[2025] UGCommC 199

## 5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 0773 of 2025 (ARISING FROM CIVIL SUIT NO: 1121 OF 2024)

## CASEMENTS (AFRICA) LTD ================== APPLICANT

### VERSUS

SEROMA LIMITED=========================RESPONDENT

## BEFORE: HON. LADY JUSTICE SUSAN ODONGO

#### RULING

This application was instituted by Notice of Motion under the provisions of Section 96 and 98 of the Civil Procedure Act, Cap 282, Order 36 rule 11 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules SI 71-1 for orders that: 25 the default judgement entered by this Honorable Court in High Court Civil Suit No. 1121 of 2024 in favour of the respondent be set aside; that the execution of the decree arising from the said suit, and the taxation hearing be stayed; that Miscellaneous Application No. 2572 of 2024 be heard on its merits and costs of the application be in the cause.

### 30 Background

The respondent/plaintiff filed civil suit no. 1121 of 2024 by way of summary procedure for recovery of Ugx 53,944,500/=, interest and costs. Summons were


5 issued to the applicant/defendant to file an application for leave to appear and defend the claim. However, the applicant/defendant did not comply and default judgement was entered in favour of the respondent.

The applicant's explanation for this is that his lawyers, who prepared the application for unconditional leave to appear and defend the suit, sent the Affidavit in support of the Application to the applicant on 30 10 th October, 2024 for signing and the applicant accordingly signed the same. However, due to the negligence and inadvertence of counsel, the pleadings were never uploaded on the ECCMIS platform of the Judiciary. An application seeking Extension of Time within which to appear and defend the suit (MA 2572 of 2024) was filed on 27 15 th November, 2024. In spite of the filing of this application, the deputy registrar went ahead and granted a default Judgement to the respondent on 13th January, 2025. The respondent has since filed a Bill of Costs and is in the process of applying for execution of the Decree.

# Application and affidavit in support

20 The provisions of the law and the orders sought in this application have been set out in the preamble to this ruling.

This application was supported by an affidavit deponed by Abid Alam, the Managing Director of the Applicant. He averred that indeed the lawyers with instructions to file the application for unconditional leave to appear and defend the suit drafted the application on 30 25 th October 2024 and he signed the Affidavit in support of the application. That due to the inadvertence and negligence of counsel in personal conduct, the application was never uploaded on ECCMIS Platform (annexture A). That an application seeking extension of time within which to seek leave to appear and defend the suit was filed on 27th November


5 2024 (annexture B). That in spite of the application filed the Registrar went ahead and granted a default judgement to the respondent on 13th January 2025. That, the respondent filed a bill of costs for taxation and is in the process of applying for execution of the default That the applicant has a strong defence to the main suit, a copy of the Written Statement of Defense marked annexture D 10 is attached. That the applicant will suffer irreparable loss if an order for stay of execution is not granted and the respondent proceeds to execute the decree.

## Representation and Hearing:

When this matter was called on for hearing, the applicant was represented by Counsel Anne Karungi. The respondent did not appear in court and neither did 15 he file a reply to the application. The record shows that summons and notices were served upon the respondent. The applicant proceeded to address the court by written submissions and the court has considered the same in the determination of this application.

## Issues for determination

20 The Applicant proposed three issues. Having reviewed them within the context of the Applicant's pleadings, I find that they need to be recast. According to Order 15 rule 3 of The Civil Procedure Rules, the court may frame issues from all or any of the following materials; - (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of the 25 parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; and (c) the contents of documents produced by either party. The court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy


5 between the parties shall be so made or framed (see Order 15 rule 5 of The Civil Procedure Rules).

The singular issue is whether the applicant has demonstrated that he had good cause for failing to file the application to appear and defend the suit so as to warrant grant of the prayers made under this application.

## 10 Submissions of Counsel for the Applicant

Counsel relied on O.36 rule 11, O.29 rule 2 of the CPRs S. I 71-1 and *Spencon Services Limited v Onencan Habib,* Civil Appeal 0092 of 2016 to argue that the position of the law is that in a suit against a Corporation, the summons may be served;

- 15 a) On the secretary, or Director or other Principal officer of the Corporation, - b) By leaving it or sending it by post at the registered office of the Corporation.

It was counsel's argument that there is no identity in the Affidavit of Service dated 22 20 nd October, 2024 arising from the main suit, of the person who received the summons and in what capacity they received them on behalf of the applicant. Counsel contended that this is contrary to rules governing service of summons on a corporation.

