Byenkya v Mugisa (Miscellaneous Application 30 of 2023) [2024] UGHC 435 (19 April 2024)

Full Case Text

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### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT HOIMA

### MISCELLANEOUS APPLICATION NO. 0030 OF 2023 (Formerly MSD M. A-NO-97 OF 2022)

BYENKYA BEATRICE NYAKAISIKI ::::::::::::::::::: **APPLICANT VERSUS**

ABDUL MALIK MUGISA :::::::::::: **RESPONDENT**

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **Ruling**

- $[1]$ This Application is brought under S.33 of the Judicature Act, S.98 CPA, O.9 r 18 & O.52 rr 1 & 2 CPR for orders that the order dismissing Misc. Application No. 07 of 2019 be set aside and the Application be reinstated. - $[2]$ The grounds for the Application are outlined in the Affidavit in support of the Application deposed by David Bahiga as follows: - That the Applicant filed H. C. Misc. Application No. 07 of $1.$ **2019** seeking for order to review and set aside the Judgment and Decree in C. S. No. 23 of 2017 dated 31st October, 2017 which arose out of a consent between the parties.

- $2.$ That he and Rayner Mugyezi were the Counsel in personal conduct of H. C. Misc. Application No. 07 of 2019 upon the Applicant's instructions. - That when the **H. C. Misc. Application No. 07 of 2019** came $3.$ up for hearing on 26th April, 2022, the parties requested Court to allow them try and resolve the matter through mediation and the Application was fixed for mention on 17th **June, 2022** for the parties to update the Court on the status of mediation and further directions. - That on 17th June, 2022 when H. C. Misc. Application No. 07 $4.$ of 2019 came up for hearing, upon it being called by the Court, neither the Applicant nor her Counsel were present and as a result Court accordingly dismissed the Application for none appearance of the Applicant with costs to the Respondent. - 5. That the Applicant's Counsel was not in Court when the matter was called because he was under the impression that the matter was fixed for 10.30 a.m., a mistake of Counsel that should not be visited on the Applicant. - 6. That this Application has been brought without inordinate delay and therefore, on the basis of the above, there is sufficient reason for the judicious exercise of this Court's discretion to allow the Application. - That in the interests of justice and equity, this Application 7. should be granted so that H. C. Misc. Application No. 07 of 2019 can be heard and determined on its merits.

- In opposition of the Application, the 1st Respondent, Abdul Malik $[3]$ Mugisa deposed as follows: - That the Application and Affidavit in support are irregular, $(a)$ engulfed with falsehoods, is suspect, vexatious, devoid of merit because the deponent in support is barred in law for being a Counsel for the Applicant, he cannot depose an Affidavit in support of the Application on behalf of the Applicant on a contentious matter like this one. - $(b)$ The consent Judgment entered into on the 3rd October, 2017 with the $2^{nd}$ Respondent in his capacity on as a holder of powers of attorney of the deceased and with full authority to enter the said consent is legal. - $(c)$ That there was no sufficient cause for non appearance of the Applicant's 2 Counsel and the Applicant herself on 17th June, 2022 when the file was called at 11.20 a.m. for hearing. - $(d)$ The Applicant has never attended Court despite all requests by the Respondent's Counsel for her attendance of Court for cross examination. - $(e)$ That in the interest of justice, it is just fair and equitable that the Application be dismissed with costs.

# **Counsel legal representation**

The Applicant was represented by Mr. Rayner Mugyezi of Ms. $[4]$ Kampala Associated Advocates, Kampala while the Respondent was represented by Ms. Suzan Zemei of Ms. Zemei Aber Law

Chambers, Masindi. Both Counsel filed their respective submissions for determination of this Application.

## **Background of the Application**

- The Plaintiff/Respondent Abdul Malik Mugisa on 28th April, 2017 $[5]$ instituted Masindi H. C. C. S. No. 23 of 2017 against the Defendants; Noah Kasigwa Byenkya Atwooki and Didymn Byenkya for inter alia, breach of contract, general damages and costs of the suit. - On 13th October, 2017, the parties reached and entered a consent $[6]$ judgment before Albert Rugadya, Atwoki, J. (as he then was) whereby among other things, the Plaintiff/Applicant withdrew the suit and the caveat on the land subject of the suit comprised in Hoima Block 6, Plot 13 land at Kabatendule and the defendants on the other hand, was to pay the Plaintiff Ugx. 640,000,000= after the subdivision and sale of 2 square miles out of the 5 square miles comprised in the above. - On 28th August, 2019 the 1st Defendant, Noah Kagwa Byenkya $[7]$ Atwooki filed an Application vide Masindi High Court M. A. No. 07 of 2019 for orders that the consent Judgment and Decree in C. S. No. 23 of 2017 dated 31st October, 2017 be reviewed and set On $18^{th}$ February, 2020, it was reported that the $1^{st}$ aside. Defendant had passed on/died on or about $14$ th December, 2019. As a result, the widow of the $1st$ Defendant, Byenkya Beatrice Nyakaisiki, on 9th November, 2020, obtained Letters of Administration (vide High Court Family Division A. C. No. 381 of 2020) for the estate of the deceased Noah Kagwa Byenkya and

following the Grant, she was substituted in the Application for her late husband, the deceased 1st Defendant.

