[2025] UGHC 289

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## **MISCELLANEOUS CAUSE NO. 028 OF 2024**

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SERUNJOGI BENARD....................................

#### **VERSUS**

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SSEKYANZI ADRIAN....................................

## **BEFORE: LADY JUSTICE DEEPA VERMA**

#### **RULING**

This Application was brought under Order 9 Rule 20(1)(a) of the Civil Procedure Rules (CPR), S. I. 71-1, by the Applicant seeking leave of this Court to proceed ex-parte in the hearing of Miscellaneous Cause No. 028 of 2024.

#### **Background**

The Applicant instituted this application on the 15^th day of August, 2024 and the Respondent was served with this application on the 17^th October, 2024 through his lawyer Mr. Sserwadda Mushrin of Sserwadda, muhereza & Co. Advocates as evidenced by affidavit of service dated 25^th October, 2024 notifying him of the hearing date of 16^th January, 2025 at 9am. By that date the Respondent had not filed an affidavit in reply and the Court did not proceed due to court census activities, the matter was adjourned to 18^th March, 2025 at 9am. Thereafter Counsel for the Applicant extracted hearing notices and served them on the Respondent through his whatsapp and at his place of work as evidenced by Affidavit of Service dated 20^th February, 2025.

On the 18^th March, 2025, the Respondent appeared in Court and had filed an affidavit in reply dated 14^th March, 2025 out of time. Court advised the Respondent to instruct an

advocate to represent him and do what the law requires by 3^rd April, 2025 and the matter was then adjourned to $17$ ^th April 2025.

When the matter came up for hearing on 17^th April, 2025 at 9 a.m., the Respondent did not appear in Court, neither did he instruct an advocate as was ordered by this Court.

The Applicant's counsel then sought leave to proceed ex parte, Court ordered him to file submissions which he did with a singular issue for determination being:

## Whether the Applicant should be granted leave to proceed ex-parte with the hearing of Miscellaneous Cause

#### **Representation**

The Applicant was represented by IBC Advocates and counsel filed written submissions. The Respondent was neither in court nor represented.

#### **Determination of this Court**

I have had the opportunity to peruse the court record, the written submissions filed by the Applicant, correspondences, and all the pleadings thereon.

The application is anchored on Order 9 Rule 20(1)(a) of the Civil Procedure Rules, which provides:

- 1. Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing— - (a) if the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex-parte."

This provision vests the court with discretionary authority to allow a Plaintiff to proceed ex-parte where the Defendant fails to appear, provided the court is satisfied that the defendant was duly served with the necessary court processes. The rule is designed to prevent undue delay and ensure that litigants who are diligent in pursuing their claims are not prejudiced by the inaction or dilatory tactics of their opponents.

Additionally, the court's discretion is guided by Article $126(2)(e)$ of the Constitution of the Republic of Uganda, 1995, which mandates courts to administer justice without undue

regard to technicalities, and Section 98 of the Civil Procedure Act, Cap. 71, which empowers courts to make orders necessary for the ends of justice or to prevent abuse of the court process. These provisions underscore the court's duty to balance procedural fairness with the need to uphold the integrity of judicial processes.

Relevant judicial precedents, such as Nicholas Roussos v Ghulam Hussein Habib Virani [1993] UGSC 19 (24 November 1993), emphasize that the court's power to proceed ex-parte is not absolute but must be exercised judiciously, ensuring that the applicant has met the procedural thresholds and that the respondent's conduct justifies such a drastic measure.

The Applicant has adduced cogent evidence to demonstrate that the Respondent was duly served with the court processes in accordance with the law. An Affidavit of Service dated October 25, 2024, confirms that the Respondent was served with the Notice of Motion and accompanying documents for Miscellaneous Cause No. 028 of 2024 on October 17, 2024, through his counsel, Mr. Sserwadda Mushrin of Sserwadda, Muhereza & Co. Advocates. A subsequent Affidavit of Service dated February 20, 2025, further corroborates service of additional court documents and hearing notices on the Respondent via Whatsapp and his workplace.

Under Order 5 of the Civil Procedure Rules, service of court processes must be effected in a manner that ensures the recipient is reasonably informed of the proceedings. Effective service may be achieved through; Personal service on the party or their duly appointed agent.

