[2025] UGCommC 129

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 1042 OF 2024 (ARISING FROM CIVIL SUIT NO. 37 OF 2019)**

10 **BYARUHANGA MUHAMUDU ::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **KYAZZE JULIET NALWOGA :::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

## **RULING**

## 15 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 27** and **Order 52 rules 1 and 3 of the Civil Procedure Rules SI 71-1**,

- 20 seeking orders that: - 1. The ex parte proceedings, judgment, and the decree issued against the Applicant in *Civil Suit No. 37 of 2019* herein be stayed and set aside. - 2. The Applicant be granted leave to file his written statement of defence - 25 in *Civil Suit No. 37 of 2019*. - 3. An order doth issue staying execution of all the consequential orders arising out of the decree entered against the Applicant in *Civil Suit No. 37 of 2019*. - 4. Costs of this application be provided for.

#### 5 Background

The background of this application is detailed in the affidavit in support deponed by **Mr. Byaruhanga Muhamudu** the Applicant herein, and is summarized below:

- 1. That the Respondent instituted *Civil Suit No. 37 of 2019* against - 10 him, which matter proceeded ex parte, and judgment was entered against him in his absence. - 2. That he only learnt about the judgment and Court orders against him on 23rd June, 2024 from his lawyers M/s Ahamark Advocates representing him in other matters at the Commercial Court Division. - 15 3. That the Respondent, through her lawyers, has already extracted the decree and taxed the bill of costs and is due to execute the same against him to his detriment. - 4. That he has never been served any Court summons or pleadings or hearing notices in respect of *Civil Suit No. 37 of 2019* and neither 20 was he aware of the Court proceedings. - 5. That there is a written statement of defence on Court record filed by M/s Higenyi & Co. Advocates, but he was not aware of the same as he never instructed them to receive Court process on his behalf or file any pleadings in this matter. - 25 6. That he is not indebted to the Respondent to the tune of UGX 170,000,000/=. - 7. That the Respondent has taken overt active steps to execute the orders issued in *Civil Suit No. 37 of 2019*, including taxation of the bill of costs, and unless restrained by this Court, the Respondent will 30 execute the orders for which stay is sought.

- 5 The Applicant also filed an additional affidavit in support of the application deponed by **Mr. Higenyi Micheal**, a lawyer well conversant with the facts, and is summarized below: - 1. That he is the Managing Partner of M/s Higenyi, Ngugo & Wadamba Advocates and was once the Applicant and Respondent's lawyer in 10 their transactions of spirits and the suit property. - 2. That due to the relationship between the two parties, when the Respondent instituted *Civil Suit No. 37 of 2019*, she served the Applicant at their law firm. - 3. That he abandoned *Civil Suit No. 37 of 2019* because he could not 15 proceed with the matter in Court without formal instructions. - 4. That he has never seen or heard from the Applicant from 2019 until 2023 when judgment was delivered against him.

In her affidavit in reply, **Ms. Kyazze Juliet Nalwoga,** the Respondent, opposed the application contending that:

- 20 1. The affidavit in support of the application contains utter lies as the Applicant, filed his written statement of defence to the suit on 20th February, 2019 and was actively represented by M/s Higenyi, Ngugo & Wadamba Advocates. - 2. As proof of active involvement, the Applicant, on several occasions, 25 appeared with his lawyer when the matter was forwarded for mediation and even prepared the mediation summaries. - 3. The Applicant and his lawyers continued to frustrate her from the time of mediation when they stopped showing up. - 4. On 16th March, 2021, her lawyers served the Applicant with a letter 30 requesting a joint scheduling, and his lawyers acknowledged receipt of the same.

5 5. The Applicant's pleadings are devoid of merit and are intended not only to delay but cheat her of justice and recovery of her money, and there is no justifiable cause except to waste the Court's time.

#### Representation

The Applicant was represented by Learned Counsel Alex Luganda and 10 Learned Counsel Ayubu Nampala of **M/s Ahamark Advocates** while Learned Counsel Joshua Kamoga and Learned Counsel Nandyose Linah of **M/s Kintu Nteza & Co. Advocates** represented the Respondent.

