[2023] UGCommC 7

## ⁵ THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OI UGANDA AT KAMPALA

### (coMMERCTAL DTVTSTON)

# MISCELTANEOUS APPLICATION No. 723 Ot 2021

## (ARISING FROM Clvlt APPEAL No.025 OF 2019)

UNEED GLOBAT GROUP LTD APPLICANT

#### VERSUS

### KAMPATA PARKING INDUSTRY SECURITY SERVICES I. TD RESPONDENT

#### 15 BEFORE: HON. LADY JUSTI E SUSAN ABINYO

#### RULING

lnlroduction

This opplicotion wos brought by Nolice of Molion under the provisions of section 98 of the Civil Procedure Act Cop. 71, section 33 of the Judicoture Act, Cop 13, Order 43 Rule 16, ond Order 52 Rules I & 3 of Civil Procedure Rules Sl 7l-1, where

ihe Appliconi seeks for orders lhot:

- ^I. The Order dismissing Civil Appeol No. 25 of 2019 be set oside. - 2. Thot Civil Appeol No. 25 of 2019, be reodmitted ond fixed for heoring. - 3. Cosls of this opplicotion be provided for. - zs Focts

This Applicotion is supported by the offidovit of Nebyebyoono Doris Koitesi on Advocote working with M/S Nongwolo, Resido & Co. Advocotes the Appliconl's Lowyers, ond possessed wilh oulhorily io sweor this offidovit on beholf of the Applicont in porogrophs l-14, in which the grounds ore summorized os follows: -

- That on the 30^th day of May, 2019, the Applicant being aggrieved filed Civil $\mathsf{S}$ i. Appeal No. 25 of 2019 in this Honorable Court against the Judgment and Decree of the Chief Magistrates Court of Nakawa in Civil Suit No. 76 of 2015, delivered on 15^th March 2019 by Her Worship Angura Sheila Fiona in favor of the Respondent. - That the matter first came up for hearing on 20^th January, 2021 and was $10$ ii. adjourned to 11^th May, 2021 in the presence of Counsel for the parties herein. That Counsel for the Appellant entered on the Appellant's case file notes, and Counsel's diary that the matter was scheduled to come up for hearing on 11^th May, 2021 at 11:00am. A copy of the case file notes by Counsel for the Appellant, and an extract of the diary was attached and 15 marked Annexture "UN 1." - That Counsel in personal conduct believing that the matter would come iii. up at the time she had recorded, duly informed the Director of the Appellant company to send a representative to the Court on 11^th May, 2021 at 11:00am. A copy of the sms text message forwarded to the Director of the Applicant, and or Appellant Company on 10^th May, 2021 was attached and marked Annexture "UN 2." - That on 11^th May, 2021at 10:30 am, she approached the clerk requesting iv. for the matter to be called out at 11:00am, and was informed that the matter had proceeded at 10:00am in her absence, and was dismissed by Court for want of prosecution at the instance of Counsel for the Respondent. - That upon receiving this information, Counsel realised that she had $\vee$ . inadvertently misheard the time the matter was supposed to come up for hearing, and recorded a wrong time in her diary. - That the Applicant has acted diligently in prosecuting its matter, and would vi. have proceeded, had it not been for the mix up in the time the matter was supposed to come up for hearing. - That this application has been brought without delay, and that it is in the vii. interest of justice that this application be reinstated and fixed for hearing to 35 allow the Applicant the opportunity to prosecute its Appeal.

The Respondent's evidence as stated in the affidavit in reply, affirmed by Kabazaare Mujaasi Jackson the General Manager of the Respondent Company in paragraphs 1-10, is summarized as below:

- That Counsel for the Appellant and Respondent were addressed at the 40 i. same time when Court adjourned the matter to 11^th May, 2021 at 10:00am. - That he is advised by their Lawyers M/S Walusimbi & Co. Advocates that by ii. virtue of their legal training, which advise he verily believes to be true that

this is not a mere technicality but a procedural requirement that a party $\mathsf{S}$ who files a suit before Court must prosecute the suit to its conclusion.

The Applicant filed an affidavit in rejoinder, deposed by Nebyebyoona Doris Kaitesi in paragraphs $1-10$ , in which she reiterates the averments in the affidavit in support of the application, and states under paragraph 6 thereof that the affidavit in reply is argumentative and offends the law.

# Representation

The Applicant was represented by Counsel Kajubi Brian of M/S Nangwala, Rezida Advocates while the Respondent was represented by Counsel Guma Daphine jointly with Counsel Nassonko Bridget of M/S Walusimbi & Co. Advocates. Counsel for the parties herein filed written submissions as directed by the Court.

