[2025] UGCommC 126

# THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 43 OF 2024 5 (ARISING FROM CIVIL SUIT NO. 226 OF 2022)

ROKO CONSTRUCTION LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

### VERSUS

### MEHTA ELECTRICALS LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

### 10 **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

### RULING

#### **The application**

This application was brought by way of notice of motion under Article 126(2)(e) of the 15 Constitution of the Republic of Uganda as amended, section 33 and 37 of the Judicature Act, section 98 of the Civil Procedure Act, Order 9 rule 27 and Order 52 rules 1 and 3 of the Civil Procedure Rules SI 71-1, as amended. The applicant contends that the respondent counsel made an oral application to proceed with the hearing in *Civil Suit No. 226 of 2022* ex parte and yet the applicant's counsel was prevented by sufficient cause from attending court. The 20 application seeks orders that the order to proceed ex parte in hearing *Civil Suit No. 226 of 2022* be set aside and the matter be set down for hearing interparty; and costs of the application to be in the cause.

#### **Background**

25 The background to this application is that the respondent herein filed a summary suit vide *Civil Suit No. 226 of 2022; Mehta Electricals Ltd versus Roko Construction Limited* against the applicant herein/defendant for recovery of the sum of USD 263,526 being unpaid dues for the supply and installation of electrical works and services at five construction sites of the applicant, together with interest thereon and the costs of the suit. The applicant filed an 30 application for leave to appear and defend the suit and leave was granted. The suit was set down for determination inter-parties. Proceedings were conducted and the matter is currently pending delivery of judgment; depending on the outcome of this application.

The notice of motion is supported by an affidavit deposed by Mark Koehler on 13th January 2025, the applicant's director, setting out the grounds of the application, which briefly are 35 that:

1) The respondent instituted *Civil Suit No. 226/2022* against the applicant by way of specially endorsed plaint.

- 2) The applicant through their advocates Newmark Advocates applied for and were granted leave to appear and defend the suit and also filed their written statement of defence and counterclaim - 3) *Civil* Suit No. 226/2022 was then fixed for scheduling and the matter was scheduled 5 and set down for hearing. - 4) The applicant always attended court on any day set and has been and still is interested in prosecuting the matter. - 5) The applicant was aware that the matter was fixed for hearing on 11th day of December 2024 for hearing of the plaintiff's case and their only witness Mr. Reddy 10 Chandrah was ready to attend court on that day. - 6) On 10th December 2024, the Legal Officer of the applicant, Gloria Mutesi, spoke to Counsel Nelson Ainebyona who is in personal conduct of the matter, who informed her that he was ready to proceed for hearing. - 7) On 11th day of December 2024 at 9.21am, Gloria Mutesi asked the counsel what time 15 the witness should be at court but he told her that he would not make it to court because he was heading to a dentist for a tooth extraction. - 8) The legal officer asked whether the witness should go ahead and attend and Counsel Ainebyona told her there was no need and asked her to attend but she was very far and could not make it. - 20 9) Counsel sent a Legal Assistant called Praise to adjourn the matter because she was not conversant with the matter and did not have the file since she was informed one hour to the matter. - 10)Counsel Ainebyona was later informed by the Legal Assistant that the matter proceeded ex parte and judgment was fixed for 31st January 2025. - 25 11) The said proceedings will prejudice the applicant as he will be denied a chance to a fair hearing yet he is interested in prosecuting the matter. - 12) The applicant was prevented by sufficient cause from attending court because its advocate had a medical emergency of a toothache and was to undergo minor surgery to extract the same, which took place at the same time when the matter came up for 30 hearing. - 13) The respondent will not suffer any prejudice if the matter proceeds inter-parties since the application was brought without undue delay.

The respondent opposed the application through its affidavit in reply deponed by 35 Manjunathan Balaji, the manager of the respondent company and briefly are that:

- 1) As a preliminary point of law that, the present application is misconceived and bad in law as it seeks to set aside an order made under Order 17 rule 4 yet such orders can only be reversed on appeal. - 2) The respondent rebutted that *Civil Suit No. 226 of 2022* did not proceed ex parte since on 11th 40 December 2024, the applicant was represented by Nuwasasira Praise (PC - 002543) who was holding brief for Nelson Ainebyona. The respondent averred that on 23rd October 2024, the matter was adjourned to 11th December 2024 at the applicant's instance.