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

#### 15 Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case 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 ex parte judgment - 20 and decree in *Civil Suit No. 37 of 2019*? - 2. What remedies are available to the parties?

In the written submissions, Learned Counsel for the Respondent raised a preliminary point that the additional affidavit filed on 7th March, 2025 by the Applicant is procedurally irregular and unacceptable and should be 25 struck off the record.

# **Order 6 rule 28 of the Civil Procedure Rules** stipulates that:

*"Any party shall be entitled to raise by his or her pleadings any point of law, and any point so raised shall be disposed of by the Court at or*

5 *after the hearing; except that by consent of the parties, or by order of the Court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."*

Owing to the above, I shall proceed with consideration of the preliminary point so raised.

# 10 Respondent's submissions

The Respondent's contention is that the procedure of applications of this nature is that after the affidavit in support, the affidavit in reply is filed and then a rejoinder but not filing a supplementary affidavit after a reply where the Respondent is unable to respond to the same as it is contrary

15 to the principles of natural justice.

# Applicant's submissions

In the submissions in rejoinder, the Applicant's Counsel contended that

20 the Respondent is estopped from raising such a ground because the same was filed in Court and served on the Respondent before 10th March, 2025, the date fixed for hearing of this application.

Further, that the Respondent had a chance to respond to the same but chose not to. In addition, that at the hearing, Court inquired whether they

25 desired to file a rejoinder before Court directions but she did not indicate so.

# Analysis and Determination

It is procedural that applications to be determined by affidavit evidence, 30 all the affidavits and relevant documents must be filed and served to the opposite party before the hearing of the application. (See the cases of *Dr. Lam-Lagoro James Vs Muni University, HCMC No. 07 of 2016*, *Victoria Seeds Limited & Another Vs Lawbert Consults and Agencies (U) Ltd*

5 *HCMA No. 1121 of 2019*, *Surgipharm (U) Ltd Vs Uganda Investment Authority & Another HCMC No. 65 of 2021).*

In the case of *Surgipharm (U) Ltd Vs Uganda Investment Authority & Another (supra)*, **Hon. Justice Boniface Wamala** held that:

10 "*As such, even where no affidavit in rejoinder is filed but the pleadings have closed with the filing of an affidavit in reply, a party would not be at liberty to file a supplementary affidavit after the closure of pleadings without seeking the Court's leave and giving the other party an opportunity to respond to the additional* 15 *averments. The only question that arises is, when do pleadings in that kind of proceedings close in the absence of an affidavit in rejoinder*?"

In reply as to when the pleadings close, **Hon. Justice Boniface Wamala**

20 relied on **Hon. Justice Stephen Mubiru's** view in the case of *Dr. Lam-Lagoro James Vs Muni University (supra)*, and held that pleadings close before the date fixed for the hearing of the particular application.

I have looked at the Court record and observed that the Notice of Motion 25 was admitted by the Court on 11th September, 2024. The Respondent filed her affidavit in reply on 18th September, 2024. The additional affidavit was filed on 7th March, 2025; two days before the hearing of the application on 10th March, 2025.

30 Further, at the hearing, Court observed that an affidavit in rejoinder had not been filed and Counsel for the Respondent stated that they were ready to proceed. Learned Counsel for the Respondent on the hearing date made no mention of the additional affidavit in support of the application nor the need to respond to the averments therein. Court subsequently gave 35 Counsel the schedules for filing written submissions.

- 5 Accordingly, as guided by the above authorities, it is established that the additional affidavit in support of the application was filed before the hearing date and the closing of the pleadings. Accordingly, I find the additional affidavit in support of the application, deponed by Mr. Higenyi Micheal proper before this Court. The preliminary point is therefore - 10 overruled.

I shall now proceed to resolve the matter on its merits.

Issue No. 1: Whether there is sufficient cause to set aside the ex parte judgment and decree in *Civil Suit No. 37 of 2019*?

