[2024] UGHC 690

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

#### **MISCELLANEOUS APPLICATION NO. 059 OF 2024**

### (Arising from Civil Suit No. 37 of 2019)

JOHN BOSCO BUTALEEBA.................................. $\mathsf{S}$

#### **VERSUS**

### JAMES BUUZABALYAWO KALUMBA

(Administrator of the Estate of ...................................

the Late Yozefu Ssebayiga)

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Ruling

The applicant brought the instant application by way of Notice of Motion under Section 98 of the Civil Procedure Act, Order 9 Rule 27, Order 52 Rules 1, 2 and 3

of the Civil Procedure Rules against the respondent seeking the following; 15

- a. That the order allowing the plaintiff proceed exparte in Civil Suit No. 37 of 2019 be set aside. - b. That the applicant be allowed to defend his claim in Civil Suit No. 37 of 2019. - c. That costs of the application be in the cause.

The application is supported by an affidavit sworn by the applicant and the grounds briefly are as follows;

- 1. That the applicant had sufficient cause for the non-appearance when Civil Suit No. 37 of 2019 came up for hearing on the 16^th day of October, 2023. - 2. That the applicant has at all material times been and is still interested in defending his kibanja interest on the suit land and has a good case against the respondent. - 3. That the applicant will be condemned unheard yet the dispute is in respect of his kibanja. - 4. That the applicant is not guilty of any dilatory conduct neither has he exercised any unreasonable delay in bringing this application.

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5. That it is in the interest of justice that the order granting the respondent an exparte hearing in Civil Suit No. 37 of 2019 be set aside and the applicant/defendant be given a chance to be heard.

The application was opposed through an affidavit in reply sworn by the respondent and the grounds are summarized as follows:

1. That in further reply to paragraph 3 that the dates of adjournment were voiced out to us in court four times, two times in English and two times in Luganda in translation since two files were being heard concurrently.

- 2. That in further reply to paragraph 4 of the affidavit in support, I have been advised by my lawyers that it is on court record that my lawyers prayed to court for an order to proceed exparte on the 27^th day of April, 2023 since the matter had come on several occasions and the applicant had failed to comply with the instructions of court, dates to file scheduling notes, trial bundles and witness statements and on 16^th October, 2023, they still would have asked court to adjourn the matter. - 3. That in further reply to paragraph 4 of the affidavit in support, I have been advised by my lawyers, that it is only the applicant's excuse to court that his lawyer had been involved in a car accident that the judicial officer hesitated and adjourned for the last time painfully on condition that the applicant's lawyer was to prove the accident through a Police report and also give reasons as to why they had failed on several occasions to comply with the filing and hearing dates provided. - 4. That in further reply to paragraph 6, that I have been advised by my lawyers that if the applicant had been vigilant to defend the suit, he would have used that period from the date of 27^th April, 2023 up to 16^th October, 2023 to file the required documents which he did not do. - 5. That in further reply to paragraph 9 of the affidavit in support, I have been advised by my Lawyers that the applicant has demonstrated dilatory conduct on several occasions by undermining court instructions to file scheduling notes, trial bundles and witness statements, prior to the grant of the exparte order on 16^th October, 2023 to which the respondent complained about in several letters to court and the lies told to court that both his counsel had been involved in a car accident in Nsangi. - 6. That in further reply to paragraph 10 of the affidavit in support, the applicant has all intentions of misguiding and wasting both the respondent's and court's time and that this application should be dismissed with costs.