- 3) Court directed that both parties' witnesses appear on the scheduled date for hearing of the case but the applicant appeared without any witness. - 4) The applicant counsel, Praise Nuwasasira did not ask any questions in cross examination. - 5 5) Since no witness were presented on the applicant's behalf, the respondent's lawyers prayed that the hearing of the matter be closed and directions for filing of submissions be given, and the case be adjourned for judgment. - 6) Court gave directions on filing dates but the applicant did not file any written submissions despite being aware that the judgment of the case had been scheduled for 30th 10 January 2025. - 7) The respondent asserted that the applicant had an opportunity to be heard and as such cannot claim to have been prejudiced by the court's decision to proceed with hearing the case despite the applicant's default to present evidence as directed by court.

## 15 **Representation at the hearing**

The applicant was represented by Mr. Nelson Ainebyona of Newmark Advocates; while the respondent was represented by Mr. Joel Roy Mucunguzi of MMAKS Advocates.

## **Issues for determination**

- 20 The issues for determination are: - 1. Whether the application is properly before court? - 2. Whether the applicant has sufficient grounds for setting aside the order to proceed ex parte vide *Civil Suit No. 0226 of 2022*.

## 25 **Submissions**

At the hearing of this application, the parties proceeded by way of written submissions and counsel for both parties were given schedules to file their respective written submissions and they all complied. The written submissions are on court record. This court shall consider the submissions alongside the respective pleadings and authorities cited in the determination of 30 this application.

# *Decision of court*

The submissions of the parties have been taken into consideration; as well as the relevant legal authorities cited. The submissions will, however, not be reproduced. This application is 35 resolved as follows:

### **Issue 1: Whether the application is properly before court?**

The setting aside of an ex-parte order is ordinarily done to rectify instances where a party has been affected by an order issued by court in their absence. Order 9 rule 27 of the Civil Procedure Rules SI 71-1, as amended, under which the applicant brought this application to 5 set aside the order by Justice Cornelia Sabiiti Kakooza to the plaintiff to proceed *ex parte*, states that[:](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC)

*["In any case in which a decree is passed](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) ex parte against a defendant, he or she [may apply to the court by which the decree was passed for an order to set it aside;](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC)* 10 *[and if he or she satisfies the court that the summons was not duly served, or that](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) [he or she was prevented by any sufficient cause from appearing when the suit was](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) called [on for hearing, the court shall make an order setting aside the decree as](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) [against him or her upon such terms as to costs, payment into court, or otherwise](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) [as it thinks fit, and shall appoint a day for proceeding with the suit; except that](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC)* 15 *where the decree [is of such a nature that it cannot be set aside as against such](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) [defendant only, it may be set aside as against all or any of the other defendants](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC) [als](https://lawbhoomi.com/setting-aside-of-an-ex-parte-order/#Setting_Aside_of_an_ex-parte_Order_under_CPC)*o."

The applicant brought this application under Order 9 rule 27 of the Civil Procedure Rules, 20 which grants the court the power to set aside an ex parte judgment where there is proof that the defendant was not duly served with summons and where the defendant can satisfy court that he had sufficient cause for his non-appearance in court. The applicant herein relied on the aforementioned provision in light of the absence of a specific provision that is applicable to the pertaining circumstances during the hearing of *Civil Suit No. 226/2022;* and also because 25 he believed that he had sufficient cause to warrant setting aside the order to proceed without the participation of counsel for the applicant. The respondent, on the other hand argued that the present application is bad in law since the applicant seeks to set aside an order made under Order 17 rule 4 of the Civil Procedure Rules.