Applicant's submissions

15 Learned Counsel for the Applicant relied on the law under which this application was brought and the case of *Bishop Jacinto Kibuuka Vs The Uganda Catholic Lawyers Society Fraternity & Others HCMA No. 696 of 2018* for the definition of sufficient cause.

Counsel then submitted that it is a requirement under **Order 5 rule 10 of**

20 **the Civil Procedure Rules** for service to be made on the Defendant in person or his or her appointed agent.

That in the instant case, the Applicant was never served with the summons in *Civil Suit No. 37 of 2019*. Learned Counsel cited **Regulation 2(1) of the Advocates (Professional Conduct) Regulations SI 267-2** and the 25 case of *Kabale Housing Estate Tenants Association Ltd Vs Kabale Municipal Local Government Council S. C Civil Application No.15 of*

*2013*, in which Court held that a suit without instructions is incompetent as Counsel must appear in Court with full instructions and authority from his client. - 5 Learned Counsel also contended that the right to be heard is a nonderogable right as enshrined under **Article 28 and 44(c) of the Constitution of the Republic of Uganda, 1995** and the Courts are enjoined at all times to resolve disputes before them on their merits and that a party should not be shut out of audience of Court except in the - 10 rarest of circumstances. That the Applicant denies indebtedness to the Respondent as the said sum was repaid, and yet he is languishing in prison.

In addition to the above, Counsel submitted on the proposition that mistake of Counsel should not be visited on the client.

15 Respondent's submissions

Learned Counsel agreed with the rules of service of the Court process under **Order 5 of the Civil Procedure Rules** but contended that whereas the Applicant argues that he was never served with the Court summons or pleadings, a written statement of defence was filed on 20th February,

20 2019, mediation was conducted and, on several days, the Applicant himself attended and when he was unable, a letter was written by his then lawyers of M/s Higenyi, Ngugo & Wadamba Advocates on 23rd October, 2019.

Learned Counsel contended that the argument of mistake of Counsel as 25 presented by the Applicant was approbating and reprobating on the same issue since he could not claim that the lawyer represented him without instructions and then that he made a mistake.

## Analysis and Determination

**Section 98 of the Civil Procedure Rules** empowers this Court to make 30 such orders as may be necessary for the ends of justice. Further, **Order 9**

5 **rule 27 of the Civil Procedure Rules** provides for setting aside a decree passed ex parte against a Defendant.

The Applicant therefore, has to satisfy the Court that the summons were not duly served or that he was prevented by any sufficient reason or cause, from appearing when the matter was called for hearing.

- 10 Though the law does not define what amounts to sufficient cause, case law has endeavored to define the same and in the case of *Rossete Kizito Vs Administrator General & Others, SCCA No. 9 of 1986*, it was stated that "*sufficient reason (cause*)" relates to some inability or failure to take a particular step in time. - 15 In the cases of *Florence Nabatanzi Vs Naome Binsobedde SCCA No. 6 of 1987* and *Sipiriya Kyarulesire Vs Justine Bakanchulike Bagambe Civil Appeal 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 Applicant must show sufficient reason which 20 relates to the inability or failure to take some particular 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 25 and that errors and lapses should not necessarily 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.

- 5 iv. 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 requirement of the law. - v. A vigilant Applicant should not be penalised for the fault of his Counsel, on whose actions he has no control. - 10 From the above principles, it is observed that whether there is sufficient cause or not, the Court must be conscious of the object of offering substantive justice to all the parties concerned and that the technicalities of the law should not be an obstacle.

I have looked at the Court record and observed that the Respondent filed

15 *Civil Suit No. 37 of 2019* against the Applicant. It was based on the facts that vide a Sale Agreement dated 9th October, 2015, the Respondent purchased a plot of land with a house structure thereon located at Wamala Village, Nabweru Sub County-Wakiso District from the Applicant at a consideration of UGX 170,000,000/=, which was fully paid in instalments 20 and acknowledged by the Applicant. However, the Applicant refused to

grant vacant possession of the suit property.