- $[8]$ It is however apparent on record that from the time Byenkya Beatrice Nyakisiki as an administrator of the Estate of her late husband (Noah Kasigwa Byenkya Atwooki) was substituted as a party to M. A. No. 07 of 2019, she has never appeared in Court save for her Advocate. On 22nd April, 2022 Counsel for the Applicant having been present in Court during the previous hearing, when the Application was called for hearing on $17th$ June, 2022 and both the Applicant and the Counsel were absent, the Application was dismissed for want of prosecution. - $[9]$ Subsequently, the Applicant, Byenkya Beatrice Nyakisiki filed the present Application seeking orders that the order dismissing M. A. No. 07 of 2019 be set aside and M. A. No. 07 of 2019 be accordingly reinstated, briefly on the following grounds: - $(a)$ There was sufficient cause for non appearance of Counsel on $17th$ **June, 2022** when the suit came up for hearing. - Mistake of Counsel should not be visited on an innocent $(b)$ litigant. - The present Application was brought without inordinate $(c)$ delay. - It is in the interest of justice, equity and fairness that this $(d)$ Application be allowed.

It is an admitted fact that on $17th$ June, 2022 when H. C. MA. No. 07 of 2019 was called by this Court for hearing, neither the

Applicant nor her Counsel were present and H. C. M. A. No. 07 of 2019 was accordingly dismissed.

Counsel for the Applicant submitted that the Affidavit in reply to $[10]$ the Application, sworn by Abdul Malik Mugisa, the Respondent is incurably defective for failure to indicate at the bottom thereof that the contents thereof were interpreted to the deponent in the language he understands and that he in fact understood them or appeared to have understood them. He relied on S.3 of the Illiterate Act and the authority of Kesaala Growers Co-operative Society Vs. Kakoza Jonathan & Anor S. C. C. A. No. 19 of 2010 where it was held that:

> "Section 3 of the Illiterate Protection Act (cap78) of the Laws of Uganda 2000, enjoins any person who writes a document for or at the request or on behalf of an illiterate person to write in the jurat of the said document his/her true and full address"

On the basis of the above, Counsel implored this Court to find the Affidavit in reply struck out for failure to comply with the requirement for verification of documents for illiterates.

- On the other hand, Counsel for the Respondent submitted that the $[11]$ Respondent asked for an interpreter for oral proceedings in Court in absence of his Counsel as of right. That he had been using the Runyakitara and English languages interchangeably. That this did not make him an illiterate as the Applicant intended to portray him. - An illiterate is defined under S.1(b) of the Illiterate Protection $[12]$ Act (IPA) as a person who is unable to read and understand the script or language in which the document is written or printed. As was held in Ngoma-Ngime Vs. E. C. & Anor EPA No. 11 of 2002;

"The Act was intended to protect illiterate persons and the provision is couched in mandatory terms".

In Stanbic Bank (U) Ltd Vs. Ssenyonjo Moses & Anor. C. A. C. A. No. 147 of 2012, Court observed that the Act was meant

"to protect the illiterate from endorsing a document which he or she did not understand and to be bound by a document he or she has not instructed the writing of. It protects the right to decide for one's self whether to endorse a contract or not. It preserves the freedom of an individual to choose what to be bound by. It was meant to overcome the misrepresentation of facts to someone who does not understand the language in which it is written".

$[13]$ In the instant case, in the absence of any complaint by the Respondent himself that he is illiterate and therefore endorsed the Affidavit in reply without understanding its content, the burden is on the Applicant to prove that the Respondent is an illiterate who is unable to read and understand the Affidavit in reply he endorsed and owned as his. I find that the Applicant has not presented any evidence that the Respondent is an illiterate. There was no cross examination of the Respondent done by the Applicant's Counsel to prove that the Respondent is an illiterate. Upon communication with Court, the Respondent did so in English while seeking for an interpreter for oral proceedings in Court for purposes of clarity.

[14] For the above reason, I find that there is no evidence that the Respondent is illiterate. The Respondent's Affidavit in reply is therefore not defective. It is properly before Court. The preliminary objection is therefore found to be without merit. It is accordingly dismissed.