30 The grant of an *ex parte* order would ordinarily arise in an instance where an *ex parte* hearing was held under Order 9 rule 20 (1)(a) of the Civil Procedure Rules. Order 9 rule 20 (1) (a) of the Civil Procedure Rules is to the effect that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, the court may proceed *ex parte* if is satisfied that the summons or notice of hearing was duly served. A defendant who had 35 sufficient reason for non-attendance would be entitled to file an application under Order 9 rule 27 of the Civil Procedure Rules to have a judgement or decree issued during such a hearing set aside.

In this instance, however, there was no judgment or decree issued by court to warrant an 40 application under order 9 rule 27 of the Civil Procedure Rules as the hearing of the suit was still ongoing. The judgment in the main suit was set for 30th January 2025 but could not be delivered pending the determination of this application.

Further, there was no *ex parte* hearing of *Civil Suit No. 226/2022*. The matter did not proceed *ex parte* per se, since a perusal of the record of proceedings shows that Counsel for the applicant had sent Ms. Nuwasasira Praise, the Legal Officer of the applicant to hold brief for him. The term holding brief means that Ms. Nuwasasira was temporarily representing Mr.

5 Ainebyoona lawyer in court due to his absence. This position is supported by Direction 8 of [the Constitution](https://ulii.org/akn/ug/act/statute/1995/constitution) (Adjournments for Courts of Judicature) (Practice) Directions 2019 which provides that:

> "*an advocate holding brief for another advocate shall ordinarily be expected to have instructions to proceed in the matter*."

10 It follows, therefore, that an advocate who holds brief for another is presumed to have valid instructions and their actions can be attributed to the client's case even though it is the other advocate who has personal conduct of the matter. In this instance, Ms. Nuwasasira was put on court record as holding brief for Mr. Ainebyona who was the counsel in personal of the matter. Not only was she present but she also presented her practicing certificate. The 15 respondent herein was represented at the said hearing even though Ms. Nuwasasira did not

proceed since she did not have the respondent's file with her.

In terms of propriety of the application before this court, order 9 rule 27 is inapplicable and Counsel for the applicant should have proceeded under Section 98 of the Civil Procedure Act cap 282 and Order 52 of the Civil Procedure Rules since there is no specific provision to

20 address the situation at hand, where the applicant is represented though not by the Counsel in personal conduct of the matter. Nevertheless, Article 126 (2) (e) of the 1995 Constitution of the Republic of Uganda and section 98 of the Civil Procedure Act cap 282 are invoked so that the application is heard on its merits.

# 25 **Issue 2: Whether the applicant has sufficient grounds for setting aside the order to proceed ex parte vide** *Civil Suit No. 0226 of 2022***.**

In the instant application, an order to proceed with the hearing was granted to the plaintiff following a prayer by Counsel for the plaintiff that the hearing of the matter proceeds. The court granted an order under Order 17 rule 4 of the Civil Procedure Rules SI No. 71-1 which

30 states that:

"*Where any party to a suit to whom time has been granted fails to produce his or her evidence, or to cause the attendance of his or her witness, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may, notwithstanding that default, proceed to decide the suit* 35 *immediately*."

Counsel for the applicant had attached and relied on the record of proceedings in *Civil Suit No. 602/2022 Lecency Equipment Ltd vs Roko Construction Limited*, and not *Civil Suit No. 226/2022 Mehta Electricals Ltd vs Roko Construction Limited*.

According to the record of proceedings on pages 5 and 6, during the hearing held on 11th December 2024, Joel Mucunguzi counsel for the plaintiff, the plaintiff, Manjunathan Balaji the plaintiff's witness and Nuwasasira Praise holding, brief for counsel Nelson Ainebyona, were present in court. Nuwasasira Praise informed court that counsel in personal conduct 5 could not make it for the hearing because he had a tooth extraction. Mr. Mucunguzi responded that the case had been adjourned on account of the defendant, first it was to allow them file their 2nd witness statement which they did not. Counsel prayed to court to proceed under order 17 rule 4 and prayed that the case be closed for the parties to file submissions. The court granted the plaintiff's prayer and court proceeded with hearing of the case that day

- 10 Further the defendant had representation from counsel Nuwasasira Praise, who was holding brief for the counsel in conduct. In accordance with Direction 8 of the Constitution (Adjournment for Courts of Judicature) (Practice) Directions, Legal Notice No. 5 of 2019, the assumption with holding brief is that the substitute counsel is presumed to have all authority to handle the case just like counsel in personal conduct of the matter. The substitute counsel, - 15 therefore, appears as counsel in the matter. This means that the respondent herein was represented by counsel and as such, the proceedings that occurred on 11th December 2024 were not *ex parte* and neither did court make any *exparte* order. In addition, court's decision to proceed with the hearing under order 17 rule 4 of the Civil Procedure Rules was proper since Counsel for the respondent had not executed any of the orders that had previously been - 20 issued by court.