# **Issues for determination**

Counsel for the Applicant framed the issue for Court's determination, however, this Court deemed it necessary to amend the issues in accordance with Order 15 Rule 5(1) of the Civil Procedure Rules SI71-1as below:

- 1. Whether the application discloses sufficient cause for reinstatement of the 20 appeal? - 2. What remedies are available?

# Decision

Issue No.1: Whether the application discloses sufficient cause for reinstatement of the appeal? 25

I have considered the submissions of Counsel for the parties herein, and the cases cited to find as follows:

Order 43 Rule 16 of the Civil Procedure Rules provides that:

"Where an appeal is dismissed under rule 14 or 15 of this Order, the appellant may apply to the High Court for the readmission of the Appeal; and, where it is proved 30 that he or she was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit." (Emphasis is mine)

From the obove provision of lhe low, it is cleor lhot in on opplicotion of this nolure, lhe Applicont hos to solisfy the Court thot he or she wos prevenled by sufficieni couse from oppeoring when lhe Appeol wos colled on for heoring.

The term "sutficient couse" depends on the circumslonces of eoch cose ond must relote to the inobility or foilure to loke o porticulor step in time. (See lhe cose

ol Florence Nobolonl ys Noorne Zrnsobedde SC Civil Applicolion No. 5 of 1997) cited wilh opprovol in the cose of Moses Eekobye & 4 Others Vs Musoke Sulosio & 2 Others HCMA No. 453 of 2019, relied upon by Counsel for lhe Respondent. 10

From the definition obove, it is my understonding thot the phrose "sufficient couse" is thot reoson(s), which lhe Court moy consider oppropriole in the given circumstonce(s) of the cose before il, where o porty foils to oct within the iime frome prescribed by low; lt is therefore relotive, ond con only be determined on o cose by cose bosis.

ln the instonl cose, the Applicont under porogrophs 3-9 of the offidovit in support of this opplicotion, deponed by its Counsel Nebyebyoono Doris Koitesi, indicoies the circumstonces under which ihis Appeol wos dismissed, in which she sloles thot when lhe motter first come up for heoring on 20th Jonuory,2021 in the presence of Counsel for the porties herein, it wos odjourned 1o I I tt' Moy, 2021 ot I 0:00 om bul Counsel for the Applicont inodverlently recorded in her cose notes, ond diory o wrong time thot is I l:00om on the some dote, ond duly informed the 20

Appellont's representotive to come lo Court on the soid doie. 25

\_t5

I hove looked ol Annexiure morked "UNl " ottoched lo the offidovit in support, which is the Applicont's noles. ond on exlrocl from the Diory of Counsel for the Appliconl, ond find thol Counsel for the Appellont recorded lhe next dole for scheduling io be llrh Moy, 2021 oI I l:00om whereos, Court hod odjourned the Appeol for scheduling on I lth Moy, 2021 oI l0:00om.

Itherefore, find thot this wos on error by Counsel for the Applicont, since the representotive of the Appliconl oppeored ond requested the clerk to coll the motter ot l0:30om on the very doy but wos only informed by the clerk thot the oppeol hod been dismissed ot l0:00om for nonoppeoronce of lhe Appellont.

The proposition of the low decided in o plethoro of coses is thoi o mistoke, negligence, oversight or error on lhe pori of Counsel, should nol be visited on the litigont. (See Nicholos Roussos Vs Gulomhusseln Hobib Vironi & Anofher SCCA No. 35

9 of 1993, relied upon by Counsel for the Applicant, in which the case of Shabin $\mathsf{S}$ Din Vs Ram Parkash Anand (1955) 22 EACA 48, was cited with approval.

In the result, I find that such mistake constitutes a just cause, in which this Court may exercise its inherent powers under section 98 of the Civil Procedure Act, Cap 71 to make orders as may be necessary for the ends of justice to the parties herein.

#### (See Banco Arabe Espanol Vs Bank of Uganda SCCA No. 8 of 1998) 10

Issue No.2: What remedies are available?

This Court having found issue (1) above in the affirmative, further finds that this application has merit.

Accordingly, this application is allowed, and Court makes the following Orders $that: -$

- 1. The Order dismissing Civil Appeal No. 025 of 2019, is hereby set aside. - 2. Civil Appeal No. 025 of 2019, is readmitted and fixed for hearing on 3^rd April, 2023. - 3. Costs of this application shall be in the cause. - Dated, signed and delivered electronically this 11^th day of January, 2023. 20


$25$

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