Counsel contended further that the framers of the law were strict with the 25 requirement of serving a principal officer of the company and the requirement for his designated office to be stated in the Affidavit of Service because of the magnitude of the failure to respond to court processes has on a corporation financially. It was counsel's contention that in the instant case, there was no


5 proper service of court process on the applicant as required by law hence the need to set aside the default judgment entered in HCCS No.1121 of 2024.

Further, Counsel relied on *Patrick Katto V Dirk Ten Brink* Misc. Application 791 of 2023 where Hon. Justice Ocaya Thomas (JHC ) cited with approval the Supreme Court of India decision of *Parimal V Veema* Civil Appeal No. 1467 of

10 2011 which defined sufficient cause to mean adequate or enough and that the party had not acted in a negligent manner or there was a want of bonafide 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."

The Learned Judge, went ahead to hold that however, the facts and 15 circumstances must afford sufficient ground to enable the court exercise discretion for the reason that whenever, the court exercises discretion it must be done "judiciously". The Learned Judge further stated on page 6 of his ruling that, "good cause" requires a party to show legally sufficient reason why the court should exercise discretion in their favour.

20 Counsel argued that a mistake of counsel should not be visited on a poor litigant and relied on the case of *Banco Arabe Espanol V Bank of Uganda* [1999] 2 EA 22 where it was held that;

"A mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. Such mistake, or as the case maybe, 25 constitutes just cause entitling the trial judge to use his discretion so that the matter is considered on its merits."

In *AG V AKPM Lutaaya* SCCA No.12 of 2007, Katureebe JSC (as he then was) held that the litigant's interests should not be defeated by the mistake and lapses of counsel.



- 5 Similarly in *Godfrey Mageze & Another V Sudhir Ruparelia,* SCC Application No.10 of 2002, Karokora JSC held that the omission, mistake or inadvertence of counsel ought not to be visited on the litigant to the striking out of his Appeal thereby denying him justice. - Counsel argued that in the instant case, due to the negligence and inadvertence 10 of counsel for the applicant, pleadings were never uploaded on the ECCMIS platform of the Judiciary. Hence, the birth of Miscellaneous Application No.2572 of 2024. It was counsel's prayer that the default Judgement entered on the 13th January, 2025 and Decree signed on the 29th May, 2025 arising from HCCS No. 1121 of 2024 be set aside, any pending execution of the Decree 15 mentioned herein be stayed and Miscellaneous Application No. 2572 of 2024 be reinstated and heard on its merits.

## Court's Determination

It is trite that when an endorsed plaint and accompanying affidavit are filed, the 20 court shall ensure that a summons is served upon the defendant. The defendant may not appear or defend the suit except with leave of the court which leave is sought by formal application. If the defendant fails to make such an application, the plaintiff shall be entitled to judgement for an amount not exceeding that claimed in the plaint. *(see: Order 36 rule 3 of The Civil Procedure Rules).*

- 25 Order 36 rule 11 of The Civil Procedure Rules empowers court, if satisfied that the service of the summons was not effective, or for any other good cause, which shall be recorded, to set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms - 30 as the court thinks fit. The applicant should satisfy court either that no effective


5 service or show other good cause relating to failure by applicant to take necessary steps at the right time (see: *Caltex Oil (U) Ltd v. Kyobe [1988-90] HCB 141*).

I observe from the rule that for the court to exercise the discretionary powers stated therein, either of the following two conditions should be met; the court 10 must be satisfied that the service of summons was not effective or there should exist good cause that prevented the applicant from applying for leave to appear and defend the suit.

In the applicant's evidence, he advanced one reason for setting aside the decree, that is, for good cause he was prevented from filing his application to

15 appear and defend the suit in time for his advocate neglected and or failed to upload the application on the ECCMIS system even after the applicant had signed the affidavit in support of the application. As an afterthought, the applicant's counsel stated in submissions that the reason for failure to file his application in time was that the service of the summons to apply for leave to 20 appear and defend the suit, was not properly effected.

First of all, this contradicts the evidence led by the applicant that his counsel prepared an application and supporting affidavit for signature. In my view, Counsel's drafting of the application must have been in response to a notice. The Applicant did not lead evidence on how his counsel was notified about the

- 25 suit. According to the record, on 10th October 2024 the court issued summons to apply for leave to appear and defend the suit within 10 days from service. From the affidavit of service deponed by Balyegisa Charles, service was undertaken on 21st October 2024. The applicant filed an application on 30th October 2024. The timeframe clearly demonstrates that the applicant's counsel - 30 was notified which is the purpose of summons. Secondly this explanation was

 - 5 not pleaded within the affidavit in reply and constitutes oral evidence adduced from the bar, which is inadmissible in these proceedings. It is trite law that evidence cannot be adduced from the bar and the submissions of counsel do not bind court. Accordingly, I am precluded from considering such evidence presented through counsel's submissions. I am, therefore, to look only at the - 10 pleadings, in this case the notice of motion and the supporting affidavit (see: *Igamu Joanita Vs Uganda Court of Appeal Criminal Application No.107 of 2013*.

