[2021] UGCommC 62

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **[COMMERCIAL DIVISION]**

## **M. A No. 380 of 2021**

### **CIVIL SUIT No. 443 of 2015**

**PARAMBOT BREWERIES (U) LTD (IN RECEIVERSHIP)::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

- **1. STANDARD CHARTERED BANK** - **2. DAVID MPANGA**

**(RECEIVER)::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **BEFORE: HON. JUSTICE DUNCAN GASWAGA**

#### **RULING**

- [1] This is a ruling brought under Section 98 CPA, Section 33 of the Judicature Act, Order 9 rule 23 and Order 52 rules 1, 2 and 3 of the CPR for orders that; *the order ofdismissal of Civil Suit No, 443 of 2016 issued by this Honorable Court on 24th August, 2020 be set aside; the Suit No. 443 of 2016 be reinstated and fixed for hearing and costs be provided for.* - [2] The grounds of this application were contained in the affidavit of **Mr. David Ochieng** in support of the application and they are briefly that; there was sufficient cause for non-appearance of the applicant on

24/08/2014 when Civil Suit No.443 of 2016 came up for mention and directions and at the time of the dismissal, counsel for the applicant had taken all steps to have the matter fixed and was laboring under an honest but mistaken belief that the matter was before Justice Boniface Wamala to whom it had been assigned and was pursuing the matter to be fixed before him before the learned Judge was transferred and that the application has been brought without unreasonable delay.

[3] Counsel submitted that in order for a court to set aside a dismissal, sufficient cause must be shown for the same. See Order 9 rule 23 and **Niaqi Vs Munyira (1975) EA 179-180.** That the suit was fixed for 28th July 2020 and both parties were absent in court. That on the said day, the court ordered for summons for mention and direction to be extracted and served on both parties to appear in court on 24/08/2020, on which date Counsel for the respondent appeared and prayed for dismissal of the suit and that prayer was granted. That counsel's nonattendance was due to court's failure to serve the applicant's Counsel with hearing notices. There is no evidence on record to show that such service was effected on applicant's Counsel. See **Isaduru Vicky Vs Perina Aroma Civil Appeal No. 0033 of 2014,** Further, that the respondents informed the applicants of the dismissal of Civil Suit 443 of 2016 in their pleadings in a suit filed on 17/12/2020 but that this was not sufficient notice and that on the 28/08/2020 when respondents extracted an order for dismissal, the same was never brought to the attention of the applicant's counsel for approval. That counsel took necessary steps to have the matter fixed for hearing, see Annexure N and Q, and that this application has been brought without

unreasonable delay. That as such, no injustice is occasioned to the respondents if this suit is reinstated and heard on merit.

- [4] In response thereof, the 1st respondent stated that after four years of filing the suit, the applicant had never taken any essential steps in having the matter prosecuted i.e since 2016. That the applicant's explanation about non-appearance does not suffice as sufficient cause **See National Insurance Corporation Vs Mugenyi and Nakiridde Vs Hotel International Ltd [19871 85.** The 1st respondent further stated that the court ought to exercise its discretion and dismiss the application since the applicant has never exercised any due diligence in prosecuting Civil Suit 443 of 2016, failed to fix the applications for stay of execution in the Court of Appeal but has since been relying on the interim order granted by the court for over a year now and this has greatly prejudiced the 1st respondent who has been unable to recover its money for 6 years now. That the applicant's inordinate delay is an abuse of court process since the main suit herein has been pending for five years and the same has never been fixed for hearing. See **Birkett Vs James f19781 AC 297 as cited in Isadru Vs Aroma & Ors Civil Appeal-2014.** That the application for reinstatement was made six months after the dismissal yet the applicant was informed of the dismissal in December 2020. The 1st respondent prayed that the suit be dismissed with costs to the 1st respondent - [5] In a brief rejoinder the applicant stated that the suit cannot be dismissed where the court set down the suit *for* hearing and did not take the reasonable steps to inform the applicant about the suit. Further that sufficient cause has been shown to warrant setting aside

the dismissal of Civil Suit 443 of 2016 that the application has been filed within a reasonable time.

