[2023] UGCommC 264

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA ICOMMERCIAL DIVISIONI MISC. APPLICATION NO 0683 OF 2023 IARISING FROM MrSC APPLTCATTON NO 1680 OF 20221 lARrsrNG FROM CrVrL SUrT NO 0737 OF 20221

PETER MULIRA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

FIONA NAMAKULA::::::::::::::::::::::::::::3:::::::::::::::::::::RESPONDENT

## BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI

#### RULING

This Application was brought by way of Notice of Motion under section 98 of the civil Procedure Act, order 9 rule 23 and order 52 rules I & 2 of the civil procedure Rules (cPR) for orders that the order of the court dismissing Misc. Application No. 1680 of 2022 be set aside and the said Application be re-instated and heard on its merits and costs be provided for.

The Application was supported by the Affidavit of Peter Mulira, the Applicant and opposed by the Affidavit in reply of Fiona Namakula, the Respondent.

### BACKGROUND

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The Applicant was sued by the Respondent in Civil Suit No 737 of 2022 and ^a Default Judgment was entered against the Applicant. The Applicant then filed Miscellaneous Application No 1680 of 2023 seeking to set aside the Default Judgment and for the main suit to be heard on its merits. During hearing, neither the Applicant nor his Counsel was present thus the Application was dismissed for nonappearance of the Applicants.

#### REPRESENTATION

The Applicant was represented by M/s Erisata & Erisata Advocates whereas the Respondent was represented by lWs Prism Advocates.

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#### **RULING**

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Before I handle the Application on its merits, it is important to first deal with the preliminary objection raised by Counsel for the Respondent.

During submissions, Counsel for the Respondent raised a preliminary point of law that the supporting affidavit deponed by the Applicant is fatally defective and should be struck off the record as it does not disclose his means of knowledge of the facts deponed. He cited the case of Bank Arabe Espanol v Bank of Uganda SCCA NO. 8/98 where it was held that an Affidavit is fatally defective if it does not disclose the deponent's means of knowledge. He then prayed for the Application to be dismissed as it stands unsupported by an Affidavit.

Counsel for the Applicant, in reply, submitted that Order 19 rule 3 of the CPR provides that Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements of his belief may be admitted provided that the grounds thereof are stated.

He submitted that the deponent states facts within his knowledge and where information is from another source, he clearly states so. Further that paragraphs 2 to 10 of the Applicant's Affidavit states facts within his knowledge since he was present on the fateful day at 10:00 am just outside the Court doors when the Application was dismissed.

He cited the case of Mbarara Municipal Council v Jetha Brothers Ltd Misc. Application No. 10 of 2021 arising out of Civil Appeal No.11 of 2013 and stated that Court dismissed the objection when faced with a similar issue. Further, that it is trite law where an Affidavit deponed is made on personal knowledge a reference to knowledge, information and belief may be treated as a mere surplusage. He thus prayed for the preliminary objection to be over ruled.

The issue raised in the preliminary objection is whether the Affidavit in support of the present Application is fatally defective and should be struck out for failure to disclose the source of information.

Affidavit evidence in civil matters is regulated by **Order 19 of the CPR.** The rules in this Order give the parameters within which affidavit evidence is acceptable. It states under Order 19 rule 3 (1) of the CPR that-

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"Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated".

The case of Lakony v Gulu District Service Commission HCCA No. 110 of 2018 propounds that:

"Affidavits based on information must disclose the source of information. An affidavit in which the deponent's source of information is unknown is unreliable and can have no evidential value".

Further in the case of Allen Isingoma v Alex Muhaire & 2 Others Criminal Case No. 39/1992 Court cited with approval the case of Premchard Raichard v Quarry Services Ltd (1969) EA 514 at 517 where Spry JA as he then was stated thus:

"It has repeatedly been said by this court that affidavit based on information must disclose the source of information (see standard— Goods Corporation Ltd vs. Harakhchard Nahus & Co. (1950) 17 EACA 9). On this ground alone the Judge would have been entitled to refuse, to act on the affidavit, this is not merely a matter of form, but goes to the essential value of the affidavit.

It is clear from the above passage that disclosing the source of information of facts deponed to information, and giving ground of belief where facts are deponed to on belief and distinguishing between those facts which are deponed to on information, belief and knowledge of the deponent are fundamental requirements in the drafting of affidavit. An omission in any of them goes to the essential root of the affidavit. It renders the affidavit incurably defective".

Similarly, in the case of KCB Bank Uganda Limited v Kalema Deus HCMA No. 704/2018 Justice Wabwire stated that: -

Non- disclosure of the source of information is however a breach of the law – (Order 19 rule 3 CPR) and has been held to be a fundamental requirement in drafting an Affidavit, with the consequence that omitting to disclose the source of information goes to foundation of the Affidavit thus rendering it incurably defective

Therefore, an omission in the disclosure of the source of information of facts deponed and giving ground of belief where facts are based on belief goes to the essential root of the affidavit. It renders the Affidavit incurably defective, unreliable and without evidential value. Failure to disclose the source of information is therefore a breach of law.