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$\mathsf{S}$

The applicant filed an affidavit in rejoinder whose grounds are briefly as follows;

- 1. That in reply to paragraphs 4, 5, 6, 11 and 12, I wish to state that I have just discovered that I have developed a problem with my hearing sense and on the said date of 23^rd April, 2023, I misheard the hearing date as 17^th October, 2023 which reason prevented me from appearing on the 16^th day of October, 2023 having attended court the previous hearing day. - 2. That I wish to respond further to paragraphs 4, 5, and 6 that, my lawyers have advised me which advise I believe to be true that mishearing the correct hearing date is sufficient reason for my non-appearance and that of my lawyers who intended to appear on the 17^th October, 2023 which date I had communicated to them although the same was a wrong date. - 3. That in reply to paragraphs 10, 13 and 14 I wish to state that I have always been interested in defending the civil suit against me as I have at all times attended court even when my lawyers did not make it during the previous hearings. - 4. That in further reply to paragraphs 14 and 9, I wish to state that I have long before the 16^th October, 2022 with my lawyers made my witness statement and those of my witnesses and as such it is not true that I was going to request for an adjournment. - 5. That in response to paragraphs 15, 16, 17, 20, 21 and 22, I wish to state that the suit kibanja houses my matrimonial home and condemning me unheard is unconstitutional and yet I have demonstrated sufficient cause for my non-appearance on the 16^th October, 2023 when the suit was called for hearing. - 6. That I have been advised by my lawyers that a delay of five months does not amount to dilatory conduct and I am aware that my lawyers' business premises were locked up due to rent arrears for the whole of November and part of December 2023 within which period they were unable to file the instant application early. - 7. That my lawyers were dully instructed in time to file this instant application but my counsel Kanyago Annet's health and that of her children has been on and off since the beginning of the year. - 8. That in response to paragraph 23, my lawyer has advised me further that there is nothing frivolous and vexatious about my application to set aside the order to proceed exparte and it is in the interest of time that the application is allowed.

# Brief background:

The respondent filed H. C. C. S No. 037 of 2019 and when the matter came up for hearing on several occasions the applicant herein kept frustrating the hearing

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$\mathsf{S}$

process by firstly merging the files with Civil Suit No. 053 of 2021 which was proceeding concurrently with other files.

Secondly, by failing to file the Joint Scheduling Memorandum by trying to force the respondent to change his cause of action whereof, the respondent filed the plaintiff's scheduling notes to avoid any unnecessary delays.

Thirdly, by failure to file the necessary court documents despite several reminders by court and lastly, by failure to appear in court on several occasions with the intent to frustrate the respondent. Subsequently, court allowed the respondent to proceed exparte. Hence, the instant application to set aside the exparte order.

Representation: $10$

$\mathsf{S}$

Ms. Annet Kanyago appeared for the applicant while Mr. Buhamizo David appeared for the respondent. Both parties filed written submissions.

Issues:

Whether the applicant had sufficient cause for non-appearance when the suit was called for hearing on the 16^th day of October, 2023? 15

Counsel for the applicant relied on the case of Ketty Nakanja v. Yafesi Wamala and 2 Others, Miscellaneous Application No. 001 of 2019, HCCD 211 (2019) on the definition of sufficient cause as; a mistake by an advocate though negligent maybe accepted as sufficient cause. That in the instant case the application seeks to set

aside the exparte order is grounded on the mistaken date of hearing which the 20 advocate was advised was on 17^th October, 2023 and not 16^th October, 2023 which in this case amounts to sufficient cause. That the applicant has at all times been interested in prosecuting his case, he is not guilty of any dilatory conduct, been vigilant in attending court hearings and he will be condemned unheard if the matter proceeds exparte yet he is not guilty of any dilatory conduct. 25

Counsel relied on the case of National Insurance Corporation v. Mugenyi & Co. Advocates, [1987] H. C. B 28, where it was held that;

"The fact that the applicant and counsel went to court albeit late should have convinced the learned trial magistrate that the applicant and counsel intended to attend the hearing on the material date and time."

Counsel added that in the above case, court reinstated the suit to be heard on its merits.

Counsel for the respondent on the other hand submitted that the principles governing the determination of what amounts to sufficient reason or cause for setting aside an exparte decree under Order 9 Rule 27 of the Civil Procedure Rules

have been severally enunciated in the jurisprudence such as the case of Florence Nabatanzi v. Naome Binsobedde cited with approval in the case of Hikima Kyamanywa v. Sajjabi Chris; C. A. C. A No. 001 of 2006, where the Supreme Court held that; sufficient reason or cause depends on the circumstances of each case and

must relate to the inability or failure to take a particular step in time. Counsel $\mathsf{S}$ added that the instant application lacks merit as the applicant has not disclosed any sufficient reason to have the exparte order set aside. That the applicant was unable to tell court why his documents were never filed nor provided proof of the accident that his counsel was involved in.

