[2025] UGCommC 130

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 1782 OF 2024 (ARISING FROM CIVIL SUIT NO. 713 OF 2018)** 10 **AMBROSOLI INTERNATIONAL SCHOOL ::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

#### **1. ISMAIL SINA**

#### **2. CINDIE ANN SINA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### 15 **RULING**

#### Introduction

This application was brought by way of Notice of Motion under **Section 33 of the Judicature Act, Cap. 13 (now Section 37 of Cap. 16), Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282), Order 9 rule 23** 20 **(1)** and **Order 52 rule 1 of the Civil Procedure Rules, SI 71-1**, seeking:

- 1. That the order dismissing *Civil Suit No. 713 of 2018* be set aside. - 2. An order for reinstatement of *Civil Suit No. 713 of 2018*. - 3. Costs of this application be provided for.

#### Background

25 The background of this application is contained in the affidavit in support deponed by **Mr. Richard Muhereza** the Applicant's Accountant and representative, and is summarized below:

- 5 1. That the Applicant filed *Civil Suit No. 713 of 2018* against the Respondents jointly and severally for breach of contract, special damages, general damages and costs. - 2. That the Applicant has been vigilantly and diligently prosecuting its matter since 2018 and the matter had reached at the level of hearing 10 witnesses. - 3. That in September, 2023 when the matter came up for scheduling before Hon. Lady Justice Cornelia Kakooza Sabiiti, it was adjourned to 12th February, 2024 since none of the Respondents entered appearance. - 15 4. That however, on 12th October, 2023, he was informed by their Counsel that the matter was coming up for hearing on 13th October, 2023 at 10:00am. - 5. That when he and their Counsel appeared before Hon. Lady Justice Cornelia Kakooza Sabiiti on 13th October, 2023, they were informed 20 that the matter has been erroneously fixed since it had been fixed for 12th February, 2024 at 10:00am. - 6. That on 12th February, 2024 when they appeared again before Hon. Lady Justice Cornelia Kakooza Sabiiti, they were informed that the file had been transferred to Hon. Lady Justice Patience T. E. 25 Rubagumya's Chambers for further management. - 7. That when they proceeded to Hon. Justice Patience T. E. Rubagumya's Chambers to follow up on the file, they were informed that the matter had long been dismissed on 13th October, 2023. - 8. That it is in the interest of justice that the order dismissing *Civil* 30 *Suit No. 713 of 2018* be set aside and the suit reinstated for hearing on its merits.

- 5 In reply, the 1st Respondent **Mr. Ismail Sina** on his behalf and on behalf of the 2nd Respondent, opposed the application contending that: - 1. The Applicant has not been vigilantly prosecuting this matter since this is the third time they are applying for reinstatement of the suit. - 2. Due to the conduct of the Applicant and its lawyers of not attending - 10 Court, the Respondents applied for the matter to be dismissed on account of non-appearance of the Applicant. - 3. The hearing notice fixing the main suit for hearing on 13th October, 2023 was served on the Respondents' previous lawyers M/s Marques Advocates by the Applicant on 5th October, 2023. Despite the short 15 notice, the 1st Respondent and his Counsel appeared but the Applicant and its Counsel did not enter appearance. - 4. The Applicant was fully aware that the matter was before Hon. Lady Justice Patience T. E. Rubagumya and not Hon. Lady Justice Cornelia Kakooza Sabiiti as this is indicated on the hearing notice 20 served on them. - 5. There has been undue delay in bringing this application and it is intended to waste Court's time.

In rejoinder, **Mr. Richard Muhereza** the Applicant's Accountant, reiterated his previous averments and further contended that:

25 1. The Applicant's lawyers have been keen on following up and attending to the suit and for the times that the suit has been dismissed and subsequently reinstated, justifiable and sufficient reasons have always been afforded to Court to have the same reinstated.

30 2. The Applicant has not inordinately delayed in filing this application.

- 3. The Applicant has never extracted and served hearing notices for 13th 5 October, 2023 onto the Respondent as they did not know that the suit had been allocated to Hon. Lady Justice Patience T. E. Rubagumya. - 4. The application was brought in good faith and that as a matter of - 10 fact, the Applicant already filed its trial bundle, witness statement and joint scheduling memorandum.

