[1986] UGSC 17


MUGEKYI & CO. ADVOCATES RESPONDENT

(Appeal from the ruling and order of the High Court of Uganda (P. A. P. J. Allen, J) dated 18th of April, 19S4.

in

## CIVIL SUIT NO. 306/84

## JUDGMENT OF LUBOGO AG. J. A.

This appeal arises out of HCCS 306/82 which was an offshoot of HCCS 703/81. The facto are as follows

The respondent, Mugenyi and Company, Advocates had been acting for\* the appellant the National Insurance Corporation for a number of years. The appellants withdrew instructions from the respondent before professional fees had been paid. The respondent then filed several actions against the appellant. Thse civil actions were consolidated in HCCS 703/81. The respondent having been successful applied for execution of tho decree by way of attachment of the alleged appellant's building situated at Plot 13B Kampala Road known as Amadinda House. The appellant filed objection proceeding under rule 55 of Order 19 through Mr. Mulira Advocate stating that the building could not be the subject of attachment for the liabilities of the appellant since the appellant was a constructive trustee for and on behalf of the people who hold life insurance policies with it. This application was dismissed by Asthana J, as he then was, on 29/4/8 The appellant then filed a suit No. HCCS 3C6/82 against the respondent. The ©uit cane before Allen J, as he then was, on a number of

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Finally The suit came U?p before Allen J. on ^a Notice of Motion for reinstatement. The Notice of Motion was supported by affidavits sworn by Tumusiime Kateeba and Mulira. The applies- *)* tion for reinstatement of the suit was dismissed\* Hence this appeal. it came up before Kato Ag. J. who dismissed it since the appellant's advocate was absent\*. 'occasions only to be-adjourned for various reasons.

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However, the application having been dismissed the appellant applied for stay of execution against the ruling of Allen J. before Ouma Ag. J. the learned judge ordered that the decretal amount already paid in court oe detained in court pending the disposal of the appeal. The respondent was not satisfied with this order. Anotner application came before Kityo J, for reversal of the orser made by Ouma Ag. J. Kityo J'^s decissxon was not quite clear. However, the case reached this court in regard to the Order of Allen J. of 18/4/8^.

There were six grounds of appeal. appeal was heard Mr. Mulira for the appellant applied for amendment of the Memorandum of Appeal by including the prayer that this honourable court set aside the order of Allen J, dated 18/«/8\*» and to order tne reinstatement of HCCS >06/82 and to make such orders as to costs. This application was not opposed. Mr. Mulira, then dealt with all six grounds of appeal jointly. During the course of his suumissions, Mr. Mugenyi rose on a point of objection in that the memorandum was filed out of time. After listening to both parties tne hearing was adjourned. On resumption Mr. Mugenyi abandoned his objection and the hearing continued. However, before the

Motion was supported by three affidavits in which substantial issues were raised but the judge did not consider tnem with In his submissions Mr. Mulira stated that his Notice of

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the relevant authorities he had cited before him\* He stated that the learned judge ignored. the provisions of &rder»18 rule 4 of the C. P. K. by not riving reasons for his decision. Jounsel cited a numuer of authorities to substantiate his argument. He referred specifically to Jamnudas Hodha, v» norahundus Hemruj (1952) 7 ULR7 where it was stated that the court should consider the nature of the case and the defence if any. He submitted that the nature of this instant case was unique in that it was filed under Order 19 rule bO of the Civil Procedure Huies which permits a second suit to be filed contrary to res judicata rules. He submitted that the Insurance Decree No. 19/78 raised legal points one of which is whether the appellant is a constructive trustee in connection with the amudinda House wnich was the subject of attachment. For this reason the learned trial Judge snould have reinstated the suit, and not just dismiss it on the ground that it was res judicata when that legal point was not argued before him.

In his submission counsel for the respondent stated that he had no interest in the case. He said the application had been brought under Order 19 rule \*20. Under the provisions of that Order the court is enjoined to exercise its diacrotion on two grounds namely whether there is a sufficient cause and whether there is likely to be a miscarriage of justice. He referred us to Karuun v. Rurhvujoe 10 &. A. CA 10 in which it was stated that the appellate court should not interfere with the finding of the lower court. He went on to suy that the appellate court could only interfere where there has been a miscarriage of justice us in the case of the Dunk of India Ltd v. Baniblia H. Patel Ltd (1965) b. A.653.

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In his short rulin the learned jud-e hud this to say when dismissing the suits\*

^Obviously counsel suould not wander out of court when waiting for a case to be heard as it is aeluou not possible to tell what will happen from one minute to the next.

On the question of merit and whether or nut there has been a miscarriage of justice I have earlier in this case in November 19OL expressed the view several times that cue plaintiff'a claim was ros juaicute and ^I am stixl *oi* that

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I do' not see why the matter is still Therefore' I cannot hold that the opinion. pressed. dismissal of the suit would result in a mis\* carriage of justice.

