[2024] UGHC 1096

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA**

#### **MISC. APPLICATION NO. 115 OF 2024**

### **(Arising from Civil Suit No. 10 of 2024)**

**1. DILA BENSON WALTER=================================APPLICANT**

**-VERSUS-**

**1. M/S EGARU & CO. ADVOCATES 2. ENG. ODONGO OKUNE 3. OJWANG OPOTA 4. WILLIE OMODO OMODO=============================RESPONDENTS**

# **BEFORE: HON. JUSTICE PHILLIP ODOKI**

# **RULING**

### **Introduction:**

[1] The Applicant brought this application, by Notice of Motion, under Section 37 the Judicature Act Cap. 16; Section 98 of the Civil Procedure Act, Cap 282; and Order 46 rules 1 2,3(2),6 & 8 of the Civil Procedure Rules S.1. 71-1. The Applicant seeks for an order of this court to review and set aside the orders of this Court dated 8th October 2024 in High Court Civil Suit No. 10 of 2024 wherein he was ordered to pay costs to the 2nd – 3rd Respondents. He also seeks for an order providing for the costs of this application.

## **Background:**

[2] On the 27th February 2024 the 1st Respondent filed High Court Civil Suit No. 10 of 2024 on behalf of the Plaintiffs as their counsel. In the plaint, the Applicant was indicated as the 3rd Plaintiff while the 2nd – 4th Respondents were indicated as the 1st – 3rd Defendants. When the suit came up for hearing on the 8th October 2024, Mr. Emmanuel Egaru Omiat and Mr. Hamis Obua all from the 1st Respondent law firm informed the Court that the Applicant lost interest in the case. They sought for the leave of this court to withdraw the suit by the Applicant without any orders as to costs because, in their view, the suit was in public interest. Counsel for the 2nd – 4th Respondents on the other hand prayed that the suit by the Applicant should be withdrawn with costs. The decision of the Court was that the plaint did not in any way show that the Applicant had instituted the suit in public interest. The Court granted the leave to withdraw the suit of the Applicant, however ordered that the Applicant should bear the costs of the withdrawal to the 2nd – 4th Respondents.

# **Applicant's case:**

[3] The gist of the Applicants' case in this application, as set out in the Notice of Motion, supported by his affidavits, is that he neither instructed the 1st Respondent to file High Court Civil Suit No. 10 of 2024 on his behalf against the 2nd – 4th Respondents nor did he have any interest in the suit. He did not pay or contribute to any instruction fees to the 1st Respondent. He deponed that although High Court Civil Suit No. 10 which was challenging the election of the Paramount Chief of Lango was a matter of great importance to the entire Lango community and was in the public domain through the media, he was not aware that he had been made a party to the suit. He was shocked to discover from social media that on the 8th of October 2024 this Court had ordered him to pay costs to the 2nd – 4th Respondents upon his suit being withdrawn against them. The Applicant contends he is aggrieved by the Court order because he did not give any instructions to the 1st Respondent to institute the suit against the 2nd - 4th Respondents. According to the Applicant, there is a mistake or error apparent on the face of the record to order him to pay cost to the 2nd – 4th Respondents. The Applicant also contends that there is a discovery of a new and important matter of evidence, which is, that he did not give instructions to the 1st Respondent to institute the suit. According to the Applicant, that matter of evidence could not be produced by him in court because at the time of the hearing of High Court Civil Suit No. 10 of 2024 he was not aware of the existence of the suit and did not appear in Court on that day. In his view, if the order is not reviewed and set aside, it shall cause him loss and injustice because he is an innocent person.

## **The 1st Respondent's case:**

[4] 1st Respondent's case on the other hand, as can be discerned from the affidavit in reply which was sworn by Mr. Emmanuel Egaru Omiat, is that the Applicant, together with the other Plaintiffs in High Court Civil Suit No. 10 of 2024 gave formal instructions to the 1st Respondent, paid part of their legal fees and was aware of the suit from the onset. According to Mr. Emmanuel Egaru Omiat, the Applicant served as the Speaker in the Institution of the Paramount Chief of Lango. When leadership wrangles erupted within the institution, on the 20th February 2024 the Prime Minister of Lango Cultural Foundation (James Robert Ajal) wrote to the 1st Respondent, informing the 1st Respondent of an executive meeting of Lango Cultural Foundation which took place on the 19th February 2024. In the meeting, it was resolved that the 1st Respondent be appointed to represent Lango Cultural Foundation for the purpose of instituting a suit to challenge the preparation for an election which was being organized by an Electoral Commission which commission, according to James Robert Ajal, had been disbanded by the Paramount Chief of Lango. In the same letter, it was indicated that James Robert Ajal and the Applicant would be Plaintiffs in the suit. Mr. Emmanuel Egaru Omiat further deponed that on the 26th February 2024, the Applicant, together with the other Plaintiffs in High Court Civil Suit No. 10 of 2024, made part payment of legal fees to the 1st Respondent. In addition, Mr. Emmanuel Egaru Omiat deponed that the Applicant was aware of High Court Civil Suit No. 10 of 2024 because it was a public interest litigation which was discussed on all local radios.

