[2025] UGCommC 190

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 361 OF 2025 (ARISING FROM CIVIL SUIT NO. 1424 OF 2024)** 10 **TRUE AFRICAN (U) LTD ::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS KALANGALA INFRASTRUCTURE SERVICES LTD :::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA RULING**

## 15 Introduction

This application was brought by way of Notice of Motion under **Section 33 (now Section 37) of the Judicature Act, Cap. 16, Section 98 of the Civil Procedure Act, Cap. 282, Order 9 rule 27, Order 51 rule 6 and Order 52 rules 1 and 3 of the Civil Procedure Rules SI 71-1**, seeking

20 orders that:

- 1. The ex parte Judgment in *Civil Suit No. 1424 of 2024* be set aside. - 2. The time for filing a defence be enlarged to enable the Applicant file their defence. - 3. Costs of this application be in the cause. - 25 Background

The background of this application is contained in the affidavit in support deponed by **Mr. Nelson Kiiza** the Applicant's Financial Manager, and is summarized below:

- 5 1. That the Respondent filed *Civil Suit No. 1424 of 2024* against the Applicant. - 2. That the Applicant was duly served and upon receiving the summons, it instructed its former lawyers M/s Lukwago Matovu & Co. Advocates to file a defence to the claim and even paid the 10 requisite instruction fees. - 3. That the Applicant's former lawyers acted negligently and did not file the defence to the claim despite being instructed. - 4. That the Applicant became aware of the fact that their former lawyers never executed their instructions when they inquired about the 15 status of the case during its annual audit. - 5. That on 29th January, 2025, it was established that an interlocutory Judgment had been entered against the Applicant pending formal proof. - 6. That the Applicant's lawyers filed this application but it was never 20 admitted until after the final Judgment was entered in *Civil Suit No. 1424 of 2024*. - 7. That the Applicant's former lawyers' mistake and negligence should not be visited on the Applicant who duly instructed and paid the requisite fees and that the application was filed without delay. - 25 8. That the Applicant should also be allowed to file its defence out of time.

In reply, the Respondent through an affidavit deponed by **Mr. Ken Mwesigwa Rwomushana** its Finance and Administration Manager, opposed the application contending that:

- 5 1. The Applicant was duly served with a copy of the plaint and the summons to file a defence on 4th December, 2024 but it ignored the same and did not file a defence to the claim. - 2. Due to the Applicant's failure to file its defence, the Respondent applied for and was granted an interlocutory Judgment and the 10 matter was set down for formal proof. - 3. On 18th February, 2025, this Court delivered the Judgment in *Civil Suit No. 1424 of 2024*. - 4. The Applicant has no defence to the claim in *Civil Suit No. 1424 of 2024*. - 15 5. Despite the Court decree, the Applicant continues to breach the Agreement and the outstanding amount has accumulated to UGX 506,628,861/=. - 6. The Respondent will be prejudiced if the application is granted but in the event that the application is granted, the grant should be 20 conditional where the Applicant deposits in Court the outstanding amounts prior, as a condition precedent.

In rejoinder, **Mr. Nelson Kiiza** the Applicant's Financial Manager, reiterated his previous averments and added that:

- 1. The Respondent's averments are matters that need Court's 25 investigation thus the need to allow the application. - 2. The Applicant has a defence since the amount in the main suit is disputed as it is not ascertained and that the Applicant has always honored its contractual obligations and it owes no amount of money to the Respondent. - 30 3. The Applicant has shown sufficient cause for its failure to file a defence.

## 5 Representation

The Applicant was represented by **M/s Maldes Advocates** while **M/s SM & Co. Advocates** represented the Respondent.

Both parties were directed to file their written submissions but only the Applicant has complied with Court's directives and the submissions have

10 been considered.

# Issues for Determination

Following **Order 15 rule 3(1) of the Civil Procedure Rules** and the case of *Oriental Insurance Brokers Limited Vs Transocean (U) Limited SCCA No. 55 of 1995*, this Court framed the issues to read as follows:

- 15 1. Whether the application raises sufficient grounds to warrant the setting aside of the ex parte Judgment in *Civil Suit No. 1424 of 2024*? - 2. What remedies are available to the parties?

Issue No.1: Whether the application raises sufficient grounds to warrant 20 the setting aside of the ex parte Judgment in *Civil Suit No. 1424 of 2024*?

