[2023] UGCommC 261

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### (COMMERCTAL DTVTSTON)

## MISCELLANEOUS APPLICATION NO 2O8O OF 2023

### AND

## MISCELLANEOUS APPLICATION NO 2075 OF 2023

## (ARISTNG FROM EMA NO 00s3 OF 2023)

## (ARTSTNG FROM MTSCELLANEOUS CAUSE NO 33 OF 2020)

# KAMPALA STOCKS SUPERMARKET LIMITED: : : : : : : : : : : : : : :APPLICANT

#### VERSUS

## ORION FOOD COMPANY LIMITED: : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

### BEFORE: HON. LADYJUSTICE ANNA B. MUGENYI

### RULING

This Application is brought by way of a Notice of Motion under section 98 of the Civil Procedure Act(CPA) and Order 9 rules l2 &25,Order 52 rules 1,2 & 3 of the Civil Procedure Rules (CPR) for orders that; the ruling and orders of the court in Miscellaneous Cause No 33 of 2022 be set aside, the execution proceedings vide EMA No. 0053 of 2023 be stayed pending the determination of this Application and the costs of this Application be provided for.

The Application was supported by the affidavit of Ye Bao Chun and the Respondent did not file any reply.

#### Background

The Respondent instituted Miscellaneous Cause No. 33 of 2022 against the Applicant. At the hearing of the matter, the Applicant's counsel informed the Court that they had changed Advocates and sought leave ofCourt to file their affrdavit in reply out of time which was granted. They were requested to file their affidavit in

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reply by 3l't March 2021 which directive was not followed. The Respondent then sought to proceed exparte since the Applicant had been effectively served and no affidavit in reply was filed and the court granted their prayers to proceed exparte. An exparte Judgment was consequently entered in favor of the Respondent, they made an Application for execution, and a notice to show cause was issued. The Applicant now seeks to set aside the decree and to stay the execution of the said decree.

### REPRESENTATION

The Applicant was represented by M/s MOM Advocates and the Respondent was unrepresented.

#### SUBMISSIONS

counsel holding brief on behalf of the Advocate for the Applicant submitted that the Respondent was served with both Miscellaneous Applications and an affidavit of service was uploaded on ECCMIS but the Respondent has not filed any affidavit in reply in respect of both the Applications. It is settled law that where the Respondent has not filed a reply, they are deemed to have admitted the averments in the Application. Counsel cited the case of Serefaco Consultants Limited v Euro Consults and Arcadis Euro Consult v Court of Appeal Civil Application No. 1612007 and stated that the principle, in that case, is that where the Applicant has filed the application supported by an affidavit and the Respondent does not reply by affidavit or otherwise, and supporting evidence is credible, then the motion stands unchallenged and prayed that court considers the available evidence.

counsel submitted that the Applicant relied on the mistake of counsel or negligence of his former counsel which prevented her from appearing on the day the matter came up for hearing and consequently the court proceeded exparte and an exparte Judgment was entered. It is settled that a mistake of counsel should not be visited on an innocent litigant. In this case, counsel had instructions to file the Applicant's affidavit together with submissions but did not take steps to comply with the directives ofthe court and did not bring this to the attention of the client. The client only leamed about this when she was served with the bill of costs which was at the point ofexecution. counsel thus prayed for the exparte judgment to be set aside and the matter to be heard on its merits

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# RULING

I have read the pleadings and submissions of the Applicant.

Both Miscellaneous Application No. 2080 of 2023 and Miscellaneous Application No. 2075 of 2023 were fixed for hearing on the same day. Miscellaneous Application No. 2080 is for an interim stay and Miscellaneous Application No. 2075 is for setting aside the exparte decree and stay of execution. Be that as it may, I will deal with the main Application which will deal with the Application for interim stay.

It should be noted that the Respondent did not file any affidavit reply to both the Applications.

In the case of Serefaco Consultants Limited v Euro Consults and Arcadis Euro Consult CACA No.16 of 2007 while referring to the case of H. G. Gandesha and Kampala Estates Ltd and G. J. Lutaya, SC Civil Application No. l4 of ¹⁹⁸⁹ Kavuma JA stated that:

'It is settled law that if the applicant supports his application by afidavit or other evidence and the respondent does not reply by affidavit or otherwise, and the supporting evidence is credible in itself, the facts stand as unchallenged".