Parties must attend court and stay in court on hearing days or take the consequences.

This application to re-instate the suit which was dismissed on 9/3/84 is refused and dismissed with costs."

Obviously the learned judge did not consider the affidavits filed or the authorities cited to him. In his affidavit Mr. Tumusiime said he had arrived at 9»O5 a.m. in the Judge's chambers and found the judge trying to telephone for a court clerk. Mr. Mugenyi and Mr. Kateeba were present. Mr. Tumusiime snipped out at the time when the judge was trying to get a court clerk, when he came back five minutes after his case had been called out and Mr. Mugenyi had asked for dismissal and it had been done. Mr. Kateeba also swore to the same facts.

Luke Victoria Bottling Co. Ltd, v. Anthony Constance, Civil Case No.6 of 196^ was cited to us as well as in the lower court. The facts of this appeal can be distinguished from that case. In that case an application to set aside the order of • dismissal of the suit was dismissed on the ground that the applicant did not do his best in that he did not take a taxi from Kampala to Jinja in time so as to be in court at a specified time. The learned Jud-e Keating J. while dismissing the application further said that the test to be applied as a general rule was to see whether the party applying honestly intended to be present at the hearing of the suit and did his best to do so.

A five minute walk out while the Judge was looking for a court clerk cannot be referred to as ''wander out of court." There must have been a reason.

In his submissions, in the lower court, Mr. Mulira did refer to a number of cases but all of tuem were ignored by tae learned jud^e. No reference was made whatsoever to them. In his submission to us Mr. Mugenyi rightly stated that a trial judge has a discretion in the matter, and this discretion must be exercised on two grounds namely whether

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carriage of justice. That submission would be\*in conformity with Order 9 rule 20 of the Civil Procedure Rules. However, the learned judge did not consider the issue of whether there was sufficient cause. but only the issue whether miscarriage would result. His finding was that no miscarriage wo^ld be caused because he had a preconceived opinion that the suit was res judicata which issue three occasions when this matter came up. If be had considered the issue .of sufficient cause probably he would have applied the authority in Girado v Alam & Sons (U) Ltd. (1971) a. A. 448 where no sufficient cause to the learned judge. The provisions of section 101 of Civil procedure Act has a wider application than the provisions of Order 9 rule 20 which merely refers to referred to the same issues were considered and thia is what Ainely J, had tnere is sufficient ,cause and whether there is likely to be a mis- (jhasra)^ was never before him on the was sir.rn, nevertheless that court set aside the dismissal of the suit by invoking the inherent jurisdiction of the court, this course was open merely refers to "sufficient cause¹¹ as it was stated in Kalemera^ In Jamnadas Sodhu v. Gordhandas Hemraj (19>2) ULR? already

to say.

"In my view that (i.e. the poverty of the excuse) is not the sole mutter wulch must be considered in cases of thia kind. The nature of the action should be considered, the defence, if one has been brought to the notice of the court, however irregularly, should be considered, the question us to whether the plaintiff can be reasonable , be compensated by costs for any delay occasioned should be considered, and finally I taink it should always be remembered that to deny the subject a hearing should be the last resort of a court."

## See aIso Sebei District Administration v. Gaayali & Others (i960) d. A, 300«

It would appear that the learned judge did not even look at the plaint to satisfy himself us to the nature of action that was being brou ht. paragraphs 5 and 6 of the plaint show clearly the nature of action that was being brought. If the learned Jude had done so he would have had the occasion to change his opinion that the mutter was not res judicata.

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In Xuogo ana another v (1968) K. A« 93

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This i-ast to be followed -if the appellate court should reverse the decision of the High Court\* Newbold P had tnis to say at p«9^>< African Court of A.peal case laid down the principle

"For myself I like to put it in the words th«t a Court of Appeal should not interfere with the exercise of the discretion of a jud~e unless it is satisfied that the jud^e in exercising his discretion has misdirected himself in some matter and as a result he has arrived at a wronf? decision^t or unless it is manifest from the case us a whole that the jud^e has been clearly wrong in the exercise of his discretion and that as a result there has boon misjustice."

I do agree with that px\*inciple as stated by the learned President\* It is a sound principle to go by in the instant appeal. As I said before the learned trial judge did not consider the affidavits or the authorities nor did he peruse the plaint\* The plaint averred in paragraph 5 that unaer section 13 of the insurance .decree 1978 the premises were not liable to attachment\* This alone in ay opinion would have justified the seating asiae of the dismissal of the suit by • Kato J^t taken together with other circumatuncoe in the cose\* It has been stated on many occasions in our courts that the poverty of excuse is not the only criterion\*

On the whole the learned judge did not avail himself of the judicial basis available co aim in the exercise of his discretion.

For the reasons uiscusaed above I would allow the appeal wi;h costa here and in tnu court below.

The p1'1er disodLssing the suit would be set aside.

IMT^. T.,13 ..3. P./^... UnT OF rUT, I9o6.