[2003] UGCommC 136

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (COMMERCIAL COURT) MISCELLANEOUS APPLICATION No. 68 OF 2003 (Arising from Miscellaneous Application No. 797 of 2002)

KAWEESI AGRO PROJECTS LIMITED APPLICANT RESPONDENT VERSUS GREENLAND BANK LIMITED (IN LIQUIDATION)

#### BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

#### **RULING**

This was an application by the Plaintiff (KAWEESI) to set aside an earlier order of this Court that required the Registrar of Titles to remove a caveat previously lodged by KAWEESI on the suit property. That Court order was issued ex *parte* on 6/02/03, upon the failure of both KAWEESI and his counsel to appear before the Court on that date.

The grounds for the present application are, in the main, that KAWEESI failed to attend Court on 6/02/03 because at the previous Court hearing of that matter he had misheard the adjournment as being fixed for 6th **March,** instead of 6th **February.** A second, but in my view subsidiary, ground for this application was that the Auctioneers somehow failed to comply with their instructions to advertise the suit property for sale in a daily (instead of a weekly) newspaper; and to sell the property for cash (rather than on credit terms). In the same vein, KAWEESI takes issue with the fact that the sale was by private treaty (instead of public auction, as advertised in the newspaper). In summary, the Applicant avers that the above grounds entitle him to a set aside of the Court's earlier order and, consequently, to reinstatement of his caveat on the suit property.

For their part, the Defendants (GREENLAND BANK) countered the above submissions with three points. **First,** that the instant application was incompetent, for having been brought under the wrong law - namely rule ⁹ (instead of rule 24) of Order 9 of the Civil Procedure Rules (CPR). **Secondly,** that KAWEESI has shown no "sufficient cause" for his failure to attend Court, nor has he shown a meritorious case in the underlying application (Misc. Application No. 797/2002) which gave rise to the earlier Court order. **Thirdly,** that renewal of KAWEESI's caveat, as now prayed in the instant application, would be contrary to section 149 (2) of the Registration of Titles Act.

Having carefully assessed the arguments of both counsel, Court is able to conclude as follows:

#### **Competence of this application**

0.9, **r.9** of the CPR comes into play to set aside or vary only those judgments passed either pursuant to the "preceding" rules (namely rules 4,5,6, and 7 of 0.9); or judgments passed by the Registrar under 0.46 - see **Nicholas Roussos v. Virani S. Ct. Civil Appeal No. 9 of 1993, at p.110.** From even a cursory perusal thereof, the circumstances in which 0.9, r.9 is to be applied, are enumerated in the "preceding" rules - namely, rules 4,5,6 and 7. All these rules are confined to **failure to file a defence.** [It will be noted that rules 8 and 8A of 0.9 are excluded from the list of "preceding" rules. The reason for this exclusion is that no judgment is passed under rule ⁸ or rule 8A - see **Roussos** case (supra)].

0.9, 24 on the other hand is applicable to cases in which a decree is passed *ex parte.* This distinction in the circumstances in which rule 9 (as against rule 24) may be applied, is made eminently clear by the case of **Wameru v. Ndiga (1982-88) ^I KAR 210.** In summary, that distinction is that r.9 applies to applications in which the order/judgment sought to be set aside or varied was passed by reason of Defendant's failure to file a defence; while r.24 comes into play where the order/judgment challenged arose out of Defendant's **physical failure to appear** in Court.

Prior to the 1998 amendment of the CPR, the above distinction was somewhat blurred in the case of Uganda, in as much as the old unamended rr.1 - ¹³ of 0.9 used to refer to the Defendant'^s need to **"enter an appearance".** This entering of appearance, though strictly confined to the filing of a document by which the Defendant formally indicated his/her intention to contest the suit/application, could easily be and was often confused with the Defendant's physical appearance in Court on the date of the hearing of the matter in question. To eliminate this potential confusion in the Kenyan comparable law, the Kenyan Legislature expressly amended their law.

In Uganda, though the amendment was not effected as expressly as in Kenya, nonetheless the potential confusion has since been eliminated. The amended rules no longer require a Defendant to *enter an appearance.* Instead, the rules now require the Defendant to **file a defence.** Accordingly, it is now patently clear that rules 1-13 of 0.9 confine themselves to the filing of a document called a defence, and to nothing else [such as Defendant's own physical appearance in Court).

Accordingly, in this regard both the Ugandan and the Kenyan rules are now similar in their practical effect.

In light of all the above, Court finds that the present application was filed under the wrong law and is, therefore legally incompetent. **^I** say **"legally"** because ^I would have been prepared to ignore the apparent technicality involved here - namely, that ^a party is denied recourse to substantive justice by reason only of wrongly filing under rule 9 when he can and could have rightly filed under r.24 of this same Order 9. Article 126 of our Constitution, as well as section 35 of the Judicature Act, mandate the Courts of this land to administer substantive justice without undue regard to technicalities. In my view, therefore, the present case would have been a prime candidate for applying the Constitutional mandate - either by allowing the Applicant to amend the application appropriately, or by simply ignoring the wrong reference to rule 9, and invoking instead the correct provision (i.e. rule 24).