# Representation

The Applicant was represented by **M/s Elau & Ochom Advocates & Legal Consultants** while **M/s Mom Advocates** represented the Respondents.

15 Both parties were directed to file their written submissions, which they did, and the same have been considered by this Court.

# Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case

- 20 of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA No. 55 of 1995*, this Court rephrased the issues to read as follows: - 1. Whether there is sufficient cause to set aside the dismissal order of *Civil Suit No. 713 of 2018*? - 2. What remedies are available to the parties? - 25 Submissions

# Applicant's submissions

Learned Counsel for the Applicant first relied on the cases of *Bishop Jacinto Kibuuka Vs The Uganda Catholic Lawyers Fraternity & 2 Others HCMA No. 696 of 2018* and *Patrick Katto Vs Dirk Ten Brink* 30 *HCMA No. 791 of 2023* for the definition of sufficient cause. That in such

5 cases, Court would consider whether in the circumstances, the Applicant honesty intended to be present at the hearing and also if the litigant shows diligence in the matter.

Relating the above to the case at hand, Learned Counsel submitted that when *Civil Suit No. 713 of 2018* came up for hearing on 31st August, 10 2023 in the presence of the Applicant's lawyer and in the absence of the Respondents before Hon. Lady Justice Cornelia Kakooza Sabiiti, it was adjourned to 12th February, 2024 at 10:00am to enable both parties appear for scheduling as evidenced by a notification dated 6th September, 2023 marked as annexures **"A"** and **"B"**.

15 That on 12th February, 2024 when they appeared again before the trial Judge, they were informed that the file had been transferred to Hon. Lady Justice Patience T. E. Rubagumya's Chambers for further management.

Regarding the issue of inordinate delay, Learned Counsel submitted that the Applicant learnt about the dismissal on 12th February, 2024 and this

20 application was filed on 3rd September, 2024. That therefore, the time difference is not classified as disproportionately large to suit the definition of inordinate delay on the part of the Applicant.

# Respondents' submissions

Learned Counsel for the Respondents submitted that the Applicant failed 25 to demonstrate sufficient cause for non-appearance of its officers or legal representatives on 13th October, 2023.

Learned Counsel submitted that according to paragraphs 5, 6 and 7 of the affidavit in support, it is confirmed that the Applicant and its lawyers were fully aware that the suit was fixed for 13th October, 2023. Further that the 30 hearing notice was extracted by the Applicant and its then lawyers of M/s

5 Marques Advocates and that the hearing notice stated the name of the Judge handling the matter.

Learned Counsel further submitted that no evidence has been adduced to show/prove that despite being aware of the hearing of 13th October, 2023, that the Applicant or its lawyers appeared in Court. Learned Counsel 10 further contended that the Applicant and its Counsel are resorting to use of ECCMIS notifications for their convenience.

On inordinate delay, Learned Counsel contended that the facts in the case of *Abel Belemesa Vs Yesero Mugenyi High Court at Masindi Misc. Application No. 126 of 2019* where the words "inordinate delay" were 15 defined as to mean unusually or disproportionately large were distinguishable from the instant case.

## Analysis and Determination

**Section 98 of the Civil Procedure Act** empowers this Court to make such orders as may be necessary for the ends of justice.

# 20 Further, **Order 9 rule 23(1) of the Civil Procedure Rules** stipulates that:

*"Where a suit is wholly or partially dismissed under Rule 22 of this Order, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the Court* 25 *that there was sufficient cause for nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."*

In the cases of *Florence Nabatanzi Vs Naome Binsobedde SC Civil*

30 *Application No. 6 of 1987* and *Sipiriya Kyarulesire Vs Justine*

- 5 *Bakanchulike Bagambe SCCA No. 20 of 1995*, the Supreme Court while handling such an application laid down principles which can be summarized as follows: - i) First and foremost, the application must show sufficient reason which relates to the inability or failure to take some particular 10 step within the prescribed time. The general requirement notwithstanding each case must be decided on the facts at hand. - ii) The administration of justice normally requires that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily 15 debar a litigant from the pursuit of his rights. - iii) Whilst mistakes of Counsel sometimes may amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law. - iv) Where an Applicant instructed a lawyer in time, his rights should 20 not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirement of the law. - v) A vigilant Applicant should not be penalized for the fault of his Counsel on whose actions he has no control.