## Whether there is sufficient cause shown by the **Applicant to warrant re-instatement of this Application,** H. C. M. A. No. 30 of 2023 (formerly MSD M. A. No. 97 of $2022)$

- Counsel for the Respondent submitted that the Applicant was $[15]$ under duty to appear and follow up with her case which duty she refused and failed to execute. She did not depose any Affidavit and give reason for non attendance. That by Counsel filing this Application and swearing an Affidavit in support and not on the Applicant's behalf makes this Application bad in law. That an Affidavit sworn by Counsel in a contentious matter was held defective and inadmissible in evidence in Arabe Espanol Vs. B. O. U., S. C. C. A. No. 08 of 1998. - [16] On the other hand, Counsel for the Applicant submitted relying on the authority of Bankone Ltd Vs. Simbamanyo Estates Ltd, Commercial Court M. A. No. 645 of 2020 and 0.9 r 1 CPR that what is required in Affidavits is the knowledge or belief of the deponent, rather than the authorization by party to the litigant. - As regards sufficient cause for non attendance in Court on the $[17]$ date for hearing, Counsel submitted that as per the Affidavit in support of the Application, Counsel David Bahiga came to Court on the due date but found the Application already dismissed. He argued that this was a mistake of Counsel that should not be

visited on the litigant because, Counsel honestly and sincerely intended to be present but when the suit was called for hearing, he was unable to do so and as a result, the Applicant's case suffered prejudice.

$[18]$ Under O.9 r 22 CPR, it is provided that:

> "where the defendant appears, and the plaintiff does not appear, when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part of it, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder"

Under $r$ 23 thereof, the Plaintiff may apply for an order to set aside the dismissal aside, and, if he or she satisfies the Court that there was sufficient cause for non appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

From the above, it is clear that where the defendant appear and $[19]$ the Plaintiff does not appear when the suit is called on for hearing, Court is mandatorily required to make an order dismissing the suit. It is however, within the discretion of this Court to set aside an order for a dismissal of the Plaintiff/Applicant's case where the Court is satisfied that there was sufficient reason for non appearance.

As regards Counsel Bahiga, disposing an Affidavit in support of $[20]$ the Application, it is clear on record that he was not Counsel in personal conduct of the Applicant's matter. However, as Counsel in the firm that represents the Applicant, and being the one who on the due date allegedly came to Court, he is presumed to have had personal knowledge of the facts of the case regarding what took place about the case on the date in question. In Mbarara Municipal Council Vs. Jethan Bros Ltd S. C. M. A. No. 10 of 2013, it was held:

> "Affidavits can be sworn by anyone to prove a set of facts and an advocate is not an exception. An advocate is therefore not prohibited to swear an affidavit where necessary especially on matters that are well within his or her knowledge".

[21] In the premises, I find Counsel David Bahiga, a competent witness in the matter to depone an affidavit in support of the application. As explained in UDB Vs. Kasirye, Byaruhanga & Co. Advocates, S. C. C. A. No. 35 of 1994 and Electro, Maxx (U) Ltd Vs. Ory & Oil (U) Ltd H. C. M. A., the main intention of Regulation 9 of the Advocates (professional conduct) Regulations which prohibits advocates in personal conduct of a matter to appear in the same matter as witnesses is

> "An advocate should not act as Counsel and a witness in the same case".

Since Counsel in personal conduct of the Applicant's matter was Mr. Reyner Mugyezi and not Mr. David Bahiga, then Counsel

David Bahiga's Affidavit is properly before Court. He is a competent witness in the case.

- $[22]$ However, in this case, the Applicant herself did not depose any affidavit and give reasons for her non attendance in Court where she is wanted as a party. It is apparent that she left the management of her Application to her Counsel. I think this is not The Affidavit in support of the Application does not proper. adduce any reason why the Applicant failed to appear in Court on the due date for hearing of her Application. - Whereas Counsel for the Applicant submitted and argued that the $[23]$ Applicant's Application was dismissed because of mistake by Counsel, it is apparent to me as per the record that this is not correct. The date for the hearing of the Application was known to both Counsel their respective clients. and Time for commencement of Court business is 9 O'clock unless otherwise There is no evidence adduced by the Applicant that stated. Counsel David Bahiga appeared at all at Court on the due date. All in all, I don't find that there was any mistake which this Court ought not to visit to the Applicant. The Applicant and his Counsel simply failed to attend Court on the due date for hearing of the Application in question and they have offered no sufficient cause for their conduct. The Applicant has not demonstrated and or shown any satisfactory reasons why she never appeared to prosecute her Application. - $[24]$ It is a settled principle of the law that litigation must come to an In this case, a consent Judgment was entered on 13th end. October, 2017 by the parties. To date, the parties are still

lingering in this Court over the matter that ought to have closed 7 years ago. I find that the ends of justice of this case require that this Application be dismissed.

- For the above reasons, I find that this Application is devoid of any $[25]$ merit and it is accordingly dismissed with costs. - $[26]$ This Ruling disposes of M. A. No. 16 of 2012 which was stayed pending the determination of the present Application. M. A. No. 16 of 2022 is accordingly dismissed with no order as to costs.

Dated at Hoima this $19$ th day of April, 2024.

Byaruhanga Jesse Rugyema **JUDGE**