However, in this case, the position is much more complex than that. Rule 9 applications require a much lower standard of proof from the Applicant; and concomitantly give the Court unfettered discretion to grant the application see **Patel v. EA Cargo Handling Services (1974) EA 75;** and **Kimani v McConnell (1966) EA 547, at p.555.** Rule 24 applications, on the other hand, require a much higher standard of proof; and concomitantly confers on the Court only limited discretion to grant the application - see **Sebei District Administration v. Gashali** (1968) **EA 300.** In these circumstances, for Court to order either a mere amendment of the pleadings or to completely ignore the rule, simply cannot do. In the result, Court is constrained to conclude that the instant application is indeed incompetent by reason of having been brought under the wrong rule of 0.9.

### " **Sufficient Cause"**

The above conclusion disposes of the matter. Nonetheless, ^I wish to add that even if the matter were to be considered further, Court would still deny the application for failure to satisfy the test required of the Applicant under rule 24 of 0.9. The test is couched in terms of "sufficient cause". That phrase has been considered by the Courts in a line of authorities. In this regard, it is not true as learned counsel for the Applicant pressed that the phrase "other sufficient cause" has to be construed *ejus dem generis* with the preceding phrase in that rule, namely "failure to serve summons". Any such construction would unduly constrict the plain meaning of the two phrases. Moreover, it would go counter to all the authorities on the point. The authorities have held the following grounds and circumstances to amount to "sufficient cause":

- (') ^a mistake by an advocate, even ^a negligent mistake - **Shabin Din v. Ram Parkashanand (1955) 22 EACA 48;** - (ii) ignorance of procedure by an unrepresented Defendant - **Zirabamuzale v. Gorret (1962) EA 494;** - (iii) illness by ^a party - **Patel v. Star Mineral Water & Ice Factory (1961) EA 454.**

In the instant application, the main ground given for the failure of the Applicant to attend Court, was his alleged mistaking of 6th March for 6th February as the day fixed for the hearing of the matter. This is simply implausible. The Applicant was personally present in Court when the hearing date was fixed. He now contends that he was seated at a distance from the Judge and could not hear the date properly. However, the hearing was not held in a cavernous court room. Rather, it was held in the Judge'^s Chambers - ^a medium sized room. More importantly, Applicant's counsel was also present at that hearing, seated at the bar - literally next to the Judge himself. It is therefore not possible that both the Applicant and his counsel jointly and severally mistook the hearing date. True, Applicant subsequently changed his counsel. Nonetheless, it was up to either the old counsel or the Applicant himself to brief the new counsel concerning the next fixture of the matter. Quite evidently no such briefing was ever given to the new counsel with the result that on the subsequent hearing date, both the Applicant and the new counsel were absent from Court. Be that as it may, the law on this point is trite. Failure by a party to give proper instructions to his advocate does not constitute ^a sufficient cause for that party'^s non-appearance at the hearing see **Zirabamuzale's** case *(supra).*

Accordingly, the instant Applicant is unable to meet the high standard required of Applicants under rule 24 of 0.9.

#### **Auctioneers' [excess] authority:**

There remains only the subsidiary ground pressed by the Applicant to the effect that the Auctioneers exceeded their instructions in selling the suit property through a *weekly* (instead of a *daily)* newspaper advertisement; selling it by *private treaty* (instead of by *public auction)]* and selling the property on *credit terms* (instead of on *cash).* The simple response to all these is that Clause 3(B)(i) of the Mortgage Deed dated 22/02/95 and entered into between the Parties to this application, clearly and effectively gives the Respondent Mortgage Bank, (through its Auctioneers) power to:

" sell or concur with any other person in selling the mortgaged property or any part or parts thereof in one or more lots by public auction or *private treaty and subject to such terms and* conditions as the Bank shall in its absolute discretion think fit and may buy or vary or rescind any contract for sale and resell in manner aforesaid without being liable for any loss occasioned thereby and the Mortgagor hereby irrevocably consents to the carrying out of any <u>such sale or resale by private treaty</u>." [emphasis added]

It is, therefore, evident that from whatever angle one looks at this application, there is but one inescapable conclusion to draw $-$ namely, that the application is incapable of being justified either as legally competent, or as passing the test of "sufficient cause" required under rule 24 of 0.9 of the CPR.

The application is hereby dismissed, with costs to the Respondent.

#### Ordered accordingly.

## James Ogoola JUDGE 26/03/03

#### DELIVERED IN OPEN COURT, BEFORE:

Nerima, Esq – Counsel for the Applicant Mr. Kaweesi – Managing Director, of Applicant Company David Mpanga, Esq – Counsel for the Respondent J. M. Egetu – Court Clerk

### James Ogoola **JUDGE** 26/03/03