The term sufficient cause though not defined by our Civil Procedure Rules 25 has been defined in several cases.

In the case of *Gideon Mose Onchwati Vs Kenya Oil Co. Ltd and Another Civil Suit No. 140 of 2008 [2017) eKLR 65* the Court relied on the definition in the Indian case of *Parimal Vs Veena Alias Bhati [2011] 3 SCC 545*, in which the Court observed that:

7 30 *"Sufficient cause" is an expression which has been used in large number of statutes … In this context, "sufficient cause" means that*

5 *party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to* 10 *exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously."*

It is also pertinent to note that in such cases, the test to be determined is whether the Applicant honestly intended to attend the hearing of the suit.

In the instant case, the Applicant contends that they were prevented from 15 appearing on 13th October, 2023 because the matter had been fixed for 12th February, 2024 before Hon. Lady Justice Cornelia Kakooza Sabiiti, which fact was re-affirmed on 13th October, 2023 when they appeared before the trial Judge. In evidence, the Applicant adduced annexures **"A"** and **"B"**, an ECCMIS notification dated 6th September, 2023, attached to 20 the affidavit in support.

I have carefully analyzed the Court record and indeed on 6th September, 2023, a Court sitting for 12th February, 2024 in Court Room 7 before Hon. Lady Justice Cornelia Kakooza Sabiiti was created as per annexures **"A"** and **"B"**. However, this sitting was cancelled on 2nd October, 2023 and 25 another sitting was created for 13th October, 2023 before Hon. Lady Justice Patience T. E. Rubagumya.

The Respondents contended that the Applicant was aware that the file had been reallocated to Hon. Lady Justice Patience T. E. Rubagumya as they served them with a hearing notice for 13th October, 2023. In rejoinder, the 30 Applicant averred that it has never served the Respondents with a hearing

5 notice for 13th October, 2023 and that it was not aware that the file had been reallocated.

A hearing notice for 13th October, 2023 was issued as per the Court record and it was signed by the Judge handling the matter and thus Counsel for the Applicant ought to have appeared in Court on 13th October, 2023

10 before the Judicial Officer who was now handling the matter following the reallocation of the same.

However, this lapse or mistake on the part of Counsel should not be visited on the Applicant who is the affected party. I am therefore inclined to rely on the case of *AG Vs AKPM Lutaaya SCCA No. 12 of 2002*, in which

15 **Katureebe, JSC**, held that the litigant's interests should not be defeated by the mistakes and lapse of his Counsel. The same was considered in the case of *Godfrey Magezi and Brian Mbazira Vs Sudhir Ruparelia SCC Application No. 10 of 2002*.

In light of the above, given the fact that the Applicant as the affected party 20 was not informed by its lawyer about the reallocation of the matter and in the interest of justice pursuant to **Section 98 of the Civil Procedure Act**, the dismissal order of *Civil Suit No. 713 of 2018; Ambrosoli International School Vs Ismail Sina & Cindie Ann Sina* is hereby set aside and *Civil Suit No. 713 of 2018* is accordingly reinstated.

25 Issue No. 1 is answered in the affirmative.

Issue No. 2: What remedies are available to the parties?

Having resolved issue No. 1 in the affirmative, the following orders are accordingly issued:

- 5 1. The dismissal order of *Civil Suit No. 713 of 2018; Ambrosoli International School Vs Ismail Sina & Cindie Ann Sina* is hereby set aside. - 2. *Civil Suit No. 713 of 2018; Ambrosoli International School Vs Ismail Sina & Cindie Ann Sina* is hereby reinstated. - 10 3. *Civil Suit No. 713 of 2018* is fixed for hearing on 12th June, 2025 at 9:30am. - 4. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered electronically via ECCMIS this **8th** day of **April,**

15 **2025**.

Patience T. E. Rubagumya

**JUDGE**

08/04/2025

20 6:50am