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In the instant case, paragraphs 2 to l0 of Mr. Peter Mulira's Affidavit are reproduced as below:

"2. That when I discovered that there was a default Judgment passed against me, I immediately instructed Matovu, Katerega & co Advocates tofile Misc. Application No 737 of 2022 seeking to set aside the Judgment and the main matter be heard on merits.

3. That at all material times, I reas interested in pursuing the Miscellaneous Application and the main suit to theirfinality.

4. That on the fateful day counsel aruived late when the Miscellaneous Application No 737 of 2022 was dismissed as he indicated in his diary that it was for lOam yet the same had been called at 9am and as a result of his nonappearance the suit was dismissed.

5. That I have been duly informed by my counsel that mistake ofcounsel cannot be visited on an innocent litigant who is ambitious and desirous of prosecuting their case.

6. That it has never been my intention to delay the expeditious disposal of this Application and the main case, neither do I lack interest in the prosecution of the same.

7. It is in the interest ofJustice that the Application be re-instated and be heard on its merits

8. That this Application has been brought without any delay whatsoever.

9. That if the Application is not heard and the suit re-instated, there is a likelihood ofoccasioning grave financial loss and reputation on my side.

10. I depone this Afidavit in support of the Application to set aside the order dismissing Misc. Application No 1680 of 2022 and to re-instate the same for hearing".

I have carefully analyzed the Affidavit deponed by Peter Mulira and in paragraph ⁵ only is a source of information indicated which in effect implies that the rest of the averments are those within his knowledge. I do agree with the counsel for the Applicant that those were facts within his knowledge and this is because he is the litigant in the matter and appears to have been present in the courthouse when his counsel arrived late and found the matter in issue had been dismissed. There was,

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therefore, no need for him to disclose the source of information when the facts as they were laid out were within his knowledge.

The preliminary objection therefore has no merit and is accordingly over ruled.

I will now proceed to determine the main Application on its merits.

The powers of this Court to exercise its discretion to set aside a dismissal and reinstate an Application that has been dismissed are not in dispute pursuant to section 98 of the CPA (Cap 71). This section clothes this Court with the inherent powers to make such orders as may be necessary for the ends of justice.

Order 9 rule 23 (1) of the CPR vests Courts with the power to set aside dismissals thus:

"Where a suit is wholly or partly dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was sufficient cause for nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The rule therefore vests this Court with the powers to set aside a dismissal if sufficient cause for non-appearance when the suit was called for hearing can be shown.

Sufficient cause has been defined in a number of court decisions. In the case of The Registered Trustees of the Archdiocese of Dar es salaam v The Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] KLR the Court while discussing what constitutes sufficient cause had this to say: -

"It is difficult to attempt to define the meaning of the words 'sufficient cause'. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant."

In the same Kenyan authority of Gideon Mosa Onchwati (supra) reliance was made to the Supreme Court of India case of Parimal v Veena which attempted to describe what was "Sufficient cause" and it observed that: -

"Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide 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." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be *exercised judiciously*"

The main issue to be determined in this matter, therefore, is whether there is sufficient cause to warrant the setting aside of the dismissal order in Misc. Application No. 1680 of 2022.

The Applicant's Counsel submitted that Order 9 rule 23 of the CPR allows a suit dismissed under Order 9 rule 22 to be set aside and reinstated if there was sufficient cause for non-appearance when the suit was called on for hearing. He cited the case of Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & 2 others Misc. Application No. 696 of 2018 to define the term sufficient cause. He submitted that the Applicant has sufficient cause for non-appearance on the slated date as it was a mistake of Counsel. Further that the Applicant duly instructed his lawyer Matovu, Kateregga & Co Advocates and the Advocate appeared at 10am as per his diary basing on the result of his last appearance in Court yet the matter was called at 9:00am and dismissed for non-appearance. Counsel submitted that it was the negligence and mistake of Counsel that led to the dismissal having written the wrong time in his diary thus attending Court late yet the Applicant greatly relied on the Advocate's representation on that day.

He cited the cases of Banco Arabe Espanol v Bank of Uganda SCCA No. 8 of 1998, AG v AKPM Lutaaya SCCA No.12/2007 and Godfrey Magezi & Another v Sudhir Ruparelia SCCA No. 10 of 2002 to show that the mistake, negligence, oversight, error or inadvertence of counsel should not be visited on the litigants and that such mistakes constitute sufficient cause.

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The Respondent's Counsel submitted that the Applicant has not bothered to show evidence that he indeed instructed an Advocate and that the authority in the case of Banco Arabe Espanol vs Bank of Uganda (supra) was well interpreted in Kirya v Migereko & Anor CACA 39/2012 which stressed that "clearly, there is a limit to which a litigant can benefit from the decisions of the supreme court that a litigant should not be penalized by mistake of counsel...it beneJits litigants if such mistakes amount to an eruor ofjudgment ". He submitted that the facts of the case of Banco Arabe Espanol(supra) are distinguishable from this case as the Advocate complied but mistook a bank guarantee to work as an equivalent to cash. Further that in this case it was not an error ofjudgment but refusal or failure to appear and prosecute his case. Counsel submitted that Court had already dealt with such a matter in Mwesigye Nicholas v P&A Credit Investments Ltd with similar facts and the Application for reinstatement was dismissed with costs on the ground that the Applicant was not vigilant in his own application.

