[2025] UGCommC 169

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL ON) MISCELLANEOUS APPLICATION NO. 0185 of 2023 (ARISING FROM CIVIL SUIT No. 148 of 2020)**

# **AGSRI AGRICULTURAL SERVICES PRIVATE LIMITED ] APPLICANT**

#### **VERSUS**

#### 15 **HORYAL INVESTMENTS HOLDING COMPANY LIMITED ] RESPONDENT**

# **Before: Hon. Justice Ocaya Thomas O. R**

#### **RULING**

# **Introduction:**

This application was brought by way of Notice of Motion under Sections 96 and 98 of the Civil Procedure Act, Order 9 Rule 18 of the Civil Procedure Rules, seeking the following orders: -

- 1. That the order of dismissal of Civil Suit No. 7 of 2017 be set aside and the suit be reinstated. - 25 2. That the time for filing the Plaintiff's submission in the suit be enlarged and/or the Applicant be granted leave to file its submissions out of time. - 3. That the costs of the application be provided for.

The grounds of the Application are contained in the affidavit of the Applicant, Biksam Gujja, 30 the Managing Director of the Applicant Company. It states that the Applicant filed the suit for recovery of the sum of USD 65,359 under a consultancy services agreement dated 11th July 2015, damages, interest, and costs and the Applicant closed its case on 18th October 2019, and the suit was adjourned for hearing of the defense case to 13th November 2019. That the hearing of the defense case did not take place on 13th November 2019 and 25th February

35 2020 because the witnesses were out of the country.

- 5 The hearing of the defense case did not take place on 20th October 2020 because that date coincided with the opening of the Respondent's factory, and the hearing of the suit was closed on 9th February 2021 in the absence of the Respondent and its advocate, and the court directed the parties to file written submissions. - 10 That he was informed by the Applicant's lawyers in the suit that their law firm did not file and serve written submissions within the time directed by the court and the suit was dismissed on 28th November 2022 because no action had been taken since 21st October 2019 and that the suit has high chances of success because he gave evidence that the reasons given by the Respondent for its failure to pay were not of the terms of reference in the contract. - 15

That this application was brought without delay and prays that the application to set aside the dismissal and for enlargement of time for the Applicant to file its written submissions in the suit be allowed.

- 20 The Respondent's affidavit in reply was deposed by Baruga Edward, an Advocate of the Courts of Judicature practicing with M/S OSH Advocates, the law firm representing the Respondent in the above matter and he stated that this Application is without merit and is an abuse of court process and the same should be dismissed with costs. That the contents of paragraphs 2 and 3 of the Affidavit in support are admitted save for the fact that the Applicant 25 is not entitled to the claimed sums as it did not fulfill his terms of the contract, and that the contents of paragraph 4 of the affidavit in support of the application are factual since they are not supported by evidence and As such mere assertions by the Applicant. - Further that the contents of the Applicant's paragraph 5 are untrue as the Respondent's 30 factory was never opened on the said date and the same had no bearing on the progress of the case and that the case proceeded inter-parties with both parties having legal representation and duly attending the sessions of the court. That no explanation is advanced to account for the failure by the Applicant's counsel to file and serve the written submissions within the time that court had directed.

- 5 That the Applicant was not diligent in prosecuting its case and the same was rightfully dismissed by court for want of compliance with the lawful orders of court and that the Applicant having conceded that the suit was indeed dismissed for noncompliance with the court directions does not state any sufficient reason for the failure to comply to warrant the reinstatement of the same. - 10

That indeed the application does not meet the legal requirement for reinstatement of a suit of having sufficient reason/ cause for the court to grant such a reinstatement, and contend that the Applicant is guilty of dilatory conduct and/or inordinate delay, having filed the present application on 12th January, 2023, more than a month after the dismissal of the main

15 suit and only had the same fixed for hearing on 8th April, 2025, more than two years after its filing.

# **Representation and Submissions:**

The Applicant was represented by the Law firm of M/S J. B Byamugisha and Co. Advocates,

20 and the Respondent was represented by M/S Osh Advocates.

The parties filed written submissions with the permission of the court.

# **Evidence:**

25 The parties led their evidence by way of an affidavit in support of the Notice on motion, and affidavit in reply thereto and in rejoinder, deposed by the individuals mentioned herein.

# **Issues:**

- 1. Whether there are sufficient grounds to warrant setting aside the dismissal order and - 30 reinstating Civil Suit No. 07 of 2017? - 2. Whether there are sufficient grounds to enlarge and/or grant the Applicant leave to file its submission out of time.