I now turn to the applicant's good cause for failure to file the application. Under The Civil Procedure Rules, the expressions *"good cause"* and *"sufficient cause"* have been used synonymously;- *"good cause"* appears in provisions such as Order

- 15 1 rule 15, order 9 rule 21 order 9 rule 23, while *"sufficient cause*" is found in provisions such as order 9 rule 18, order 9 rule 20 and other instances. The provisions containing these phrases do not include specific language from which one can derive an explanation as to why one term is used over the other. Basically, neither The Civil Procedure Rules, or any statutes, or court directions, - 20 provide a formal distinction between "good cause" and "sufficient cause". Case law has rendered some clarification on the difference which has proven beneficial.

For its part, *Black's Law dictionary 8th Edition at pg 231* defines sufficient cause to be analogous to good cause or just case which simply means legally sufficient 25 reason.

The Indian Courts have in their judicial decisions rendered definition to the terms *"good cause"* and *"sufficient cause".* Accordingly, there is no material difference between the facts to be established for satisfying the two tests of *"good cause"* and *"sufficient cause".* Every *"sufficient cause"* is a *"good cause"* and vice 30 versa. However, if any difference exists it can only be that the requirement of


5 *"good cause*" is complied with on less proof than that of *"sufficient cause".* (see: *Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993; Madanlal v. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. Gobardhan Sao & Ors., AIR 2002 SC 1201).*

In respect to the English courts, *"good cause"* is a discretionary standard often 10 used in procedural rules where a party must justify an action or omission. *"Good cause"* is a proper explanation or excuse convincing in the eyes of the court for failure to do something. *(See: Revici v Prentice Hall [1969] 1 All ER 772). "Sufficient cause"* is one where one shows excusable reasons for procedural noncompliance or delay. Sufficient cause should be interpreted in a way that is 15 practical and fair, considering both justice to the applicant and prejudice to the other side. The reason must be adequate to satisfy the court that a procedural lapse should be excused. One must show that he/she was not negligent or willfully disobedient. The Court held further that good reasons are likely to arise from circumstances outside the control of the party in default. *(Mitchell V News*

20 *Group Newspapers Ltd [2013] EWCA Civ 1537).*

South African judicial decisions found that there is no exhaustive definition of the meaning of *"good cause"* and *"sufficient cause"* giving a court a wide discretion in this regard. (See: *Chetty NO and Others V Kingsmead Office Park Owners Association NPC (rf) (KZN/DBN/RC 3171/2021 [2023] ZAKZNRD 5 (9 February* 25 *2023)).* The Court applied the statements of Schreiner JA in *Silber v Ozen Wholesalers, (1954 (2) SA 345 (A) at 352H-353A)* that,

> *"The meaning of "good cause" in the present sub rule, like that of the practically synonymous expression "sufficient cause" which was considered by this court in Cairn's Executors V Gaarn, 1912 A. D. 181, should not lightly be made the subject*

- 5 *of further definition. There are many decisions which have the same or similar expressions, have been applied in the grant or refusal of different kinds of procedural relief. It is enough for present purposes to say that the defendant must at least furnish an explanation of his default sufficiently full to enable the court to understand how really it came about, and to access his conduct and motives."* - 10 In my view, it is not necessary to distinguish the two phrases unless they have been used under the same provision. An attempt to distinguish them would simply be an exercise in splitting hairs, as the rules committee included them in various provisions without anticipating any need to define their specific application. Regardless, I concur with the South African court that the 15 defendant should at least furnish an explanation for his default that is clear enough for the court to understand how it occurred and to assess his conduct and motives. From his conduct and motives the court should not impute negligence, inaction or lack of bona fides. The final decision is undoubtedly within the discretion of the court. - 20 It is important to highlight that what constitutes "good cause" is not a fixed standard: it is always dependent on the unique facts and circumstances of each case, and the court's discretion plays a crucial role in determining its adequacy. Moreso, the court must be mindful to exercise such power without undue prejudice to the other party. - 25 The judiciary is currently burdened with case backlog, and courts have adopted a stricter stance regarding adherence to timelines established to facilitate the expeditious disposal of cases. Therefore, in an application to set aside an order of dismissal for failure to file pleadings within the prescribed time, the court must be persuaded that the reasons and explanations tendered constitute good 30 grounds. Such grounds must effectively rebut any presumption or allegation of