Counsel for the Respondent also asserted that the Applicant's Affidavit was tainted with falsehoods aimed at misleading Court especially paragraph 2 where he stated that he instructed IWs Matovu, Kateregga & Co Advocates to file Misc. . App. 1680 of 2022 yet the Application was filed by M/s Erisata & Erisata Advocates. Further that the phrase 'mistake ofcounsel should not be visited on the client 'exception is to benefit the litigant and not the advocate. That it should have been another advocate applying to court to plead mistake of counsel otherwise counsel will benefit from his mistake which is not the intention of the exception.

Counsel for the Applicant, in rejoinder, reiterated his earlier submissions on the preliminary point of law as well as those in relation to the reason his counsel did not attend Court on the day the application in issue was dismissed. He also submitted that Counsel Matovu Akram has only appeared in this Application under Erisata & Erisata Advocates.

The question of whether an oversight, mistake, error or negligence on the part of the counsel should be visited on the litigant or whether it constitutes sufficient cause justifuing discretionary remedies from Courts has been discussed in a number of court decisions.

In the case of Banco Arabe Espanol v Bank of Uganda SCCA NO. 8/1998 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 may be constitules just cause

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entitling the trial judge to use his discretion so that the matter is considered on its merits. "

In the case of Edirisa Kanonya & Anor v Asuman Nsubuga & Others HCMA No.373/2022, it was stated that:

"lt is trite law that parties are not visited with punishment arising from the mistake or inadvertence or negligence ofcounsel when the mistake, inadvertence, negligence is in respect to procedural matters in which case, the court would lean towards accommodating the parties' interests without allowing mere procedural irregularities brought about by counsel to preclude the determination ofa case on the merits. The court must however be satisfied that the allegation of inadvertence is true and genuine".

The case of Florence Nabatanzi v Naome Binsobodde SCCA No. 6 of 1987 laid down principles that should be followed by Courts in such cases:

- a. First and foremost, the application must show suficient reason which relates to the inability or failure to take some particular step within the prescribed time. The general requirement not withstanding each case must be decided on facts. - b. The administration ofjustice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights. - c Wilst mistakes of counsel sometimes may amount to an error ofjudgment ^b not inordinate delay negligence to obserye or ascertain plain requirements the law. - d. Where an applicant instructed a lawyer in time, his rights should blocked on the grounds of his lawyer's negligence or omission to comp the requirement of the law. - ^e A vigilant applicant should not be penalized for the fault of his co whose actions he has no control. "

On perusal of the record of proceedings, on the 3.d of April 2023 whe came up for hearing, the Applicant's counsel was in Court and the absent. A request was made for an adjournment and the matter was ad of May 2023 for hearing in the presence of the Applicant,s Coun date, both Counsel for the Applicant and the Applicant were not i Application was called for hearing and the matter was dismi prosecution.

In the present case, the Applicant deponed in his affidavit in support of the Application that his counsel arrived in Court at l0 am instead of 9 am when the matter had been fixed for hearing by the Court and found the same had been dismissed for want of prosecution. This fact was not disputed by the Respondent in any affidavit deponed by her.

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Although the Respondent avers that the Applicant has never attended court to hear his matters, the Applicant deponed to the effect that it was never his intention to delay the expeditious disposal of the Application and the main suit and that he is interested in the prosecution of the same. counsel for the Applicant also submitted that on the day the application in issue was dismissed, the Applicant was present at the courthouse when his counsel arrived late.

It is the considered view of this court that the Applicant has demonstrated that his counsel mistakenly/ erroneously recorded a wrong time in his diary resulting in his non- appearance in Court when the matter was called for hearing at 9 am but appeared at 10 am instead.

Further, Counsel for the Respondent, in his submissions, appears to agree that indeed it was mistake of counsel, but argues instead that the said mistake should only benefit the litigant and not the advocate.

From the fore going, clearly, it was mistake/ error of counsel for the Applicant that caused Court to dismiss the matter in issue and as case law has established, such mistake or error by counsel should not be visited on the litigant.

I agree with the holding of the Supreme Court in the case of Captain Philip Ongom v Catherine Nyero Owota SCCA NO. 14 of 2014 cited by counsel for the Applicant wherein the said court stated that "...a litigant's right to a fair hearing in determination of civil rights and obligations is enshrined in article 28 of the Constitution and should not be defeated on grounds of his lawyer's mistake...',

Similarly, as held in the case of Florence Nabatanzi v Naome Binsobodde (supra), the administration ofjustice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights.

In the premises and being guided by the above authorities, I find that the Applicant has shown sufficient cause for non- appearance when Misc. Application No. 1680 of2022 was called for hearing.

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The present Application is accordingly allowed and the order of dismissal of Misc. Application 1680 of 2022 is set aside and the said Application is reinstated so that it is heard on its merits.

Costs of this Application shall abide the cause.

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HON. LADY JUSTICE ANNA B. MUGENYI DATED:16/9/2023