[6] Order 9 rule 23 of the CPR states thus;

*23. Decree against plaintiff by default bars fresh suit.*

*(1) 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 forbearing, the court shall make an ordersetting 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.*

*(2) No order shall be made underthis rule unless notice ofthe application has been served on the opposite party.*

[7] In the case of **The Registered Trustees of the Archdiocese of Par es Salaam Vs The Chairman Bunju Village Government & others Civil Appeal No. 147 of 2006** it was stated that;

> *"sufficient cause is proven if ^a party and his advocate show that he and his lawyer did not act in a negligent manner but more importantly that there was want of bonafide on their part in view of the facts and circumstances of a case and the applicant cannot be alleged to have been "not acting diligently" or "remaining inactive".*

[8] Further in the case of **Nakiridde Vs Hotel International Ltd f19871 85** Kalanda A. J, while relying on the holding in **National Insurance Corporation V Mugenyi and Company Advocates F19871 HCB 28** held that;

> *" In considering whether there was sufficient cause why Counsel for the applicant did not appear in court on the date the application was dismissed, the test to be applied in cases ofthat*

> > 4

*nature was whether under the circumstances the party applying honestly intended to be present at the hearing and did his best to attend. It was also important for the litigant to show diligence in the matter....... "*

[9] In the instant application, the applicant has stated that it was never aware of the dismissal of Civil Suit 443 of 2016. It is the respondent's contention that the applicant has not taken any sufficient steps in prosecution of the suit since 2016, which is now five years. This is apparent in the fact that; following advertisement of the mortgaged property the applicant filed H. C. C. S No. 443 of 2016 and subsequently filed HCMA 517 of 2016 and HCMA No. 516 of 2016 for interim order and temporary injunction respectively, which were both granted; the same were conditional and lapsed after 6 months whereof the 1st respondent re-advertised the property. The applicant then filed other applications for temporary injunction which was granted with a condition that the applicant pays 30% of the forced sale value of the land or the outstanding amount within sixty days; the said decision was appealed against by the applicant vide Civil Appeal No. 200 of 2018 and sought an interim order and main stay of execution pendig hearing of the appeal whereof the interim order was granted but main stay of execution dismissed on 23/09/2019. Upon dismissal of the application for stay, the applicant applied for an interim order and a temporary injunction in the court of appeal vide M. A No. 373 and 372 of 2019 respectively and on 16/03/2020 obtained an interim order pending hearing of the application. The applicant has not followed up to have the ruling in the main application delivered and yet the 1st respondent has been doing the same. See annexure "K" of the affidavit in reply.


- [10] Subsequently, the applicant wrote to court requesting for a hearing date and the suit was fixed for hearing on 28/07/2020 on which date the applicant was not in court. The hearing was then adjourned to 24/08/2020 and still the applicant did not attend, whereof the suit was dismissed. In a suit against the guarantors of the applicant, the 1st respondent indicated that the suit by the applicant had been dismissed and the same defence was served onto the applicant's counsel on 25/01/2021. Thereafter, the applicant wrote to this court on 09/03/2021 requesting the court to allocate the file and have it mentioned. - [11] No evidence was brought by the applicant to rebut this evidence. It is indeed clearthat the applicant is abusing court process for its own gain. It is apparent that the applicant has been using court process to deny the respondent from recovering its monies, for five years now. The applicant simply stated that it thought the matter was before Justice Wamala. This ^I find cannot stand since the applicant could have confirmed from the respective court clerk whether the matter was indeed before Justice Wamala. The applicant's reluctance to prosecute the main suit is indeed an abuse of process as was stated in; **IEBC &**

#### **2 Others CA 18/2013** that;

*"we agree with the noble principles which go further to establish that the court's discretion to set aside an exparte judgement or order for that matter is intended to avoid injustice or hardship resulting from an accident, inadvertent or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course ofjustice."*

[12] The court cannot therefore condone dilatory conduct. In as much as the applicant states that it did not know about the hearing, it does not in any way rebut or deny the fact that it has not taken any serious steps

in prosecuting the suit No plausible explanation or sufficient cause has been advanced for the applicant's non-attendance of Court.

[13] **In the circumstances, this application is hereby dismissed for lack of merit. ^I shall make no order as to costs.**

> **^I so order Dated, signed and delivered this 25th day of August, 2021 DuncaryGaswaga JUDGE**