion.

In light of the facts, the Applicant's Chief Administrative Officer, Mr. Oryono Grandfield 100 Omonda deposes under paragraph 2 of the affidavit in support that he received summons on 8^th December, 2022 which required that the Applicant to file her Défense within 15 days from the date of service.

The deponent further contends in paragraph 3 that he was utterly surprised by the fact that the Respondents had sued the Applicant, yet they were aware of the ongoing engagement between 105 the parties with a possibility of reaching a settlement. Meetings were already in process as the first sessions had already been held which simply meant there was a sign of progress in reaching a settlement.

The Applicant submits that they acted in good faith and did not act arbitrarily and recklessly, and they even consulted the Applicant's lawyers on the course of action they had undertaken 110 with a view of reaching a settlement and its only proper that court grants the Application.

In rebuttal, Counsel for the Respondents submits that the Applicant's claim that she was

prevented by sufficient cause from filing the WSD in time is owed to the deliberations and

discussions that were going on between the parties prior to filing of the suit and ignorance of procedure. Counsel states that this is not true and not backed with evidence as the Applicant deliberately omitted to attach minutes on which he relied to claim that the parties were engaged in deliberations and the discussions were progressively going on between the parties with a view of finding an amicable resolution and the only time that deliberation was made was after the suit was already filed in court and after they had already been served with summons.

## Decision of Court.

I have had the honour to listen both sides. I shall go ahead and give my decision and reasons for doing so.

The general rule is that where any defendant fails to file a defense on or before the day fixed in 125 the summons and the plaintiff is desirous of proceeding upon default of filling the defense then Court shall proceed as per Order 9 rule 27, the discretion of court is limited to a sufficient cause.

In my considered opinion, proposition of settlement out of court should not be a ring light for failing to heed to due procedure of court. However, the procedural question as to the form taken

130 by the Application is a technical issue and does not deal with the substance of the suit. Specifically, it is my considered opinion that the substance of the Applicant's application is with court to allow them to defend the suit as parties so as to efficiently and diligently execute all remedies this court can offer.

Trust is created independently of the intentions of parties. It is the independent jurisdiction of equity as a court of conscience to grant relief for every species of unconscionable conduct. See 135 Grant versus Edwards 1986. I find the aforesaid principles persuasive and I deem it fit to apply them to the instant case.

It wouldn't be just to lock the Applicants out, its only proper that all matters be handled on merits interpartes. I have also considered the case of Re Christine Namatovu Tebajjukira (1992-93) HCB 85, quoted by Counsel for the Applicants where it was held that;

"The Administration of justice requires that substance of disputes be investigated and decided on their merits and errors and lapses should not necessarily debar litigants from the pursuit of his or her rights.

I find that this is a proper case in which I would exercise the inherent powers of the court under Section 98 of the CPA without hesitation. I feel buttressed in this by the provision of Chapter 145 8, Article 126 (e) of the Constitution under the heading "Exercise of Judicial Power", stating that substantive Justice shall be administered without undue regard to technicalities; this would guide this court to exercise its inherent jurisdiction.

Therefore, the interlocutory judgment issued by the learned Deputy Registrar on the 14^th February, 2023 is hereby set aside, and time is extended to allow the Applicant file their defense.

In respect to costs, Order 9 rule 27 states that court shall make an order setting aside the decree as against him or her upon such terms as to costs or payment into court or otherwise as it deems fit. Much as court appreciates the efforts and good faith undertaken to settle the matter outside court, its only right to penalise the Applicant in costs for their failure to efficiently carry out their engagement in a bid to settle the matter out of court, this does not negate the fact that they ignored the fundamental rules of procedure and its only fair to the Respondents that costs be awarded to them, this Application is therefor allowed with costs to the Respondents.

I so order.

$G^{\mathcal{K}}$ Delivered at Arua this ...... $\cdots 2024$

COLLY **CELLAM**

**JUDGE**