## **The 2nd – 4th Respondents' case:**

[5] The case of the 2nd - 4th Respondents was set out in the affidavit in reply which was sworn by the 4th Respondent. He deponed that at all times that High Court Civil Suit No. 10 of 2024 came up for hearing, the Applicant was aware, given that it is a matter of public interest in Lango, having been published in the media. In addition, the 4th Respondent deponed that the Applicant sat on his right to appear in Court to inform the Court that he did not give instructions to the 1st Respondent or that he has no interest in the matter. According to the 4th Respondent, the Applicant filed this application to frustrate the 2nd – 4th Respondents from obtaining the fruits of justice. In his view, the Applicant should pay the 2nd -4th Respondents their costs and sort himself out with the 1st Respondent.

### **Legal representation:**

[6] At the hearing, the Applicant was represented by Mr. Brian Watmon. The 1st Respondent was represented by Mr. Hamis Obua. The 2nd – 4th Respondents were represented by Dr. Adams Makmot Kibwanga, Mr. Patrick Okwir, Mr. Quirinus Oyugi Onono, Mr. Gabriel Obua, Mr. Simon Peter Odoo, Mr. Ponsiano Okello, M/s Rita Mari, Dr. Rebecca Amolo and Joseph Masiko.

### **Legal submissions:**

[7] Counsel for the Applicant submitted that the Applicant is an aggrieved party because the decision of this court to condemn him in cost to the 2nd – 4th Respondents was made in his absence, without his notice or consent. According to counsel, the order has a great financial implication to the Applicant because he was required to personally pay the costs of the 2nd – 4th respondents in High Court Civil Suit No. 10 of 2024 and yet he did not give any instructions to the 1st Respondent to institute the suit on his behalf. Counsel argued that from the evidence adduced by the 1st Respondents, it is clear that it is Lango Cultural Foundation which gave instructions to the 1st Respondent and not the Applicant. In addition, counsel argued that the receipt for part payment which was relied on by the 1st Respondent was also made by Lango Cultural Foundation and not the Applicant. Counsel submitted that Lango Cultural Foundation is not a body corporate and is not an agent of the Applicant which could have given instruction to the 1st Respondent on his behalf. In counsel's view, it was incumbent on the 1st Respondent to contact the Applicant, interview him and confirm his consent to be added as a party in the suit, which was not done. Counsel invited the court to review and set aside the impugned order because when it was issued the Applicant was not in Court and the Court did not verify from him as to whether he had instructed the 1st Respondent to represent him.

[8] Counsel for the 1st Respondent submitted that the averments of the Applicant are an afterthought, abuse of court process and brought in bad faith. Counsel merely reproduced the contents of the Affidavit of Mr. Emmanuel Egaru Omiat as their submissions.

[9] Counsel for the 2nd – 4th Respondents submitted that the 2nd – 4th Respondents were wrongly joined in this application because this Court ordered that the Applicant should pay the 2nd – 4th Respondents the costs of withdrawing his suit in High Court Civil Suit No. 10 of 2024. According to counsel for the 2nd – 4th Respondent, the dispute between the Applicant and the 1st Respondent does not concern the 2nd -4th Respondents.

#### **Analysis and determination of the court:**

[10] Section 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules gives an option to any person aggrieved by a decree or order, from which an appeal is allowed under the Act, but from which no appeal has been preferred or from which no appeal is allowed, to apply for review of the judgment of the Court which passed the decree or order.

[11] In *Re Nakivubo Chemist (U) Ltd [1979] HCB 12* Manyindo J., held that the expression "any person aggrieved" within the meaning of section 83(which is now section 82) of the Civil Procedure Act and Order 42 rule 1(which is now Order 46 Rule 1) of the Civil Procedure Rules means any person who has suffered a legal grievance. In *Ex parte side Botham (1880)14 Ch. D 459* James L. J., held that a "person aggrieved" must be a man who has suffered legal grievance, that is, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly affected his title. In *Attorney General of Zambia versus N'jie (1961) AC PC 617* Lord Denning held that a "person aggrieved" includes a person who has a genuine grievance because an order has been made which prejudicially affects his interest.