- 5 dilatory conduct, negligence, indolence, or inaction which initially caused the unfavorable outcome now sought to be remedied. The justification must demonstrate that the litigant's conduct was not willfully or recklessly delayed but rather excusable under the circumstances, thereby warranting relief from the consequences of the delay. - 10 It is a well-established principle under the *Evidence Act Cap 8* that the evidential burden rests squarely on the Applicant to establish sufficient cause for reinstatement of a suit. This necessitates a cogent factual and/or legal explanation for the delay or default, with each case adjudicated on its unique merits. The court cannot presume or impute good cause absent a substantiated - 15 basis in fact or law. It follows that the primary concern of the court in considering the application is to determine whether the "cause" put forward by the applicant, is "good cause".

In the instant case, the applicant (plaintiff) sought to satisfy the court that for "good cause" he did not file his application for leave to appear and defend the 20 suit within the prescribed time because his counsel failed and or neglected to upload the same on the ECCMIS System. The applicant demonstrated under paragraph 3 of the Affidavit that he indeed had appended his signature to the affidavit in support of the application to appear and defend dated 30 th October 2024.

25 The Respondent did not oppose this so the evidence remains uncontroverted.

As noted from the record, on 10th October 2024, the court issued summons to apply for leave to appear and defend the suit within 10 days from date of service. According to the affidavit of service deponed by Balyegisa Charles, service was undertaken on 21st October 2024 at the defendant's address located at Plot 86,


5 90 Fifth Street Kampala whereupon the summons were received and endorsed. The applicant endorsed his application on 30th October 2024 within time but as stated in his evidence, his counsel did not upload the same on ECCMIS.

I take cognizance that the responsibility of a litigant to act with due diligence in the conduct of his case extends only as far as his knowledge of the case and his 10 access to the judicial process. The Courts have held that once a party instructs counsel, then counsel assumes control over the case to conduct it throughout. The party cannot share the conduct of the case with his counsel. (*See; Yowasi Kabiguruka V Samuel Byarufu Civil Appeal No. 18 of 2008, the Court cited Hajati Safina Nabai Vs Yafesi Lule, Civil Appeal No. 9 of 1978; Busingye & Anor v*

15 *Gianluigi & Anor [2014] UGCommC 66).* Therefore, counsel duly instructed should exercise diligence in the conduct of the litigant's case.

The applicant having instructed his counsel could not have anticipated that counsel would not upload his application of ECCMIS, the very application counsel had drafted and had his client endorse. Accordingly, rather than 20 penalise the applicant for the negligent conduct of his counsel, I will allow the application and set aside the order of dismissal. I am satisfied with the reasons advanced by the applicant for failure to file his application in time.

This court has the discretion to determine by whom costs of a suit are to be borne, and to make all necessary orders in that regard (*section 27 Civil Procedure*

25 *Act*). Under *Order 9 rule 23 of the Civil Procedure Rules*, if the court makes an order setting aside the dismissal, the court may set terms as to costs. In legal proceedings, costs can be awarded against counsel personally when they act improperly, unreasonably, or negligently, and this conduct causes the opposing party to incur unnecessary costs. The court may then order the counsel to


compensate the other party for the costs incurred. (See: *Syed Suhail bin Syed Zin* $\mathsf{S}$ and others v Attorney-General [2021] SGHC 270). I am dissatisfaction with the conduct of counsel in handling the applicant's case and wasting court's time. I find that counsel's conduct is grossly negligent, inexplicable, blatant, unjustified, having acted in a manner that prejudices the justice of the case. Therefore, counsel shall be personally liable for the costs herein. $10$

I, consequently, make the following orders:

- 1. The default Judgement entered by this Honourable Court in High Court Civil Suit No. 1121 of 2024 is set aside. - 2. The Execution of the decree arising from High Court Civil Suit No. 1121 of 2024 be stayed. - 3. The taxation hearing in HCT-00-CC-TA-0300-2025 be stayed. - 4. The applicant is to file his application for leave to appear and defend the suit by 10th July 2025. The respondent should file his affidavit in reply by 20^th July 2025. The applicant should file any rejoinder by 25^th July 2025. - The applicant should file written submissions by $28^{th}$ July 2025 and the $20$ respondent by $31^{st}$ July 2025. Any rejoinders by the applicant be filed on $1^st$ August 2025. Ruling shall be on notice. - 5. The costs of the application are to be borne by counsel for the applicant personally.

Dated, signed and delivered electronically this 30^th day of June, 2025.


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