[2003] UGCA 29

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL NO. 16 OF 2002

JOLLY TUGUMISIRIZE ====================APPELLANT

#### AND

## ZONABIA ZINABWEINE BEINAMARYO========= RESPONDENT

(Appeal against the judgment and Orders of the High Court of Uganda at Kampala (Bossa . J.) dated 20^th August, 2001 in HCCS No. 766 of 1995).

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### JUDGMENT OF HON. JUSTICE S. G. ENGWAU, JA.

This is an appeal against the judgment and Orders of the High court of Uganda at Kampala (Bossa, J.) in HCCS No. 766 of 1995 in which the learned trial judge granted letters of administration to the respondent and the Administrator General jointly for effective administration of the estate of the late Silver Beinamaryo.

The brief background facts of the case, as found by the trial judge, are 30 that Silver Beinamaryo died on 3^rd August, 1995. The respondent was his legal wife married to him under the Marriage Act (Cap 211) on 29^th September, 1964. The respondent had sued the appellant jointly with one Gabriel Tumwesigire for removal of a caveat lodged against her application for letters of administration of the estate of her deceased husband who according to her died intestate. The appellant and Tumwesigire in their written statement of defence claimed that they were the executors appointed by the will of the deceased. The appellant had also claimed to be the second wife of the deceased. Both the appellant and the respondent had each seven and none children respectively with the deceased. 40

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The respondent disputed the said "will" on several grounds including the allegation that the deceased was too sick and illiterate to understand the contents of the will and that it was not properly attested. The appellant, on the other hand, claimed that she was the second wife of the deceased named in the "will" and was entitled to administer the estate as executor, and as such, the respondent was not a fit and proper person to receive grant of letters of administration.

The learned trial judge, however, made the following orders based on $10$ the evidence on record: The caveat lodged on the respondent's application for letters of administration was vacated; the deceased was declared to have died intestate because the purported will was not valid in law; letters of administration were granted to the respondent jointly with the Administrator General. Further, for effective administration of the estate the Administrator General would represent the interest of other children not born by the respondent and awarded costs of the suit to the respondent.

Being dissatisfied with the decision and the above orders, the appellant has lodged this appeal on three grounds, namely:- $20$

- 1. The learned trial judge erred in law and misdirected herself when she relied on oral information from opposite counsel to believe that the defendant's/appellant's counsel was no longer interested in the case. - 2. The learned trial judge misdirected herself when she closed the the $1^st$ service $on$ without ordering defence case defendant/appellant in person. - 3. The learned trial judge generally failed to properly direct herself and thereby reached wrong decision to close the defence case and proceeded to decide the case against the appellant.

Learned counsel for both parties filed their written submissions in accordance with the provisions of rule 97 (1) of the Rules of this court. Both counsel argued all the three grounds together and I am also following the same order. Both counsel agree that the three grounds of appeal revolve on one issue and that is that the trial judge misdirected herself when she closed

the defence case and proceeded to give judgement against the defendant/ appellant.

Mr. Bernard Bamwine, learned counsel for the appellant, contended that the way the appellant's counsel pulled out of the case was not in accordance with the provisions of Rule 2 of the Advacates (Professional Conduct) Regulations, 1977 and in particular regulation 2 (1) thereof. According to Mr. Bamwine, counsel representing the defendant/appellant. Mr. Tibesigwa Bernard, should have written to court and all the interested parties in advance in order to get permission of court before withdrawing from the case as required by Regulation 2 (2) of the above Regulations. In counsel's view, it was, therefore, wrong for the trial judge to close the the judgment against proceeded to give defence case and defendant/appellant.

Mr. Bamwine argued further that an adjournment of the case should have been in the best interest of the appellant so that she would have had the opportunity to take a step she considered necessary to have her case prosecuted either personally or through another advocate. As that opportunity was denied, counsel argued that appellant's constitutional right $20$ to be afforded a fair trial was denied. Learned counsel contended, therefore, that as the court proceeded under Order 15 Rule 3 of the Civil Procedure Rules (CPR), the appellant could not have had a way of explaining her reasons for not reaching court at the time the adverse steps were taken against her. In the premises, the only remedy lay in appeal against the judgment that was subsequently passed, counsel submitted. Otherwise, if the trial judge had applied Order 9 rule 17 (1) (a) CPR alone, the appellant would have moved court to set aside its order of 7.11.2000 to proceed exparte. In counsel's view, application of Order 15 rule 3 C. P. R alongside Order 9 rule 17 (1) (a) C. P. R. robbed the appellant of that remedy. 30

In conclusion, Mr. Bamwine submitted that it was a misdirection on the part of the trial judge to close the defence case and proceeded to pass judgment against the appellant. It was his prayer, therefore, that this appeal be allowed with costs, set aside the judgment and decree of 20.8.2001 and the suit be remitted to the High Court for further hearing before another judge.

