[2025] UGCommC 101

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 0545 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 1104 OF 2022)** 10 **FRESH CUTS (U) LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

**PADMA NIKHIL ROHAN AFRICA (PNR) LTD:::::::::::::::::::::::::::::::::RESPONDENT**

**Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

# **RULING**

The applicants brought this application under Article 44 (c) of the 1995 of the Constitution of the Republic of Uganda, Section 98 of the Civil Procedure Act Cap 71, Order 36 rule 11 and Order 52 rule 1 & 2 of the Civil Procedure Rules Sl 71-1). The applicants seek orders that:

- 20 1. The judgment dated 31st October 2024 issued by this Honourable Court in *Civil Suit No. 1104 of 2022* be set aside; - 2. Execution proceedings arising out of the Judgment dated 31st October 2024 issued by this Honourable Court in *Civil Suit No.1104 of 2022* be set aside.; - 3. The Applicant be granted unconditional leave to appear and defend *Civil Suit No.1104 of*

25 *2022*;

4. That costs of this application be provided for.

The brief background to this application is that the respondent herein filed *Civil Suit No. 1104 of 2022 Padma Nikhil Rohan Africa (PNR) Ltd vs Fresh Cuts (U) Ltd* by specially endorsed plaint 30 under Order 36 rule 2 of the Civil Procedure Rules SI 71-1 for recovery of a liquidated sum of Ugx 71,252,700 being the sum total of goods sold to the defendant and costs of the suit. The respondent had contracted the applicant to supply agricultural products; for which the applicant issued 15 post-dated cheques amounting to the said sum. All the cheques were dishonoured due

5 to insufficiency of funds on the applicant's bank account. When sued, the applicant filed *Miscellaneous Application No. 0112/2023* for leave to appear and defend the summary suit, which was dismissed following the non-appearance of the applicant and their counsel on the date fixed for hearing. The respondent's claim was set for formal proof and judgment was eventually entered in favour of the respondent for the sum claimed, and costs of the suit; hence this

10 application to set aside.

## **Representation at the hearing**

The applicant was represented by Ms. Fahim Matovu of Lipton Advocates; while the respondent was represented by Mr. Sebbowa Francis of M/s Ssebowa & Co. Advocates. The parties were 15 granted leave to file written submissions which are on Court record.

#### **Issue for determination**

The main issue for determination is whether the applicant has sufficient grounds for setting aside the judgment and, therefore, the execution proceedings arising out to the said judgment in *Civil* 20 *Suit No. 1104 of 2022*. If yes, whether there are any remedies available to the parties?

## P**reliminary objections raised by counsel**

Both counsel raised preliminary objection in their written submissions. Counsel for the applicant raised objections in regard to: whether the respondent's affidavit in reply is incurably defective 25 for non-payment of the requisite court filing fees; and whether the respondent's affidavit in reply is incurably defective for failure to specifically respond to the affidavit in support of the application. Counsel for the respondent, on the other raised preliminary objections on grounds that the judgment sought to be set aside is not a judgment under order 36 of the Civil Procedure Rules; and that the application for leave to appear and defend the suit was dismissed under Order 30 9 rule 22, which bars filing of a fresh suit.

I am, however, inclined to invoke article 126 (2) (e) of the 1995 Constitution of the Republic of Uganda and section 98 of the Civil Procedure Act cap 282, to entertain the substantive issue raised in this application in the interest of justice. Article 126 (2) (e) enjoins this court to 5 administer substantive justice without undue regard to technicalities; while section 98 of the Civil Procedure Act empowers this court to make orders necessary for the ends of justice.

#### **Submissions**

At the hearing of this application, counsel for all parties were given schedules to file their 10 respective written submissions and they all complied. This court shall consider the submissions alongside the respective pleadings and authorities cited in the determination of this application.

#### **Submissions of Counsel for the Applicant**

- 15 The applicant's counsel submitted that the respondents filed *Civil Suit No. 1104 of 2022* and the applicants subsequently instructed Messrs. Avrax Advocates to represent them. Messrs Avrax Advocates filed *Miscellaneous Application No. 0112 of 2023* seeking leave to appear and defend *Civil Suit No. 1104 of 2022* but did not follow up on the same. Counsel for the applicant further submitted that around the month of March 2025 the applicant was served with a garnishee *nisi* dated 13 20 th March 2025 in respect of its account in Absa Bank. That this followed the dismissal of - the applicant's application, *Miscellaneous Application No. 0112 of 2023* for failure of their counsel to appear and defend the same. Court proceeded *exparte* and delivered judgment in favour of the respondent. - 25 Counsel for the applicant stated that upon being served with the garnishee nisi, the applicant then instructed Lipton Advocates to take over the conduct of *Civil Suit No. 1104 of 2022* having been abandoned by their former advocates. That the applicant has good cause to justify their failure to appear in court for the hearing of *Miscellaneous Application No. 0112/2023*. That the good cause is premised on mistake of their former counsel by not following up on *Miscellaneous Application* - 30 *No. 0112 of 2023*; which mistake should not be visited on the applicant.