[12] In the instant case, the Applicant deponed that he is aggrieved by the order of this Court dated 8th October 2024 in High Court Civil Suit No. 10 of 2024 wherein he was ordered to pay costs to the 2nd – 3rd Respondents. His contention being that he did not give any instructions to the 1st Respondent to file the suit which was withdrawn with costs to the 2nd - 4th Respondents. The 1st Respondent, on the other hand, contends that the Applicant, together with the other Plaintiffs in High Court Civil Suit No. 10 of 2024 gave formal instructions to the 1st Respondent, paid part of the legal fees and was aware of the suit from the onset. [13] Regulation 2(1) of *The Advocates (Professional Conduct) Regulations S.1 267-2* provides that no advocate shall act for any person unless he or she has received instructions from that person or his or her duly authorised agent. That regulation mandates an advocate to satisfy himself or herself that he or she has instruction before acting on behalf of a client.

[14] The 1st Respondent relied on the letter which was written by the Prime Minister of Lango Cultural Foundation (James Ajal) dated 20th February 2024 and the receipt of part payment of instruction fees by Lango Cultural Foundation dated 26th February 2024 as evidence of instructions by the Applicant. Both documents were attached to the affidavit of Mr. Emmanuel Egaru Omiat as annexure "A" and "B" respectively.

[15] I have examined the said letter. It does not in any way prove that the Applicant gave the 1st Respondent any instructions or consent to have his name included as a Plaintiff in High Court Civil Suit No. 10 of 2024. The letter does not even indicate as to whether the Applicant attended the meeting of 19th February 2024 where the decision to give instructions to the 1st Respondent was taken. The 1st Respondent did not adduce the minutes of the meeting which would have assisted the Court to establish whether the Applicant gave instructions to be included as a plaintiff in the suit or acquiesce to the same. I have also examined the receipt. It clearly shows that the part payment of Ug. Shs. 2,000,000/= was made by Lango Cultural Foundation and not the Applicant.

[16] The 1st Respondent did not adduce any evidence to show that at any one moment before and after the suit was filed, they interacted with the Applicant regarding the suit. In his affidavit in reply, Mr. Egaru deponed that the Applicant never appeared in. It clearly confirms what the Applicants deponed that he never gave any instructions to the 1st Respondent.

[17] In addition, Mr. Emmanuel Egaru Omiat deponed that the Applicant was aware of High Court Civil Suit No. 10 of 2024 because it was a public interest litigation which was discussed on all local radios. In my view, the fact that the case was discussed in local radios does not in any way prove that the Applicant actually gave any instructions to the 1st Respondent.

[18] I therefore find that the Applicant proved, on the balance of probabilities, that he never gave any instructions to the 1st Respondent to include him as a plaintiff in High Court Civil Suit No. 10 of 2024. The Applicant has a genuine legal grievance because this Court ordered him to pay the 2nd – 4th Respondent the cost of withdrawing a suit which he neither filed nor did he consent to the filing. The Applicant therefore qualifies as a person who is aggrieved by the order of this Court and can apply for a review of the order.

[19] On the circumstances when an aggrieved person may apply for review, Order 46 Rule 1 of the Civil Procedure Rules provides for three instances. That is, if there is a discovery of new and important matter or evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made; or if there is same mistake or error apparent on the face of the record; or for any other sufficient reason.

[20] In the instant application, the Applicant relied on both discovery of a new matter of evidence and error apparent on the face of the record. In *Edison Kanyabwera versus Pastri Tumwebaze SCCA No. 6 of 2004* Oder JSC relying on **A. I. R. Commentaries: The Code of Civil Procedure by Manohar and Chitaley, volume 5 , 1908,** stated that**;**

> *"In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not*

*require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The "error" may be one of fact, but it is not limited to matters of fact, and includes also error of law."*

[21] In the instant case, the error which the Applicant stated to be apparent on the face of the record is that he never gave any instructions to the 1st Respondent to file High Court Civil Suit No. 10 of 2024. Counsel for the Applicant argued that the Court did not verify from Applicant as to whether he had instructed the 1st Respondent to represent him. In my view, "an error" which is referred to in Section 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules must be an error on the part of Court and not counsel or the parties. The fact that the Applicant did not give instructions to the 1st Respondent is not an error on the part of the Court. Secondly, it is not in doubt that High Court Civil Suit No. 10 of 2024 was filed in this Court by the 1st Respondent. Therefore, at the time the impugned order was made, the Court had no reason to doubt that Mr. Emmanuel Egaru Omiat, Mr. Hamis Obua and Mr. Innocent Okuny, who appeared for the plaintiffs, had instructions. My finding therefore is that there is no error apparent on the face of the record warranting review of the orders of this of 8th October 2024.