Mr. Lwere Muzaphar, learned counsel for the respondent, does not agree. He submitted that it was not true that appellant's counsel, Mr. 40

$10$

Tibesigwa Bernard, had withdrawn from the conduct of her case. If that was the case, counsel submitted that Mr. Tibesigwa should have written to court. his client and the opposite party before court would grant him leave to withdraw from the case. In his view, the information given to court by counsel Nuwagaba on 7^th November, 2000 that Mr. Tibesigwa had lost interest in the case per se does not mean withdrawing from the case. I agree with Mr. Lwere on this issue and, therefore, the provisions of the Advocates (Professional Conduct) Regulations, 1977 are not applicable to the circumstances of this case. The judge's decision was not based on the oral information of Mr. Nuwagaba, according to my finding.

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$20$

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The circumstances of this case, as per evidence on record, include the undisputed fact that it was an old case of 1995. The hearing of this case commenced on 26.5.1998, a period of about 3 years and 5 months after the pleadings were completed. Secondly, the case had been adjourned on numerous occasions at the instance of the appellant. Thirdly, as this was a family matter, relatives tried to reconcile both parties but all in vain. Fourthly, on 22^nd August, 2000, Caroline Tukamuhabwa, as a daughter and representative of the appellant, informed court that the appellant and her lawyer were sick. Court then granted the last adjournment to $7^th$ and $8^th$ of November, 2000, a period of about 2 months and one week for the defence case to commerce. Caroline was directed to tell the appellant and her lawyer accordingly.

On 7^th November, 2000 when the case was called for hearing the defence, neither the appellant nor her counsel, Tibesigwa, appeared in court. On this occasion, there was no explanation on record for their nonattendance. In accordance with Order 15 rule 3 C. P. R and Order 9 rule 17 (1) (a) C. P. R, the trial judge properly, in my opinion, exercised her discretion and closed the defence case. Thereafter counsel for the respondent filed written submission and subsequently judgment was delivered.

Following the above background of this case, it is the argument of counsel for the appellant that the trial judge should have adjourned the defence case when it was called for the hearing on 7^th November, 2000 and that her failure to do so amounted to a misdirection in law. The law relating to adjournment of cases is Order 15 rule 1 (1) CPR which states as follows:

# "Order 15 rule 1 (1). The court may, if sufficient cause is shown at any stage of the suit grant time to the parties or to any of them and may from time to time adjourn the hearing of the suit".

My understanding of the above provisions is that adjournment cannot be granted as a matter of right or course but can only be granted on a proper It involved, therefore, an exercise of application for sufficient cause. discretion by the court and this must be exercised judiciously. See: Shabani Vs. Karada Co. Ltd. [1973] EA 497.

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In the instant case, both the appellant and her counsel were not present in court on 7^th November, 2000. They had been notified of the hearing of the defence case but did not make any application for adjournment or even bother to attend court. The oral information of Mr. Nuwangaba was neither an application for adjournment of the defence case nor was it relevant because the trial judge had discretion either to adjourn the case or to close it. The grant or refusal of an adjournment, in my view, is an exercise of judicial discretion with which this court as an appellate court is always reluctant to interfere with unless the discretion was exercised unjudiciously which is not case here.

In my view, the appellant had had every opportunity to defend herself and she had been notified of the hearing date but failed to turn up or file a In the premises, I would agree with learned counsel for the defence. respondent that the appellant had not acted with due diligence on her case. I therefore, find no justification to fault the trial judge for having refused to grant another adjournment or for closing the defence case because that was the last adjournment as the defence case was scheduled for hearing on 7^th November, 2000.

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As regards the application of Order 9 rule 17 (1) (a) CPR alongside Order 15 rule 3 CPR, it was the argument of appellant's counsel that if the trial judge had invoked the former provisions alone, then the appellant would have been left with a remedy of moving court to set aside its order of 7.10.2000 to proceed ex-parte. In counsel's view, the application of the latter previsions robbed the appellant of that remedy or opportunity.

Mr. Lwere for the respondent does not agree with that line of argument. He says rightly, in my view, that the trial judge could not rely on Order 9 rule 17 (1) (a) CPR alone without involving Order 15 rule 3 thereof 40

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because the former provisions deal with the failure of a defendant to appear at the first hearing of the suit. In his view, those provisions contemplate the hearing of the suit on the day fixed in the summons before settlement of issues, whereas the latter provisions of Order 15 rule 3 thereof contemplate the hearing of the suit on some other date to which the hearing may have been adjourned.

In the instant case, Mr. Lwere contended rightly, in my view, that the appellant had already appeared in answer to the summons but failed to appear at the adjournment hearing of her defence case scheduled for $7^th$ 10 November, 2000. According to counsel, the effect of Order 15(3) CPR is to adopt the procedure under Order 9 rule 17 (1) (a) CPR. He relied on the learned authors, namely:- Mulla, Code of Civil Procedure and Chitaley & **Rao Code of Civil Procedure** at pages 556 and 1576 respectively for that proposal.

Appellant's counsel had further submitted that the appellant could not have a way of explaining her reasons for not reaching court at the time the adverse steps were taken against her. I find this argument untenable. The above named learned authors give the remedies available to a defendant to whom an ex-parte order or decree has been passed, as it was in the present case. These include among others the right to apply to set aside the ex-parte decree or order or to appeal or to apply for review. I would, therefore, agree with Mr. Lwere that the appellant was enjoined to apply for any of those remedies and she chose to appeal with which I have no problem.