Counsel for the applicant cited various authorities to support their application, including: *Tiberio Okeny & Anor vs Attorney General & Others CA 51 of 2021, Mbogo & Anor vs Shah (1968)*

5 *EA93*, *Patel vs EA Cargo Handling Services Ltd (1974) EA 75*; which were considered by this court in the determination of this matter.

#### **Submissions of Counsel for the Respondent**

Counsel for the respondent opposed the application by submitting that the applicant was served 10 with summons in *Civil Suit no. 1104/2022*. That upon receipt of the summons, the applicants instructed Messrs. Avrax Advocates to file an application for leave to appear and defend the said civil suit. That the *Miscellaneous Application No. 0112/2023* was fixed after a year of having filed the said application. And this fixing of the application was as a result of the several letters that counsel for the respondent wrote to fix the said application.

For the applicant to rely on mistake of counsel as a good cause, the applicant ought to avail evidence showing that it was a diligent litigant that was let down by its counsel. Counsel for the respondent submitted that the applicant had failed to produce material evident and listed some of the evidence that the applicant ought to have availed to include: evidence of payment to its 20 former advocates; correspondents between the applicant and its former lawyers, to mention but afew.

Counsel for the respondent relied on various authorities in support of its submissions including: *Amos Ocan vs Oyee Wilson HCCA No. 51/2016, Mubiru vs P&A Credit Investment Limited High* 25 *Court Miscellaneous Application No. 746/2025*. These were taken into consideration by this court in the determination of this application.

#### **Determination of the application**

As already stated, the main issue for determination is whether the applicant has sufficient 30 grounds for setting aside the judgment and, therefore, the execution proceedings arising out to the said judgment in *Civil Suit No. 1104 of 2022?*

It is the argument of the Applicant's Counsel that the applicant's former Advocates of Messrs. Avrax Advocates filed *Miscellaneous Application No. 0112 of 2023* seeking leave to appear and

5 defend Civil Suit No.1104 of 2024 but misinformed their client/the applicant on the status of the same; hence the need to set aside the judgment that was delivered.

The law regarding setting aside of a decree is provided for under Order 9 rule 27 of the Civil Procedure Rules, permits a defendant against whom an *ex parte* decree was passed to apply to court to have the decree set aside, if they so wished. Under this same rule, however, the applicant

- 10 is required to satisfy court that they were prevented by sufficient cause from appearing when the suit was called for hearing. This court is, therefore, empowered by the foregoing provisions, if convinced that the applicant was prevented by sufficient cause from appearing, to set aside the exparte judgment. - 15 In *Ntambara vs Segawole High Court Miscellaneous Application 1082 of 2019*, it was noted that Order 9 rule 27 requires that: - 1. an ex parte decree should have been passed against the defendant. - 2. summons must have not been duly served, or the non-appearance when the suit was called for hearing was due to sufficient cause.

## 20

Further, in the case of *Departed Asians Property Custodian Board vs Issa Bukenya Supreme Court Civil Appeal No. 18 of 1991*, the Supreme Court held that:

*"an application to set aside an ex parte judgment cannot succeed if no good or substantial reasons are given to justify setting it aside."*

- 25 (Also see *Caltex Oil Limited vs Kyobe (1988-90) HCB 141* where Byamugisha J, as she then was, held that court is empowered to set aside exparte decree under then then order 33, and that the applicant had to satisfy court that there was no effective service of summons or any sufficient cause as relates to the failure by the applicant to take necessary steps at the right time). - 30 An applicant must satisfy court that a good or sufficient reason exists to warrant the setting aside of a judgment. In *Florence Nabatanzi vs Naome Binsobedde Supreme Court Civil Application No. 6 of 1987*, it was held that sufficient reason or cause depends on the circumstances of each

5 case and must relate to inability or failure to take a particular step in time. Further, in *Nicholas Roussos vs Gulamu Hussein Habib Virani & Others SCCA No. 9 of 1993,* it was held that:

> *"…a mistake by an advocate although negligent may be accepted as a sufficient cause to set aside an exparte judgment."*

In this instance, it is the duty of the applicant to show that sufficient cause to set aside the ex 10 parte judgment vide *Civil Suit No. 1104 of 2022* exists. The ground of sufficient cause can only stand in the setting aside of an *exparte* judgment if there is no negligence or inaction imputed on the part of the applicant/defendant of the suit. In the case of *Banco Arabe Espanol versus Bank of Uganda SCCA No. 8 of 1998*, it was held that where a party's failure to take a step in litigation was caused by his or her indolence or inadvertence, the court will not be equally as forgiving.