All the averments in the affidavit in support of Ye Bao Chun in this application are uncontroverted affidavit evidence ofthe applicant Company. I find that the evidence and the affidavit credible and not intrinsically unreliable or contradictory. There are no discrepancies in it. I am, therefore, satisfied and find that the averments in the affidavit in support of the application remain on record unchallenged. I also accept them as correct and true.

The issue to be addressed therefore is whether the Application discloses any grounds for setting aside the exparte judgment passed and whether an order for a stay in execution should be issued.

## Whether the exparte decree should be set aside

The law goveming the setting aside ofan exparte decree is provided for under Order 9 Rule I 2 of the CPR thus:

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"Were judgment has been passed pursuant to any of the preceding rules of this Order, or where judgment has been entered by the registrar in cases under Order L ofthese Rules, the court may set aside or vary the judgment upon such terms as may be just " .

This order permits the setting aside of the decree upon demonstrating or proving that there is just cause.

In the present case, the Applicant has chosen to rely on the mistake and negligence ofcounsel as the ground for setting aside the decree.

It is an established principle of the law that negligence of counsel ought not to be visited on an innocent litigant and that a litigant ought not to bear the consequences of default by an advocate unless the litigant is prily to the default or the default results from the failure on the part of the litigant to give the advocate due instructions. (Zam Nalumansi v Sulaiman Lule, SCCA No. 2 of 1992; Mary Kyamulabi v Ahmed Zirondemu, CACA No. 4l of 1979 and Andrew Bamanya v Sham Sherali Zaver, CACA No.70 of200l).

The above principle is not absolute as there are circumstances under which the mistake and negligence of counsel may not stand as a ground for setting aside a Judgment and this was discussed in the case of Okech Verkam v Centenary Rural Development Bank HCCA No.93/2019 where the trial Judge stated that:

"But before the Applicant can be excused from the mistakes of his counsel, he must show that he was not in any way negligent and that he took proactive steps in correcting the errors of his counsel when hefirst became aware of the default".

In the present case, the Applicant had instructed lawyers to pursue their case. On the 26'h of March 2021 when Miscellaneous Cause No. 33 of 2020 was heard, the Applicant who were represented by M/S Sanywa, Wabwire & Co. Advocates informed the Court that they had just been given instructions by the Applicant and the former lawyers never filed an affidavit in reply and prayed to file the same out of time. During this hearing, the Applicant or their representative was not in Court, and the new lawyers equally failed to comply with the Court's directives. The Court similarly issued a ruling notice on the 16th of March 2022 which was duly received

by the Applicant's lawyers but both the Applicant and their lawyers were absent during the ruling.

An Applicant who instructs lawyers to pursue their case equally has ^a duty/responsibility to follow up on the progress oftheir case with the said Advocates. In this case, the Applicant contends that he was not aware of the exparte proceedings and orders of the Court until the 306 of August of 2023 when they were served with a notice to show cause. This shows that he was negligent and did not take any proactive steps to ensure the effective prosecution of his case.

The ruling in the Miscellaneous Cause sought to be set aside was delivered on the 5th of September 2022 and the Applicant only applied for the sefting aside of the same on the 30th of August 2023 which is 11 months later. To me, this depicts negligence and indolence on the part of the Applicant. He had a duty to follow up with the progress of his case with the lawyers and in case they were not giving him accurate information, he would have followed up on the same with the Court. The first lawyer's failure to file the affidavit in reply in time should have put the Applicant on notice and motivated him to closely follow up his case with the new lawyers instructed. I, therefore, believe that this is not a case where the mistake of counsel should not be visited on the Applicant as he equally played a role in being negligent.

I find no justifiable reason for so much delay and the circumstances in this case do not depictjust cause for setting aside the exparte judgment.

I accordingly do hereby dismiss this application.

frlvht

HON. LADY JUSTICE ANNA B. MUGENYI DArED....... ........2 2.1.! t..1.n.2s............