[22] On whether there is there is a discovery of new and important matter or evidence which after the exercise of due diligence was not within the Applicant's knowledge or could not be produced by him at the time when the order made, the Applicant deponed that the new and important matter of evidence is that he did not give instructions to the 1st Respondent to institute the suit. He further deponed that he could not produce that evidence in court because at the time of the hearing of High Court Civil Suit No. 10 of 2024 he was not aware of the existence of suit and did not appear in Court on that day.

[23] I have already found that the Applicant proved that he did not give instructions to the 1st Respondent to include him as a Plaintiff in High Court Civil Suit No. 10 of 2024. Although both Mr. Emmanuel Egaru and Mr. Willie Omodo Omodo deponed that the information regarding High Court Civil Suit No. 10 of 2024 was all over the media, they did not adduce any evidence to prove that the Applicant was actually aware that he was one of the Plaintiffs in High Court Civil Suit No. 10 of 2024. The Court record shows that before the impugned order was made, High Court Civil Suit No. 10 of 2024 came up on the 9th July 2024 and 22nd August 2024. In all those dates the Applicant did not appear in Court. There was also Misc. Application No. 21 of 2024 arising from High Court Civil Suit No. 10 of 2024 (seeking for an interim order of injunction) which came up on the 29th February 2024 and Misc. Application No.20 of 2024 arising from High Court Civil Suit No. 10 of 2024 (seeking for a temporary injunction) which came up for hearing on the 25th March 2024, 25th May 2024. In all those dates the Applicant did not appear in Court. In my view, if indeed the Applicant was aware that he was made a party in the case, he would have at least appeared in Court on any of those dates. The fact that he did not appear in Court supports the Applicant's evidence that he was not aware that he was made a plaintiff in the suit. It is more probable that the Applicant was not aware that he was included as a plaintiff in the suit. He only discovered that fact after the impugned order had already been issued. He was therefore not able to bring to the attention of the Court, at the time the impuned order was made, that he did not give instructions to the 1st Respondent to include him as a plaintiff in the suit. My finding therefore is that the Applicant has proved that there is a discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the impugned order was made. The orders of this Court dated 8th October 2024 in High Court Civil Suit No. 10 of 2024 wherein Applicant was ordered to pay costs to the 2nd – 3rd Respondents is accordingly reviewed and set aside.

[24] Having set aside the order that the Applicant should pay the 2nd – 3rd Respondents the costs of withdrawing the suit which was purported filed the Applicant, the issue that has to be determined by this Court is who then is supposed to meet the costs which was occasioned by the acts of the 1st Respondent in filing the suit without instructions. The general rule is that an advocate who purport to act for a party without having authority eg where the named client does not exist or may have died or lacks capacity or may have ceased to exist (in the case of a company which has been dissolved) or the individual giving instructions may not have had authority, should be made to pay the opposite party and the party who the advocate purported to represent the costs incurred. Even where the advocate honestly believes that he or she had authority, sometimes until the court determines otherwise or where the advocate acts bona fide, he or she would be regarded to have done so at his or her own risk, and must pay the costs of the suit. See: the decision of Jessel MR in *Newbiggin-by-the-sea Gas Company v Armstrong [1879] 13 Ch D 310* and *In re Savage (1880) 15 Ch D 557.*

[25] In *Myers v Elman [1940] AC 282* the House of Lords held that the jurisdictional basis for making such orders is premised on the exercise of the court's inherent jurisdiction to discipline its officers for breach of duty owed by the the advocate to the court and not premised on breach of warranty to the opposite party that he has authority to act for the would be client.

[26] In the instant case the High Court Civil Suit No. 10 of 2024 was instituted by the 1st Respondent, a firm of Advocates, without instruction from the Applicant. As a result of the suit, the 2nd – 4th Respondents had to defend themselves against the suit. The 1st Respondent is accordingly ordered pay the 2nd – 4th Respondents the costs pursuant to the withdrawal of the suit which was purportedly filed on behalf of the Applicant. The 1st Respondent is also ordered to pay the Applicant and the 2nd – 4th Respondents the costs of this application.

I so order

Dated and delivered by email this 9th day of December 2024

Phillip Odoki

**Judge.**