The main ground relied on by the applicant herein to have the judgment in *Civil Suit No. 1104 of 2022* set aside is failure by the applicant's former counsel to appear for the hearing of *Miscellaneous Application No. 112/2023,* an application for unconditional leave to appear and defend, due to misinformation by their former Advocates on the progress of their case; hence 20 their missing the said hearing. Counsel for the applicant submitted in paragraph 6.1.3. of the applicant's written submissions that it was the mistake of the applicant's former lawyers. That the applicants were always misinformed by their former lawyers about the true status of the applicaton for leave to appear and defend the civil suit. Reliance was placed on the averments made in paragraphs 12, 13, 14 and 15 of the affidavit in support of the application.

Apart from this assertion, it is not demonstrated how the applicant were actually diligent. Yes, the lawyers may have not turned up in court on the day of the hearing of the application for leave to appear and defend but what exactly did the applicants do to take the "diligent and necessary steps" to ensure the prosecution of *Miscellaneous Application No. 0112/2023*, to enable them

30 defend themselves in *Civil Suit No. 1104/2022*? There is a need for the applicant to demonstrate what transpired from the time the applicants engaged their former lawyer, up to the time they were served with notices for garnishee proceedings, to enable court to clearly deduce that they were diligent and took the steps required of them. The applicant is quite vague when they state that they were diligent and followed up with counsel, who they alleged misinformed them. The

5 applicant should have clearly unpacked the nature and details of the misinformation by the applicant's former counsel, and proof thereof.

The evidence relied on by the applicant, in form of the affidavit in support of the application is not satisfactory to move this court to set aside the judgment entered by this court vide *Civil Suit*

10 *No. 1104/2022;* a judgment which was rendered upon the conduct of formal proof.

The applicant relied on Article 44(c) of the Constitution of the Republic of Uganda to assert that the applicant's right to be heard is an absolute right which court has the power to uphold to avoid a miscarriage of justice on the part of the Applicant. Article 44 (c) cannot be read in isolation of

- 15 article 28 of the Constitution. While article 28 recognises the right to a fair hearing, article 44 (c) renders it a non-derogable right; meaning that it cannot be violated under any circumstances. The basic tenets of this right to a fair hearing include: - 1. Courts remaining neutral and free from undue influence and interference with court processes; - 20 2. Availing the parties an opportunity to be present their case; - 3. Either party having an opportunity to examine the evidence and witnesses against them - 4. Parties enjoying the right to be represented by counsel. - In principle the applicant's right to be heard was respected when they were availed an 25 opportunity to file and prosecute an application for leave to appear and defend. Failure on counsel for the applicant's to appear in court on the scheduled date to prosecute the applicant's application cannot be imputed as court's failure to protect this right to be heard. The short comings in the trial process emanated on the side of the applicant. In fact, counsel for the respondent submitted that it is their efforts, through the writing of various letters to court seeking 30 a hearing date for *Miscellaneous Application No. 0112/2023*, that led to the scheduling of the same for hearing. This assertion was not rebutted by the applicant and points to the lackluster effort by the applicant to have the said application heard.

Further, the applicant's dispute of the claim for supply of agricultural supplies worth Ugx 35 71,252,700 in the *Civil Suit 1104/2022* in their written submissions; and the claim that they are

- 5 not indebted to the respondent go to the merits of the civil suit and are not for determination in this application. This application focuses on establishing whether the applicant has good or sufficient cause to warrant this court to invoke its power to set aside the exparte judgment in *Civil Suit 1104/2022.* - 10 Basing on the foregoing, I find that the applicant has failed to demonstrate sufficient cause to warrant this court to set aside the judgment that was entered vide *Civil Suit No. 1104/2022*. Accordingly, the consequential prayers sought by the applicant in regard to: stay of execution proceedings arising out of the said Judgment; and the grant of unconditional leave to the applicant appear and defend *Civil Suit No.1104 of 2022*, equally fail. - 15 This application is dismissed with costs to the Respondent.

I so order.

*Dr. Ginamia Melody Ngwatu* 20 *Ag. Judge*

> *19 th May 2025*

*Ruling delivered via ECCMIS*