#### Whether the applicant is guilty of any dilatory conduct? 10

Counsel for the applicant submitted that the applicant is on record as having been attending all the previous hearings save for his lawyers who had missed the previous three consecutive court sittings. That dilatory conduct are acts done by a party purposely to delay hearing of a case. That in the instant case neither the

applicant nor his counsel are guilty of dilatory conduct. That the applicant had 15 long signed his witness statement and that of his witnesses just that they had not yet been filed by his counsel as evidenced by annextures R1, R2, and R3.

Further, that the applicant has attached proof of the demand note for rent arrears from his counsel as evidence that the premises were locked and not due to either

of their dilatory conduct and also the receipts as proof of sickness of counsel and 20 her daughter. Counsel quoted the case of Roussos v. Habib Virants, S. C. C. A No. 9 of 1993, where it was held that; illness of counsel or a party may amount to sufficient cause.

# Whether this application is vexatious and frivolous?

25 Counsel for the applicant submitted that there is nothing in the application indicating that it is frivolous and vexatious but the applicant is seeking justice to be heard. Counsel prayed that the application be granted and court sets aside the order allowing the respondent to proceed exparte.

Whether the application has been made without unreasonable delay?

- Counsel for the respondent submitted that this matter came up for hearing on $16^th$ 30 October, 2023 and an exparte order was entered on the same day after the applicant and his lawyer's failure to appear in court and provide the proof of the accident thus adjourned to another day. And the instant application was filed five months from the date the exparte order was granted as an afterthought which - amounts to inordinate delay. 35

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Counsel concluded that the applicant in the instant case has not established any sufficient reasons for setting aside the exparte order. That the application is therefore legally untenable, incompetent, was brought in bad faith, devoid of merit and should be dismissed with costs.

#### Whether the applicant has satisfied the grounds for setting aside the exparte order $\mathsf{S}$ in H. C. C. S No. 047 of 2019?

Counsel for the respondent submitted that according to Order 9 Rule 21 of the Civil Procedure Rules, the applicant has to prove that he was not served with the summons of court or that he was prevented by sufficient cause from appearing when the suit was called upon for hearing. That the applicant in the instant case has exhibited disinterest in the suit as such it should be dismissed with costs so as not to occasion an injustice to the respondent.

# Analysis of court:

Order 9 Rule 21 of the Civil Procedure Rules provides that;

- "In any case in which a decree is passed exparte against a defendant, he or 15 she may apply to the court by which the decree was passed for an order to set it aside; and if he or she satisfies the 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, the court shall make an order setting aside the decree as against him or her upon such terms as to 20 costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also." - I have carefully considered the application, the affidavits for and against it, the 25 submissions of both parties, the law and authorities cited there in and resolve as follows:

I will start with the brief outline of court attendance of parties and their counsel.

On 21^st October, 2021; counsel for the plaintiff was present together with the plaintiff, the defendant was present while his counsel was absent. The matter was 30 adjourned to 16^th March, 2022 by H/W Byarugaba.

On 16^th March, 2022; the plaintiff and his counsel were present, counsel for the defendant (Ms. Kanyago) was present while the defendant was absent. Matter was adjourned to $12^{\text{th}}$ May, 2022 by myself.

On 12^th May, 2022; before me, Ms. Kanyago Annet together with Faridah N. counsel for the defendant were in court. Matter was adjourned to 25^th October, 2022.

On 25^th October, 2022; both counsel for the defendant were in court while the plaintiff was in court without his lawyer. And the matter was adjourned to 11^th $\mathsf{S}$ November, 2022.

On 11^th November, 2022 counsel for the defendant did not turn up together with the defendant, the plaintiff and his counsel were present in court. The matter was adjourned to 27^th April, 2022. The trial bundle and witness statements as directed on the $25$ ^th October, 2022 were not filed by either party.