## Applicant's submissions

Learned Counsel for the Applicant first relied on **Order 9 rule 27** and **Order 51 rule 6 of the Civil Procedure Rules** and the definition of 25 sufficient cause. Learned Counsel then submitted that in the case of *Nicholas Roussos Vs Gulam Hussein Habib Virani & Another SCCA No. 9 of 1993*, it was held that mistake of an Advocate though negligent may amount to sufficient cause.

- 5 That the Applicant was duly served with the summons in the main suit to which it hastily instructed its former lawyers to file a defence to the Respondent's claims as per annexure **"A"**, proof of instructions. That however, the said lawyers acted negligently by not filing a defence to the claim as instructed. That it is now trite that mistake of Counsel should not - 10 be visited on an innocent litigant.

Further, Learned Counsel submitted that it has a good defence to the claim since the amount being claimed in the plaint has no factual basis. That the administration of justice requires that the substance of the dispute is investigated. Also, that the application was filed without unnecessary 15 delay. In conclusion, Learned Counsel prayed that the application be granted.

#### Analysis and Determination

**Section 98 of the Civil Procedure Act** empowers this Court to make such orders as may be necessary for the ends of justice.

## 20 **Order 9 rule 12 of the Civil Procedure Rules** stipulates that:

*"Where Judgment has been passed pursuant to any of the preceding rules of this Order, or where Judgment has been entered by the Registrar in cases under Order L of these Rules, the Court may set aside or vary the judgment upon such terms as may be just."*

25 In the case at hand, it is undisputed that on 4th December, 2024, the Applicant was duly served with the plaint and summons in *Civil Suit No. 1424 of 2024* but no defence was filed. It is also undisputed that on 18th February, 2025, Judgment was delivered in *Civil Suit No. 1424 of 2024* as per annexure **"D"** attached to the affidavit in support.

- 5 In its affidavit in support, the Applicant avers that upon receiving the summons in the main suit, it duly instructed its former lawyers of M/s Lukwago Matovu & Co. Advocates but they acted negligently by not filing the defence as instructed. In evidence, the Applicant adduced annexure **"A"** attached to the affidavit in support. According to annexure **"A"** a letter - 10 dated 9th December, 2024, the Applicant instructed M/s Lukwago Matovu & Co. Advocates to file a response to the claim in *Civil Suit No. 1424 of 2024*. Considering that no defence was ever filed, the Applicant's former lawyers acted negligently when they refused or failed to file a defence in *Civil Suit No. 1424 of 2024*. It is now trite that mistake of Counsel 15 though negligent cannot be visited on a vigilant litigant. (See: *Nicholas*

#### *Roussos Vs Gulam Hussein Habib Virani & Another (supra).*

Therefore, there is just cause to warrant the setting aside of the ex parte Judgment that was entered in *Civil Suit No. 1424 of 2024*.

In the premises, I am inclined to rely on the case of *AG Vs AKPM Lutaaya*

20 *SCCA No. 12 of 2002*, in which **Katureebe, JSC**, held that the litigant's interests should not be defeated by the mistakes and lapse of his Counsel. The same was considered in the case of *Godfrey Magezi and Brian Mbazira Vs Sudhir Ruparelia SCC Application No. 10 of 2002*.

Having considered the above and pursuant to **Section 98 of the Civil**

25 **Procedure Act**, I find it in the interest of justice that the ex parte Judgment in *Civil Suit No. 1424 of 2024* be set aside.

Issue No. 1 is therefore answered in the affirmative.

#### Issue No. 2: What remedies are available to the parties?

In its affidavit in reply, the Respondent contended that if the application 30 is granted, the grant should be conditional where the Applicant deposits

- 5 in Court the outstanding amounts prior as a condition precedent. However, as rightly submitted by Learned Counsel for the Applicant, in such an application, the key condition that the Applicant has to comply with is show that there is just cause, warranting the grant of the application. The Respondent also did not provide any basis for its prayer. - 10 In the premises, this prayer lacks merit.

Having held above that there is just cause to set aside the ex parte Judgment in *Civil Suit No. 1424 of 2024*, this application is granted with the following orders:

- 1. The ex parte Judgment in *Civil Suit No. 1424 of 2024* delivered on - 15 18th February, 2025 is hereby set aside. - 2. The Applicant is ordered to file its Written Statement of Defence within fifteen (15) days from the date of this Ruling. - 3. The Respondent shall file a reply to the Written Statement of Defence within fifteen (15) days from the date of receipt of the Written 20 Statement of Defence.

4. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered electronically via ECCMIS this **26th** day of

**June**, **2025.**

Patience T. E. Rubagumya **JUDGE** 26/6/2025 6:30am

25