[2024] UGCommC 100

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION] MISCELLANEOUS APPLICATION NO. 2340 OF 2023 (ARISING FROM MISCELLANEOUS APPLICATION NO. 0328 OF 2019)**

# 10 **(ARISING FROM CIVIL SUIT NO. 317 OF 2019)**

## **PEOPLE FINANCE**

**INVESTMENT CO. LTD. ::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

15 **1. MUHAMMED BUWULE KASASA**

# **2. KASASA JAFFAR BWETE**

**3. JIMMY KITAMIRIKE ::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **Before Hon. Lady Justice Harriet Grace Magala**

20 **Ruling**

#### **Background**

This application was brought under Section 98 of the Civil Procedure Act Cap 71, Order 9 Rule 18, and Order 52 Rules 1 & 3 of the Civil Procedure Rules S. I No. 71- 1 as amended, seeking for orders that:

- 5 1. This honourable court sets aside the order dismissing HCCS No. 317 of 2019 and the same be reinstated. - 2. Costs of this application be in the cause.

The application was supported by an affidavit sworn by Mr. Jeffrey PNG Koon Lee, the director of the Applicant/Plaintiff company where he briefly stated that the 10 Applicant filed Civil Suit No. 317 of 2019 against the Respondents for recovery of a liquidated sum of USD 190,852. That the Respondents were granted leave to file a defense and consequently the matter went through mediation which failed. That the suit was partly heard before Hon. Justice Wabwire Richard Wejuli and a partial decree was entered by court on admission of part of the claim by the Respondents.

- 15 That through the Applicant's advocates, it requested for a hearing date on several occasions to dispose of the remaining claim in the suit to no avail. That following that delay, the Applicant and Respondents attempted to have an out of court settlement which hasn't equally been fruitful although promising. That the suit was listed for weeding out and the same was dismissed for non-appearance of either party - on 27th 20 September, 2022. That neither the Applicant nor its lawyers have ever received any communication to the effect, that the suit was fixed for hearing and as such parties could not attend court as hearing notices were not issued or served. That the Applicant is still interested in prosecuting its case and therefore, prays that court sets aside the order dismissing the suit and the same be reinstated for hearing 25 interparty. - **Appearance and representation**

The Applicant was represented by M/S Kasumba, Kugonza & Co. Advocates while the Respondents were represented by M/s S. K Kiiza & Co. Advocates. The Respondents have not filed their Affidavit in reply till date. This court issued a hearing notice on 8 30 th November, 2023 at 10:06 am inviting the parties for a hearing

of this application on 21 5 st March, 2024 at 10:30 am. The case was heard and determined in the absence of the Respondents.

#### **Issues for determination**

- 1. Whether there is sufficient cause shown by the Applicant to warrant setting aside the dismissal and reinstate Civil Suit No. 317 of 2019 - 10 2. What remedies are available to the parties?

#### **Determination**

# **Issue 1: Whether there is sufficient cause shown by the Applicant to warrant reinstatement of Civil Suit No. 317 of 2019?**

The powers of this court to exercise its discretion to set aside and reinstate a

15 dismissed suit for non-appearance are found under **Section 98 of the Civil Procedure Act, Cap 71** and **Order 9 Rule 17 & 18 of the Civil Procedure Rules S. I No. 71-1 as amended**

# **Section 98 of the Civil Procedure Act Cap 71**

#### *"Saving of inherent powers of court*

20 *Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."*

#### **Order 9 Rule 17 & 18 of the Civil Procedure Rules S. I No. 71-1 as amended**

#### *"17. When neither party appears suit dismissed.*

- 25 *Where neither party appears when the suit is called on for hearing, the court may make an order that the suit be dismissed.* - *18. Plaintiff may bring fresh suit or court may restore suit to file.*

- 5 *Where a suit is dismissed under rule 16 or 17 of this Order, the plaintiff may, subject to the law of limitation, apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her nonappearance, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."* - 10 The Applicant/Plaintiff has the burden of proving to this court on the balance of probabilities even where the matter is not defended as stated by Hon. Lady Justice Flavia Senoga Anglin in the case of *Mwesigye Warren vs. Kiiza Ben (HCCS No. 320 of 2015)* and according to **Section 101 & 103 of the Evidence Act Cap 6.** The Applicant subsequently has to satisfy the court that there was sufficient cause for its - 15 non-appearance which relates to failure by the Applicant to take a necessary step at the right time to prosecute her case.