In *Ntalo Mohamed versus Stanbic Bank of Uganda Ltd, Miscellaneous Application No.211/2017*, court stated that,

*"…In our interpretation, the above rule applies either where the suit has been properly fixed for hearing and a party fails to adduce evidence or where a party* 25 *having been given time to do any other act in furtherance of the progress of the case, such party fails to do either or both."*

Further in *Tolit Charles Okiro versus Otto Cipiriano, Civil Revision No. 002 of 2019* court noted that:

"*The rule is limited in its application to cases when the following conditions are* 30 *satisfied: (1) the adjournment was granted to enable a party to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit; (2) such party does not perform the act or acts for which time had been granted to him; and (3) the hearing had been adjourned at the instance of the party which committed default."*

- 35 In the present application, the court had adjourned the matter at the instance of the applicant for the parties to present their witnesses. The applicant failed to present any witness or evidence on the adjourned date. Court did not deny the applicant any opportunity to be heard as the applicant was represented, albeit by an advocate that the Counsel for the applicant states was unprepared. Counsel for the respondent attached evidence of his inability to attend - 40 court to this application, these include: text messages between him and a one Gloria of Roko;

an x-ray of what is indicated to be counsel for the applicant's tooth; and a dental report dated 11th December 2024 from Pan Dental Surgery.

The chat between Counsel for the applicant and Gloria commenced at 9.20am on 11th 5 December 2024. Interestingly it is Gloria who initiated the conversation on the hearing that was set to take place at 11:30am that morning; but counsel in personal conduct of the matter had not bothered to reach out to his client to make the necessary arrangements to ensure that hearing takes place as scheduled and his witness testifies. Further, as at 9.20am Counsel for the applicant had already determined, as per the text messages between him and Gloria, that

10 he was going to have a tooth extraction even before the tooth x-ray was taken and dental report written.

The applicant's counsel was present and was aware of court's direction that both parties should appear at the next hearing with their witnesses. This application appears to be an 15 attempt by Counsel for the applicant to frustrate the determination of this suit. This view is premised on the following:

- *Civil Suit No. 226/2022* is a very old matter that has been in the system for about four years; and it would have been in the interest of both parties to have it efficiently disposed of. - Per the record of proceedings, the suit was set down for scheduling for 10th 20 July 2024, and on the said date, Counsel for the applicant had only filed a witness statement for one witness and sought leave to file the 2nd witness statement on the counterclaim. - Despite the objections of Counsel for the plaintiff/respondent herein, court observed that it was only fair that all witness statements be filed before hearing commences; and the matter was adjourned to 23rd 25 October 224 at 12:00pm - On 23rd October 2024, the plaintiff was ready to proceed with their only witness but Counsel for the applicant had not filed the second witness statement on the basis that the witness had left the company and would not be willing to testify. This was almost four months from the last hearing date. - 30 Court directed that the hearing would proceed under order 17 rule 4 and that the hearing would proceed without the 2nd witness of the defendant since the court directive was not complied with. The matter was adjourned to 11th December 2024 at 11:30am. - At the hearing of 11th December 2024, Counsel for the applicant did not appear and 35 Ms. Nuwasasira Praise held brief for him.

From the foregoing, it is evident that there were deliberate delays to stall the hearing of this matter. I find that this application aims at wasting court's time. In the premises, this application is dismissed with costs to the respondent.

I so order.

- *Dr. Ginamia Melody Ngwatu Ag. Judge th June 2025* - *Ruling delivered via ECCMIS*