The argument that the appellant was denied of her constitutional right to be afforded a fair trial is unsustainable because she was the cause of her own fate when she failed together with her advocate to appear on 7^th November, 2000 when her defence case was called for hearing. I cannot fault the learned trial judge on this matter. The only inference from the conduct of the appellant and her counsel was that they had lost interest in the case. They were given notice of the last adjournment to 7^th November, 2000 but they did not attend court and no reason was given for their nonappearance. In the premises, they excluded themselves from the case and as such no miscarriage of justice has been occasioned to the appellant.

In the circumstances of this case, this is an old family dispute and both parties were given opportunities to settle it out of court to avoid discord and a rift among the family members but all in vain. It would, therefore, be in 40 the best interest of the family to involve the Administration General in the administration of the estate which the learned trial judge has already rightly done.

In the result, I find no merit in all the grounds of this appeal. I would, therefore, dismiss the appeal with costs to the respondent in this court and in the court below. I so order.

Dated Kampala this $\frac{19th}{19th}$ day of $\frac{19th}{19th}$ 2003.

Hon. Justice S. G. Engwau

**Justice of Appeal.**

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. $10$ HON. JUSTICE S. G. ENGWAU, JA, HON. JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL NO. 16 OF 2002.

#### BETWEEN

# **JOLLY TUGUMISIRIZE:::::::::::::::::::::::::::::::::::**

#### AND

### ZONABIA ZINABWEINE BEINAMARYO::::::::::::: RESPONDENT

(Appeal against the Judgement and Orders of the High Court of Uganda at Kampala (Bossa. J) dated 20^th August, 2001 in HCCS No. 766of 195).

$20$

#### JUDGEMENT OF L. E. M. MUKASA-KIKONYOGO, DCJ

I have had the benefit of reading in draft the judgement prepared by my brother S. G. Engwau, J. A and I agree with him that, there is no merit in the appeal. It should be dismissed with the orders proposed by him.

I do not have much to add but to make a few comments by way of emphasis. The criticism in the first ground of Appeal that the learned trial judge based her decision on oral information from the counsel of the respondent from the bar is not justified.

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The learned tria-l judge did not base her decision on that information but on the conduct of the appellant and her counsel'

OnTllll2OOO in her short ruling on the application by counsel for the appellant for an adjournment, the learned trial judge stated the reasons for refusal of the adjournment as follows:-

> "The defendant hrrs been gitten numerotus chances to pursue her defence. At o,ll tluse occasions she ha.s tailed to Pursue it. Todag she has faited to fitrn up completclg neither her, her counsel appeared, (stc) It is euident that theg dre no longer lnterested in the cdse particularlg since the case was adjourned in the presence otthe defendant's daughter Tvkannuhqbutq Caroline. Therefore in accordqnce wlth O75 r3 qnd O 17 r (1) (a) I order the defence closed'.

Similarly in her judgement she again stated that she closed the defence because the appellant had failed to conduct her case despite the numerous chances given to her. I agree with the learned trial judge that on the evidence on record the only inference to draw from the conduct of appellant and her counsel is that they had lost interest in the case.

On the complaint under ground 2 of ttre appeal, in my view the trial judge did not misdirect herself. She had a discretion to order service or proceed with the hearing. It is not alleged that she did not exercise her discretion judiciously. She was satisfied that the appellant and her counsel had notice of the hearing on that day 30

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but they opted not to attend. No reason was given for the non attendance either.

On perusal of all the evidence on record she was justified to enter judgement for the respondent. She rightly ordered the l0 Administrator General and the respondent to jointly apply for letters of administration in respect of the deceased,s estate considering the strained relationship, riva1ry and conflicts in the family. It would not be prudent to grant letters of administration to the Appellant in those circumstances.

The learned trial judge properly directed herself and on the evidence before)hq came to the right decision. Since Hon. Justice Kitumba, J. A holds a similar view the appeal by a unanimous decision of this court is dismissed with costs in this court, High Court and with the orders made by the lower court

DATED at Kampala this.... day of).e.\*,&!u-roo.. t9 &

L. E. M. \*"#;{-\$Lonyogo Deputy Chief Justice.

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### THE REPUBLIC OF UGANDA

I

o

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. N. B. KITUMBA, JA

# CIVIL APPEAL NO. I6 OF 2OO2

#### BETWEEN

### JOLLY TUGUMISIRIZE APPELLANT

#### AND

### ZONABIA ZINABWEINE BEINAMARYO RESPONDENT

(Appeal against the judgment and Orders of the High Court of Ugonda at Kampala (Bossa. J) rtated 2dh Augusl, 2001 in HCCS No. 766 of 1995).

# JUDGMENT OF C. N. B. KITUMBA, JA

I have had the benefit of reading the judgment of Engwau, JA in draft. I agree with it.

Dated at Kampala this t?k day of L- ^C 2003.

c:ftf. fefiuluro JUSTICE OF APPEAL