#### 5 **Decision:**

# **Issue 1: Whether there are sufficient grounds to warrant setting aside the dismissal order and reinstating Civil Suit No. 07 of 2017?**

Counsel for the Applicant cited order 17 rule of the Civil Procedure rules which states that-

"Where any party to a suit to whom time has been granted fails to produce his or her 10 evidence, or to cause the attendance of his or her witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding that default, proceed to decide the suit immediately.'

Counsel also cited the case of John William Beyagala v Yunusu Kasumba, HCMA No. 622 of 15 2011, where court ruled that - Order 17(4) of the CPR is clear that if submissions are not given a Judge can go ahead and write a judgment. In the instant circumstances, therefore, this court finds it more appropriate to address this matter under section 98 of the Civil Procedure Act, which was also cited by the Applicant's Counsel, invoking this court's inherent powers. There is a wealth of authorities to the effect that a mistake or lack of attention or want of care

20 on the part of Counsel, or ignorance of procedure by an undefended litigant is a good ground to set aside an order of court.

**See** Shaban Din V Ram Parkash Anamb [1955] EACA 48; Zirabamuzale V Corret [1962] EA 698; Ofono Yeri Appoio V Sanjay Tanna & Anor [2007] HCB 68.

- 25 Counsel submitted that in the instant case, this court dismissed the suit on 28 November 2022 because no action had been taken since 21 October 2019. This was an error for the following reasons; namely: - a. The Applicant closed its case on 18 October 2019, and the suit was adjourned for hearing of the defense case to 13 November 2019. - 30 b. The hearing of the defense case did not take place on 13th November 2019 and 25th February 2020 because the witnesses were out of the country. The hearing of the defense case did not take place on 20th October 2020 because that date coincided with the opening of the respondent's factory.

5 c. The hearing of the suit closed on 9th February 2021 in the absence of the Respondent and its advocates, and the Court directed the parties to file written submissions.

> d. The Applicant's advocate did not file and serve written submissions within the time directed by court.

Counsel concluded that under the circumstances, the Judge could go ahead and write a judgment in the case.

# Respondent's submission.

- 15 Counsel for the Respondent submitted that the powers of this Court to exercise its discretion to set aside and reinstate the dismissed suit are not in dispute. What is now important to demonstrate to the court is whether the Applicant has sufficient cause to warrant the setting aside and reinstatement of the dismissed suit. That Sufficient Cause refers to a legal determination that there exists sufficient grounds to support a case or a decision. It is a - 20 recurring requirement in numerous substantive and procedural statutes and regulations for justification of the triggering of the court's judicious exercise of its discretion. See: Black's Law Dictionary, 8th Edition.

Counsel submitted that the term sufficient cause has also received extensive adjudication on 25 its meaning and cited the case of The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR discussing what constitutes sufficient cause had this to say: - It is difficult to attempt to define the meaning of the words 'sufficient cause' It is generally accepted however, that the words should receive a liberal construction in order

30 to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant.

Counsel also submitted that in the same Kenyan authority of Gideon Mosa Onchwati (supra) reliance was made on the Supreme Court of India case of Parimal vs Veena which attempted 35 to describe what was 'Sufficient Cause" when it observed that: - "Sufficient cause" is an


5 expression which has been Used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable

10 standard of a curious man.

Counsel submitted that in establishing what sufficient cause means, the Supreme Court In Banco Arab Espanol Versus Bank of Uganda Supreme Court Civil Appeal No.8 of 1998; court noted that "it must be satisfied as to the reasons or explanation provided and the sufficiency 15 of the grounds should relate to an inadvertency, inability, failure or bonafides to take a proactive, necessary or mandatory measure or steps to further one's case timely which would exonerate the litigant from the presumption or assertion of dilatory conduct, indolence, negligence or inaction which in the first place led to the negative outcome which the litigant now seeks to have remedied. However, the facts and circumstances of each case 20 must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

(See; Kibuuka V Uganda Catholic Lawyers Society & 2 Ors (Misc. APP No. 696 OF 2018).

Counsel further submitted that in the instant Application, the Applicant in paragraph 7 of 25 their affidavit as well as in their submissions, states and admits that their advocate did not file and serve written submissions within the time directed by court but did not advance any explanation to account for failure to file and serve the submissions and yet the same advocates are the ones who have been instructed to prosecute this application.