The Kenyan case of *Gideon Mosa Onchwati vs. Kenya Oil Co. Ltd & Anor [2017 KLR 650*, described what constitutes sufficient cause as follows;

*"…In this context, sufficient cause means that party had not acted in a* 20 *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* 25 *exercises discretion, it has to be exercised judiciously."*

The principles to be followed by courts in determining a case with sufficient cause were enunciated in the case of *Florence Nabatanzi vs. Naome Binsobodde, SCCA No. 6 of 1987,* where court stated that:

- 5 *"(a) First and foremost, the application must show sufficient 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 of justice normally requires that substance of all* 10 *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) Whilst mistakes of counsel sometimes may amount to an error of judgment but not inordinate delay negligence to observe or ascertain plain requirements of the law;*

15 *(d) Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirement of the law;*

> *(e) A vigilant Applicant should not be penalized for the fault of his counsel on whose actions he has no control."*

20 The Applicant averred in his affidavit and reechoed in its written submissions that Civil Suit No. 317 of 2019 was heard and a partial decree was entered. Subsequently, the parties in several letters requested for a hearing date to dispose of the remaining claim (annexures D1, D2, D3 and D4 Affidavit in support) written between 2020 to 2023. The Applicant submitted that following the delay in securing a date, the parties 25 attempted to have an out of court settlement with offers and counter offers (annexures E1 & E2 Affidavit in support) being exchanged by either party. That pursuant to annexure F, the case was listed for weeding out and eventually dismissed for non-appearance of either party on 27th September, 2022. However, the Applicant/Plaintiff had asked court to schedule a hearing date for the rest of the claim

- 5 to be heard and disposed of. That all these demonstrate the Applicant's diligence and seriousness to pursue her case but was prevented for sufficient cause as the hearing notices were never communicated and or served to the Applicant nor her lawyers. Counsel relied on the case of *Oyollo Rosemary Akech vs. Okello Francis HCMA No. 160 of 2019.* - 10 Court noted that the Affidavit in reply was not filed as at the date of hearing this application and as such the matter was heard to the exclusion of the Respondents. The Applicant's averments and submissions remain unopposed and presumed to be accepted by the Respondents. This fact was explained in the case of *Serefaco Consultants Ltd vs. Euro Consults and Arcadis Euro Consult CACA No. 16 of* - 15 *2007* where Kavuma JA relied on the case of *H. G. Gandesha and Kampala Estates Ltd & G. J. Lutaaya SCCA No. 14 of 1989* and stated that:

*"It is settled law that if the Applicant supports his application by affidavit 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* 20 *unchallenged."*

In the instant case, the reason advanced by the Applicant as to why the suit was dismissed for non – appearance was that hearing notices were never issued upon request. Reference was made to annexures **D** & **F** attached on the affidavit in support. Further on perusing annexures **E**, in my view the Respondent agrees with

25 the Applicant's averments and submissions to have the entire suit amicably settled and to discuss the interest therein.

In my considered view, I find that the Applicant has tried to have the suit disposed of since 2020 until now and she has satisfied court that there was a sufficient reason for her nonappearance at that time, and she's still interested in prosecuting her case.

5 I further find that allowing this application would not in any way prejudice the Respondents.

# **Issue 2: What remedies are available to the parties?**

In the administration of justice to both parties, this court will hear and determine the remaining part of the claim in HCCS No. 317 of 2019 on its merits. The Application

10 is allowed and the order dismissing the Main suit is hereby set aside and the suit reinstated.

Pursuant to **Section 27 of the Civil Procedure Act Cap. 71,** costs shall be in the cause.

**Dated and signed at Kampala this 29th day of April 2024.**

**Harriet Grace MAGALA**

**Judge**

**Delivered online (ECCMIS) this 30th day of April 2024.**