$27^th$ April, 2023; counsel for the plaintiff was in court together with the defendant in the absence of counsel for the defendant who was allegedly involved in an accident. The matter was adjourned to 16^th October, 2023 to produce proof of the accident. The plaintiff on this date filed everything while the defendant filed nothing.

On 16^th October, 2023; counsel for the plaintiff was in court together with the plaintiff, the defendant and counsel were not in court and court allowed the matter to proceed exparte by Justice Nabakoza Flavia.

18^th March, 2024; matter came up where counsel for the plaintiff made his submissions that the matter was proceedings exparte upon the orders granted by 20 Hon. Justice Nabakoza Flavia granted on the 16^th October, 2023.

On this day the matter did not take off because of the pending application to set aside the exparte proceedings. The matter was scheduled for hearing on the 3^rd April, 2024. The parties were ordered to come ready to submit on 3^rd April, 2024.

In the instant case counsel for the applicant submitted that the date was misheard 25 and instead of 16^th October, 2023, they heard 17^th October, 2023 and that was when they came to court. That exparte proceedings had already been granted by Justice Flavia Nabakoza whereof the matter was adjourned to 18^th March, 2024 however, the matter could not proceed because of the pending application to set aside the order. 30

It is my considered view that dates in court are normally communicated by the Hon. Judge and interpreted in the local language by the clerk in open court. If the applicant was having issues with his hearing abilities, he should have come to the clerk to confirm the next hearing date. Which was not done. The ground that the applicant did not hear the next hearing date being 16^th October, 2023 which led

35 to the failure to attend court by himself and his counsel does not amount to a

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sufficient ground. The applicant has not proved to the satisfaction of this court that indeed instead of hearing the 16^th October, 2023, he heard 17^th October, 2023 and he has a hearing problem. No proof was adduced nor any documentation (Medical reports) according to Order 9 Rule 27 of the Civil Procedure Rules to prove that the applicant has problems with his hearing. This ground therefore fails.

The applicant submitted that this being a land matter, it should be determined on its merits. In my opinion the applicant in this case knew that this was a land matter that touches on him, he was in court, he should have been vigilant in pursuing his case and if he was confused about the date then he should have confirmed the same with the clerk which he did not do. So, whose mistake is it? It is him to blame.

Counsel submitted that her office had been locked because of non-payment of rent. Whereas, a demand notice was attached no further details were submitted to court detailing counsel's predicament. For instance, where is the law firm located? When was the law firm reopened, for how long was it closed, when was the due rent paid? This, in my view is an afterthought intended to delay justice.

It was also submitted for the applicant that his counsel has been having ill health since the beginning of the year together with her children. And a few documents were attached to the application, which in my view I do not find sufficient proof of sickness. There is only one lab report that was attached and a number of receipts. Nothing substantial was attached to the application.

The applicant stated that he had made his witness statements and those of his witnesses which were in the custody of his counsel since November 2022. No reason has been fronted as to why the same were never filed.

In the case of Stop and See (U) Limited v. Tropical Africa Bank, H. C. M. A No. 333 of 2010, it was held that; rules of procedure are meant to give parties timelines within which to file and complete their pleadings.

As such parties are expected to follow the timelines given by court because court directives are not given in vain. It is trite law that litigation must come to an end. In Brown v. Dean [1910] AC 373, [1909] 2 KB 573 it was emphasized that in the interest of society as a whole, litigation must come to an end. Parties cannot delay

30 litigation by failing to follow court set timelines and not filing their pleadings as required.

In conclusion, I find that the applicant has presented grounds that are not sufficient to support the application. I therefore, agree with my learned sister Justice Flavia Nabakoza that this matter proceeds exparte. Each party bears their own costs.

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$\mathsf{S}$

I so order.

Right of appeal explained.


OYUKO ANTHONY OJOK $\mathsf{S}$ **JUDGE** $23^{\rm rd}$ May 2024.