- 30 That it is trite law that the mistake, laxity, negligence or inadvertence of a party's advocate should not be visited on that party. Where however that party's Failure to take the step is also caused by his or her indolence or inadvertence, the court should not be forgiving. While the rule against visiting mistakes of counsel on their clients was intended to serve the bona fide purpose of ensuring the substantive justice of a case will always prevail, the reality is - 35 that many litigants abuse that rule by remaining indolent throughout court proceedings, only


5 for them to turn up at later stages of the proceedings with new counsel seeking to undo their earlier proceedings.

Counsel cited the case of Hakan Turkmen & Anor Versus Petua Kateeba HCMA No.0619 of 2024, that the court recognized that mistake of counsel is not a magic wand that entitles

- 10 litigants to all manner of relief as he or she wishes. It was further held that when an indolent litigant eventually wakes up and shows up with a new lawyer after firing his or her former lawyers, the Court need not always undo its earlier proceedings to accommodate him if it does not serve the interests of justice. Furthermore, that, in Kananura Versus Kaijuka SC Civil Reference No. 15 of 2016, the Supreme Court found that - It is the duty of an intended - 15 appellant (now applicant) to follow up and inquire from his advocate on the status of his case. Following up of the applicant's case did not require him to be knowledgeable in court processes.

Counsel submitted that a litigant should not simply instruct an advocate and sit back. He or 20 she should continue to engage and follow up with his or her advocate as regularly and as necessary for updates and information about the progress of his case. In this application, although the Applicant claims that his advocate was negligent, he does not produce any evidence to prove that he took steps as the plaintiff in the dismissed suit to engage and follow up with his advocate on the progress of his suit. Better yet the suit was dismissed on the 28th

- 25 day of November 2022, this application was filed on the 12th day of January 2023 more than a month after the dismissal of the main suit and only had the same fixed for hearing on the 8th day of April 2025, which is more than two years after its filing which is enough proof of the Applicant's dilatory conduct on its part. - 30 Applicant's submission in rejoinder.

Counsel submitted that the Respondent's submissions dwelt mainly on the burden placed on the Applicant to show sufficient cause for setting aside the order of dismissal. However, they did not touch on the provisions of Order 17, rule 4 of the Civil Procedure Rules, Sl 71-1.

35 Also, the Respondent's submissions do not challenge the fact that the reason for dismissal of the suit was erroneous. That of course, this is because the hearing was conducted by another

 - 5 judge of the court, who ought to have proceeded under Order 17, rule 4 of the Civil Procedure Rules. That alternatively, the successor judge could have proceeded under Order 18, rule 11 of the Civil Procedure Rules which provides that -Where a judge is prevented by death, transfer or other cause from concluding the trial of a suit, his or her successor may deal with any evidence taken down under rules 1 to 10 of this Order as if the evidence had been taken - 10 down by him or her or under his or her direction under those rules, and may proceed with the suit from the stage at which his or her predecessor left it. Counsel recited the case of Juliet Nabagala (Executrix of the estate of the late Scholastic Nanteza) v Tereza Mbiro(supra)

Counsel also submitted that in the instant case, the court should have proceeded to decide 15 the suit based on the evidence already on record instead of dismissing it.

## Court's decision.

Order 9 Rule 18 of the Civil Procedure Rules provides that - Where a suit is dismissed under rule 16 or 17 of this Order, the plaintiff may, subject to the law of limitation, bring a fresh 20 suit or he or she may apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her not paying the court fee and charges, if any, required within the time fixed before the issue of the summons or for his or her nonappearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

On the foothill of the above provision, it is trite that the test for reinstatement under Order 9 rule 18 is proof of sufficient cause that prevented the plaintiff from entering an appearance when the suit was called for hearing. In *Hadondi Daniel vs Yolam Egondi, Court of Appeal Civil Appeal No. 67 of 2003,* the term sufficient cause was described thus: *"…Sufficient cause* 30 *must relate to the inability or failure to take necessary steps within the* prescribed *time."*

In practice thus far, the provision appears to leave the meaning of "sufficient cause" to judicial discretion and determination based on the facts, surrounding circumstances, and the merits of each particular case, and to ensure the ends of justice.

