[2025] UGHCCD 94

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 1175 OF 2023 (ARISING FROM HCCS NO. 0038 OF 2001) A. K. TRANSPORTERS LTD :::::::::::::::::::::::::::::: APPLICANT/DEFENDANT VERSUS MULANI MOOSA :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT/ PLAINTIFF**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA RULING**

### **Introduction**

[1] This application was brought by Notice of Motion under Section 98 of the CPA, Order 9 Rules 23 and 27 and Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking orders that;

- 1. The ex parte judgment and decree in HCCS No. 38 of 2001 be set aside. - 2. HCCS No. 38 of 2001 be reinstated and the applicant/ defendant be allowed to present the company's witnesses and evidence. - 3. Any resultant execution order pending determination of this application be set aside. - 4. The costs of this application be provided for.

[2] The grounds of the application are set out in the Notice of Motion and in an affidavit in support of the application deposed by **Justine Aliba**, the applicant's in-house legal officer. Briefly, the grounds are that the applicant filed a defense through the instructed lawyers of M/s Mayanja & Associates, Advocates, Solicitors & Legal Consultants. The instructed advocate appeared in respect of the proceedings on a number of occasions and particularly on 24th March 2021 and 8th June 2021 with the first defense witness but court was not able to proceed on the said dates. The applicant's advocate thereafter fell gravely ill and his clerk did not communicate to him of any documents served onto his firm. The advocate as such did not inform the applicant's in-house counsel of his illness and inability to attend the court proceedings on the subsequent occasions. The duly instructed advocate informed the deponent that he next became aware of the matter when he was served with taxation proceedings by the respondent's counsel. The deponent stated that the mistake of counsel should not be visited upon the applicant company which has previously shown willingness to abide by all court processes. She further stated that the applicant shall suffer injustice if the application is not allowed. On the other hand, the respondent will not be prejudiced in any manner whatsoever and neither will he suffer any injustice if the application is granted by the Court. The deponent concluded that it is just, equitable and in the interest of justice that the application be granted.

[3] The application was opposed through an affidavit in reply deposed by **Mulani Moosa**, the respondent. He stated that on the date the case came up for defence hearing, the reason counsel for the applicant never proceeded with the hearing was because they were not ready to proceed although the respondent's lawyer was ready to cross examine the defendant's witnesses and on the subsequent dates, the applicant's counsel and witnesses never appeared. The deponent averred that no medical evidence has been adduced to prove that the applicant's lawyer has ever been sick and it is the same negligent advocate who has again been entrusted with the instant application. He further averred that since 1998 when the accident occurred until 2020, the applicant failed to produce a single witness even when its counsel requested for only two months but after one year, he had no witnesses to present. He also averred that the applicant has not attached any witness statement but only a witness summons after 23 years of litigation. He finally stated that he has been advised by his advocate that the court proceeded under Order 17 rule 4 of the CPR and cannot rehear the case as it is functus officio.

#### **Representation and Hearing**

[4] At the hearing, the applicant was represented by **M/s Muyanja & Associates** while the respondent was represented by **M/s Nabukenya Mulalira & Co. Advocates**. The hearing proceeded by way of written submissions that were duly filed by both counsel and have been considered in the determination of the matter before Court.

[5] In their submissions, counsel for the respondent raised a preliminary objection concerning the propriety of the instant application to the effect that the court having proceeded under Order 17 rule 4 of the CPR, the option available to the applicant was to appeal against the judgment and not to apply for setting aside of the same.

#### **Submissions**

[6] Counsel for the respondent submitted that once a matter proceeds under Order 17 rule 4 of the CPR, such an order cannot be set aside and the only remedy open to an applicant is to appeal after the whole case has been determined. Counsel relied on *Saggu v Roadmaster Cycle (U) Ltd [2002] E. A 258 (COA)*. Counsel submitted that in this case, the applicant was directed to file witness statements in 2020 to which they did not comply. On 29th October 2020, the court gave them a last chance to file the witness statements by 24th March 2021 but had not filed by 26th May 2022 when the matter came up for hearing. The court therefore proceeded to determine the matter basing on the evidence of the plaintiff, now respondent. Counsel also referred the court to the decision in *Captain Gerald Willie Okweyo & Another v Okedeke Ismail & Another, HCMA No. 217 of 2012* and submitted that a decision taken by the court under the said rule is a judgment and decree that can only be appealed. Counsel for the applicant made no response to the above submission.

#### **Determination by the Court**

[7] Order 17 rule 4 of the CPR provides that;

*"Where any party to a suit to whom time has been granted fails to produce his or her 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".*

[8] On the facts before me, the court record indicates that counsel for the defendant had indicated to court that the defendant intended to call five witnesses and had been directed to file all their witness statements by 8/01/2021. Only one witness statement was filed by 24/3/2021. When the matter next came up for hearing, despite evidence of service of a hearing notice upon counsel for the defendant, the defendant and counsel were absent and no explanation was given to the court for their absence and non-compliance with the court directions on filing of witness statements. The court took the view that the defendant and counsel had failed to take necessary steps to prosecute the defense case, particularly in a very old case filed in 2001, which was probably the oldest in the court system at the Division. The court, therefore, proceeded pursuant to the provision under Order 17 rule 4 CPR to order closure of the defence case, without leading any evidence, directed the filing of written submissions and determined the matter on its merits.

[9] It is a settled legal position that once a matter proceeds under Order 17 rule 4 of the CPR, the resultant decision is a judgment and decree which cannot be set aside by the same court but can be appealed against by the aggrieved party. See: *Pentecostal Assemblies of God Lira Limited v Pentecostal Assemblies of God Limited & Another, HCMA No. 014 of 2018*. In an earlier Court of Appeal decision, cited by learned counsel for the respondent, in the case of *Saggu v* *Roadmaster Cycle (U) Ltd [2002] E. A 258,* the Court categorically stated that where a matter was determined under Order 17 rule 4 of the CPR, *"… the resultant default court decision was therefore a decree; a decree is the result of a reasoned judgment after a full hearing of either party or both parties. The learned trial judge had the benefit of only one party's evidence, the other party having failed to adduce evidence and took a reasoned decision. The resultant decree was appealable as of right"*.

[10] In the instant case, the circumstances appear to be akin to those dealt with by the Court of Appeal in the above cited *Saggu case*. The court ordered for the closure of the hearing of evidence after hearing the plaintiff's case and determined the matter on its merits. It is not legally tenable, therefore, to seek the setting aside of such a decision by invoking the provisions under Order 9 rule 22 or 27 of the CPR. The remedy available to the applicant was to appeal against the judgment and decree of the Court. This is a matter of great substance which cannot be treated as a technical procedural aspect. The application is, therefore, incompetent before the Court and no amount of stretching of the principle of substantive justice can be invoked to save the application. The application is accordingly dismissed with costs to the respondent.

It is so ordered.

*Dated, signed and delivered by email this 1st day of July, 2025.*

**Boniface Wamala JUDGE**