Service on a party's advocate is deemed effective under Order 5 Rule 10 CPR, as advocates are presumed to act as conduits for communication between the court and their clients. Service on a party's advocate constitutes constructive notice to the party. Service through Whatsapp equally amounts to effective service. Electronic service, where permitted by court directions or mutual agreement, in line with modern judicial practices(paragraph 5 and $7(2)(c)$ of the The Constitution (Integration of ICT into the Adjudication Processes for Courts of Judicature) (Practice) Directions, 2019) (see Male H. Mabirizi v. Attorney General, High Court Misc. Application No. 918 of 2021, per Justice Ssekaana Musa (where service of court of documents through e-mail was

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accepted) and Musumba Isaac Isanga v. Quid Financials Ltd, High Court Misc. Application No. 139 of 2020, per Lady Justice Jeanne Rwakakooko (where service of court of documents through WhatsApp messenger was accepted)

The affidavits of service satisfy this requirement as no evidence has been presented to controvert their authenticity. The court is therefore satisfied that the Respondent was duly notified of the proceedings, fulfilling the condition required under Order 9 Rule 20(1)(a).

The Respondent's conduct throughout these proceedings has been marked by persistent non-compliance and unexplained absences. The record reflects that the court, in its indulgence, granted the Respondent an opportunity to participate in the proceedings.

On March 18^th, 2025, the Respondent appeared in court in person. The court, in a bid to ensure fairness, granted him leave to instruct an advocate and do what is required of him under the law by April 3, 2025. The Respondent neither appointed an advocate to represent him nor filed the application for enlargement or extension of time to file his reply out of time as required under the law, effectively squandering the court's leniency.

On April 17^th, 2025, the Respondent failed to appear in Court and provided no explanation for his absence. This absence, coupled with his prior non-compliance, demonstrates a pattern of disregard for court processes.

In the interest of Justice, Courts should not permit litigants to abuse judicial processes through deliberate inaction or delay. As Justice Stephen Mubiru emphasized in the case of Akuta Alfonse & 3 ors Vs Lakony David Livingstone CA No. 0026 of 2015 that;

> A party who willfully and voluntarily absents himself or herself from proceedings cannot claim breach of fair hearing where he or she has willfully absented himself from the hearing or failed to give evidence *when called to do so.* (see Attorney-General of Rivers state v Gregory Obi Ude and 12 others(1993)2 NWLR (Pt. 278) 638; (1193) 2 SCNJ 47.)

The Respondent's conduct falls squarely within this mischief, warranting the court's intervention to prevent further prejudice to the Applicant.


This Court in exercising its discretion is mindful of the Respondent's must conduct and the need to uphold the integrity of the judicial processes especially where a party persistently fails to comply with court orders or appear without justifiable cause, the court is justified in proceeding ex-parte to avoid undue delay and prejudice to the diligent party.

In the instant case, the Respondent has been afforded multiple opportunities to participate, including adjournments and an express order to instruct an advocate to file his reply out of time. His failure to seize these opportunities, coupled with his unexplained absence on April 17^th, 2025, leaves the court with no reasonable alternative but to grant the Applicant's prayer. To hold otherwise would incentivize litigants to obstruct justice through deliberate non-compliance, thereby undermining the authority of the court and the expeditious resolution of disputes.

In conclusion therefore; the Applicant has satisfied the requirements of Order 9 Rule $20(1)(a)$ of the Civil Procedure Rules by demonstrating that the Respondent was duly served with the court processes and that the Respondent has persistently failed to comply with court directives or appear without justifiable cause. The Respondent's conduct marked by repeated non-compliance, failure to file pleadings, and unexplained absence constitutes a deliberate attempt to frustrate the proceedings. Granting leave to proceed ex-parte is therefore necessary to uphold the integrity of judicial processes, prevent abuse of court procedures, and ensure that the Applicant is not prejudiced by the Respondent's inaction.

For the reasons stated above, it is hereby ordered that:

- $\mathbf{i}$ . Leave is granted to the Applicant, to proceed ex-parte in the hearing of Miscellaneous Cause No. 028 of 2024. - ii. The costs of this application shall be borne by the Respondent, Mr. Ssekyanzi Adrian.

I so order.

HON. LADY JUSTICE DEEPA VERMA

DATED AT MPIGI THIS S DAY OF MAY 2025.

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