- 5 See *Kyegegwa District Local Government v Aharikundira Margaret, HCMA No. 25 of 2022,* and the cited decision by counsel for the Appellant, **The** *Registered Trustees of the Archdiocese of Dar es Salaam V the Chairman Bunju Village Government & Others, quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR.* - 10 The contours observed by the Court in the exercise of their discretion in reinstating a case under Order 9 Rule 18, while considering the proven sufficient cause was discussed by the Hon. Justice Twinomujin (*as he then was*) (Rip), in the case of *Tiberio Okeny & Anor V the Attorney General and 25 Others, CACA No. 51 of 2001,* gave the broad contours within which the discretion is to be exercised where he observed thus: - 15 *"(a) First and foremost, the application must show sufficient reason related to the liability or failure to take some particular step within the prescribed time. The general requirement notwithstanding each case must be decided on facts.*

*(b) The administration of justice normally requires that substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily* 20 *debar a litigant from pursuit of his rights.*

*(c) Whilst mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law.*

*(d) Unless the Appellant was guilty dilatory conduct in the instructions of his lawyer, errors* 25 *or omission on the part of counsel should not be visited on the litigant. Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirements of the law …"*

The Hon. Justice Twinomujuni further held that *"it is only after 'sufficient reason"* has been 30 advanced that a court considers, before exercising its discretion whether or not to grant extension, the question of prejudice, or the possibility of success and such other factors …".

Therefore, sufficient cause connotes any legally justifiable excuse presented by a party that prevented him or her from doing an act mandated by the law in a given period of time as long

35 as such excuse or conduct was not negligent or a party has not taken steps to take the act

- 5 without undue delay and the omission. Further, it necessitates the Court to examine the conduct of the parties, for example, whether or not a party has been grossly negligent, careless, reckless, or palpably indifferent in prosecuting the case, would be a consideration. A delay that is beyond the full control of the party or due to the occurrence of facts that could not be contemplated by the party should favor an extension of time in appropriate cases. - 10

In the instant case, it is not in dispute that the Applicant attributes their failure to adhere to court instructions to mistake or sheer negligence of their counsel. it is an established principle of the law that negligence of counsel ought not to be visited on an innocent litigant and that a litigant ought not to bear the consequences of default by an advocate unless the

- 15 litigant is privy to the default or the default results from the failure on the part of the litigant to give the advocate due instructions. See *Zam Nalumansi v Sulaiman Lule, SCCA No. 2 of 1992*; *Mary Kyamulabi v Ahmed Zirondemu, CACA No. 41 of 1979*, and Andrew *Bamanya v Sham Sherali Zaver, CACA No.70 of 2001.* - 20 As with every general rule, the above principle is not absolute, as there are circumstances under which the mistake and negligence of counsel may not stand as a ground for setting aside a Judgment. The Court in the case of *Okech Verkam v Centenary Rural Development Bank HCCA No.93 of 2019*, stated that:

"…But before the Applicant can be excused from the mistakes of his counsel, he must show 25 that he was not in any way negligent and that he took proactive steps in correcting the errors of his counsel when he first became aware of the default".

In this instant case, the Applicant in its affidavit in support and submission elaborated on the counsel's mistake, having failed to adhere to the Court's instructions to file written 30 submissions. However, it is the Applicant's argument that notwithstanding, its failure to file submissions, the judge ought to have entered a judgement under Order 17 Rule 4 basing on the evidences adduced in the hearing.

Whereas I subscribed to the import of the provision in Order 17 Rule 4, however, it was also 35 the Applicant in paragraph 4 of their affidavit in support wherein the deponent stated that the hearing of the defense case did not take place on 13th November 2019 and 25th February

- 5 2020 because the witnesses were out of the country and in paragraph 5 that hearing of the defense case did not also take place on 20th October 2020 because that date coincided with the opening of the respondent's factory. In paragraph 6 that the hearing of the suit was closed on 9th February 2021, and the court directed the parties to file written submissions. - 10 The above averments in the affidavit in support goes to show, in my considered view that the Judge had not gathered enough evidence to proceed under Order 17 Rule 4, to arrive at a judgment in the suit, hence the instructions to file written submissions to be better informed on the crux of the dispute in the suit. Further, still in consideration, it was the Applicant's case as the Plaintiff against the Respondent, as a Defendant in a matter I can only describe as *in* - 15 *personam,* for recovery of money. Therefore, it goes without saying that it behooved the Applicant/Plaintiff to adhere to Court's instruction in its quest to obtain the redress for which it came to Court in the first place, and its failure therefore, paints a picture of an unserious, nonchalant litigant, and or lack of interest in the suit; which are attributes that the Court abhors in the face of backlog of cases in our jurisdiction. These factors informed the Judge's - 20 decision to dismiss the suit, as would any Judge.