On 20th February, 2019, M/s Higenyi, Ngugo & Wadamba Advocates filed a written statement of defence, but no appearance was made by the Applicant. Consequently, the matter proceeded ex parte against the 25 Applicant and judgment was entered in favour of the Respondent. The Applicant now contends that he was never served with the summons in the suit and that the written statement of defence on record was filed

without his instructions.

On the other hand, the Respondent contends that the Applicant was duly 30 served as per the affidavit of service on record and that he filed a written statement of defence and even entered appearance during mediation.

5 I have carefully perused the written statement of defence and mediation summary, annexures **"A"** and **"B"** respectively and they reflect that they were drawn and filed by M/s Higenyi, Ngugo & Wadamba Advocates. However, Counsel Higenyi Micheal who filed the written statement of defence in issue, deponed an additional affidavit in support of the 10 application wherein he averred that they were served with the Applicant's summons in *Civil Suit No. 37 of 2019* because of his previous working relationship with the Applicant. That however, he tried to find the Applicant and was unable to. That since time was running out, he decided to file a written statement of defence pending formal instructions. The 15 above averments were not contested by the Respondent.

**Order 5 of the Civil Procedure Rules** is instructive, on the procedure and manner of effecting Court summons. **Rule 10** thereof, provides that wherever it is practicable, service shall be made on the Defendant in person unless, he or she has an agent empowered to accept service, in 20 which case service, on the agent shall be sufficient.

In the case at hand, service of the summons in *Civil Suit No. 37 of 2019* was effected on Counsel Higenyi Micheal of M/s Higenyi, Ngugo & Wadamba Advocates. As averred by Counsel Higenyi himself, he had no instructions to accept service or file a written statement of defence on 25 behalf of the Applicant. Counsel Higenyi Micheal further deponed that he tried to find the Applicant but was unable to.

Much as service on a party's Advocate is presumed to be service on the party themselves, the Advocate must be duly appointed to act on the client's behalf as per **Order 3 rule 1 of the Civil Procedure Rules**. 30 Therefore, since it is undisputed that Counsel Higenyi Micheal acted without instructions from the Applicant, then he was not duly appointed

- 5 to accept service or file a written statement of defence on behalf of the Applicant. As a result, since the Respondent effected service of the summons on Counsel Higenyi Micheal of M/s Higenyi, Ngugo & Wadamba Advocates, who was not duly appointed to accept service or defend the suit on behalf of the Applicant, then the summons in *Civil Suit No. 37 of* - 10 *2019* were not duly served onto the Applicant.

Furthermore, the Respondent averred that the Applicant was aware of the proceedings against him since he even attended some mediation sessions. However, no evidence has been presented to show that the Applicant ever attended the mediation sessions personally.

- 15 In summation, I find that the summons in *Civil Suit No. 37 of 2019* were not duly served onto the Applicant and therefore, the Applicant was condemned unheard contrary to the right to a fair hearing as enshrined under **Article 28 of the Constitution of the Republic of Uganda, 1995**. Accordingly, issue No. 1 is answered in the affirmative. - 20 Issue No. 2: What remedies are available to the parties?

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

- 1. The ex parte proceedings, judgment, and the decree issued against the Applicant in *Civil Suit No. 37 of 2019* are hereby set aside. - 25 2. The execution of all the consequential orders arising out of the decree entered against the Applicant in *Civil Suit No. 37 of 2019* are hereby set aside. - 3. The Applicant is hereby granted leave to file his written statement of defence in *Civil Suit No. 37 of 2019*, and serve the same on the 30 Respondent within fifteen (15) days from the date of this Ruling.

- 5 4. The Respondent shall file a reply to the written statement of defence within fifteen (15) days after receipt of the written statement of defence. - 5. Costs of this application shall be in the cause.

I so order.

10 Dated, signed, and delivered electronically via ECCMIS this **27th** day of **March, 2025**.

Patience T. E. Rubagumya **JUDGE** 27/03/2025 15 6:55am