Aside from my observations above, and in consideration of the contours laid down by the Hon. Justice Twinomujuni (RIP)(*supra*), I have analyzed and considered the Applicant's averments in the affidavit in support, the Applicant other than mentioning the Advocate's 25 mistake in failure to file the submission as instructed by Court, did not furnish grounds or the circumstances occasioning the mistake for a sufficient cause, granted a proven sufficient cause, by itself might not be the sole reason for granting such an application as this, the Applicant did not state whether the advocate at the time of their mistake still had valid and enforceable instructions to exonerate the Applicant's part in the Advocates mistake.

Nonetheless, whereas the administration of justice normally requires that the substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily debar a litigant from pursuing his rights, see *National Enterprises Corporation v. Mukisa Foods, C. A. Civil Appeal No. 42 of 1997***.**

- 5 However, the Court's non-altruistic administration of substantive justice, and in the exercise of discretion in an Application as the current one, it must take a holistic approach and consider all the factors in the dismissed suit in question and the application seeking to reinstate it. - 10 In this instant application, whereas the Applicant as a litigant did not furnish any steps it took to follow up with the Advocate to ensure the filing of the submissions as instructed, nonetheless, after the dismissal of the suit, the Applicant filed the present application on 12th January, 2023, a month after the dismissal of the main suit; whereas it can fair argument that that was the about the time the Applicant got to know of the dismissal of the suit in question - 15 and took swift action to file the present application. However, I find it hard to comprehend why the Application was just recently fixed for hearing on 8th April 2025, over two years after its filing. The Applicant did not furnish any reasons to explain the delay despite the Respondent raising the same in its submission in reply. Further, for the sake of argument, it is the duty of the Court to fix matters for hearing, and even if there was a delay by the Court - 20 to fix the application for hearing, the application did not furnish any proof of following up with the Court to fix the application for hearing. This observation relates to the Applicant's conduct that can only be said to be dilatory.

Therefore, this application presents an intriguing facet given the circumstances, ordinarily I 25 would be hesitant to grant the application, however considering the fact that it arises from a matter that was at the end stage of litigation, I will painfully grant it to allow a conclusive finding and finality to the dispute in the main suit and save Court's time from otherwise hearing a new suit on the same dispute. In Sabiiti *Kachope and three others v. Margaret Kamuje, S. C Civil Appn. No. 31 of 1997 [1999] KLR 238*, an application for leave to extend 30 time within which to appeal was filed after two years and five months from the date the judgment was passed, was allowed because the Applicant accounted for the delay, but also, the Court the need to bring an ending to disputes. See also the case of *Banco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22.*

- 5 In conclusion, pursuant to Section 98 of the Civil Procedure Act, this Application is allowed, the dismissal of Civil Suit No. 07 of 2017 is set aside, and the time for filing submissions by the parties is enlarged upon the Applicant ensuring institution of the dismissed suit in the following manner: - i. The Plaintiff to file its Submission within 10 days of this ruling. - 10 ii. The Defendant to file its submission within 10 days upon after service by the Plaintiff. - iii. Any rejoinder thereafter to be filed within 4 days after the Defendant's submission.

## Costs.

- 15 It is trite law that costs follow the suit unless there is a strong reason to suggest the contrary and are awarded at the court's discretion. See *Harry Ssempa V Kamabagambire David HCCS 408 of 2014, Lyamuleme David V. AG SCCA No. 4 of 2013, Anglo-Cyprian Trade Agencies Ltd V. Paphos Wine Industries Ltd, [1951] 1 ALL ER 873.* - 20 In the instant Application, having allowed it solely on my discretion to save the Court's time given the advanced stage of the dismissed suit, I therefore award the Respondent the costs of the Application.

## **In Conclusion:**

- 25 I accordingly make the following orders, - a) That this Application is allowed. - b) The dismissal order in Civil Suit No. 7 of 2017 is hereby set aside, and the same suit is reinstated for the filing of submissions. - c) The time for filing of submissions is enlarged in the following manner: - - 30 i. The Plaintiff to file its Submission within 10 days of this ruling. - ii. The Defendant to file its submission within 10 days after service by the Plaintiff. - iii. Any rejoinder thereafter to be filed within 4 days after the Defendant's submission. - 35 d) The Respondent is awarded the costs of the Application.

5 I so order.

**Dated** this\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_2025, delivered electronically and uploaded on **ECCMIS** 30th May

**Ocaya Thomas O. R**

**Judge, 30th May, 2025**