East African Packaging Solutions Limited v Fresh Cuts Uganda Limited (Miscellaneous Application 140 of 2023) [2024] UGHC 921 (30 September 2024)

# THE REPBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 140 OF 2023** (ARISING FROM CIVIL SUIT NO. 83 OF 2021)

## EAST AFRICAN PACKAGING SOLUTIONS LIMITED :::::::: APPLICANT **VERSUS**

FRESH CUTS UGANDA LIMITED ::::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

1. This is an application for setting aside the orders of dismissal of Civil Suit No. 83 of 2021. It was brought by Notice of Motion under the provisions of section 98 of the Civil Procedure Act, Cap. 71, Order 9 rule 23 and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules, S. I. 71-1. The Applicant seeks for orders that the order dismissing High Court Civil Suit No. 83 of 2021, be set aside; and it be reinstated and fixed for hearing on its merits.

$2.$ The grounds of the application are contained in the Notice of Motion and supported in detail by the affidavit of Mr. Rwabugaire Dan dated 5<sup>th</sup> September, 2023. The grounds are as follows that:

(a) the Applicant filed Civil Suit No. 83 of 2021 against the Respondent for recovery of UGX. 60,020,664/- (Sixty Million Twenty Thousand Sixty-Four) among others arising from

breach and failure to pay for goods in form of packaging materials delivered to the Respondent/Defendant and costs:

- (b) the above suit was coming for mention on the $4<sup>th</sup>$ day of September. 2023 at 10:00 a.m. before the learned Hon. Lady Justice Nakachwa Florence in the High Court of Uganda at Mukono but unfortunately the deponent was down with a flu/cold: - (c) the deponent is counsel for the Plaintiff/Applicant in personal conduct of Civil Suit No. 83 of 2021; - (d) the deponent instructed Counsel Musubo Ayub to hold brief for him in the aforesaid matter that was coming for mention on 4<sup>th</sup> day of September, 2023 at 10:00 a.m. and he accepted the instructions to appear on the deponent's behalf and the deponent also sent his law clerk Mr. Abur William with the case file; - (e) when Civil Suit No. 83 of 2021 came for hearing, Counsel Musubo Ayub did not appear and upon inquiring from him he stated that he took up the deponent's instructions to hold brief for him in Civil Suit No. 83 of 2021, yet he also had to appear on the same day in HCMA No. 0056/2023 in the case of Mugulusi Richard and Anor v. Musisi Mbusi and 2 Others, before the Assistant Registrar His Worship Mubiru Nassif Umar and that he thought he could appear in both matters but

failed to make it and found when Civil Suit No. 83 of 2021 had been dismissed for non-appearance:

- (f) the deponent only got to know later on that day of $4^{th}$ September, 2023 from Counsel Musubo Ayub that the case had been dismissed for his non-appearance: - (g) the Applicant/Plaintiff is totally committed and interested in pursuing Civil Suit No. 83 of 2021 and out of vigilance has already filed its trial bundles and witness statements in the case and served the same on the Respondents way back on 19<sup>th</sup> January, 2023 and the Respondents/Defendants had not filed and or served the Applicant/Plaintiff with its trial bundle and witness statements: - (h) it is in the interest of justice that the order dismissing High Court Civil Suit No. 83 of 2021, is set aside and the suit is fixed for hearing on it's merits; and - (i) this application is brought in good faith and without inordinate delay and the Deponent takes full responsibility for the nonappearance since he is in personal conduct of the suit.

The Respondent opposed the application through an affidavit in $\mathfrak{Z}$ reply dated $17$ <sup>th</sup> October, 2023, deponed by the Respondent's Managing Director Mr. Tindyebwa Amos. The grounds for opposing the application are that:

- (a) the deponent has not provided any categorical documentary medical evidence to prove that he was prevented from appearing in court on the 4<sup>th</sup> day of September, 2023 due to flu or a cold; - (b) the deponent has not provided any evidence to demonstrate any condition that prevented a representative from the Applicant company from appearing in court when the matter was scheduled which clearly shows that the Applicant is not interested in prosecuting the case; - (c) the deponent has not provided any written evidence to demonstrate to this court that indeed Counsel Musubo Ayub is an advocate and that he was instructed to appear on behalf of the deponent in court on the 4<sup>th</sup> day of September, 2023, as there is no notice of instructions that was filed on court record: - (d) the deponent has not provided any evidence to demonstrate to this court that indeed counsel Musubo Ayub was appearing before the Assistant Deputy Registrar His Worship Mubiru Nassif in HCMA No. 0056/2023 vide Mugulusi Richard & Anor v. Musisi Mbusi & 2 Others when Civil Suit No. 83 of 2021 came up before court for hearing; - (e) the Applicant has never taken out summons for direction in Civil Suit No. 83 of 2021 and therefore there were no steps taken by the Applicant to prosecute its case; and

(f) this application is brought in bad faith as the same is characterized by falsehoods.

$\overline{4}$ On the 31<sup>st</sup> January, 2024, when the application came up for hearing, Counsel Dan Rwabugaire from M/s Prism Advocates appeared for the Applicant. Counsel Samuel Semwogerere from M/s SK Sebowa & Co. Advocates represented the Respondent. Both counsel filed the parties' respective written submissions and the Applicants' counsel filed submissions in rejoinder. The Respondent's counsel raised a preliminary objection on the capacity of Mr. Rwabugaire Dan to depone the affidavit in support of the instant application. I will consider this preliminary objection as one of the issues for resolution.

### **Submissions.**

The Applicant's counsel reiterated the averments in the supporting $5.$ affidavit to the application and cited a number of cases in support of this application which include the case of *Edirisa Kanonya and* another v. Asuman Nsubuga & Others, Miscellaneous Application No. 373 of 2022 and Shabin Din v. Ram Parkesh Anand (1955) 22 EACA at 48.

The Applicant's counsel added that a mistake, negligence, $6.$ oversight or error on the part of counsel should not be visited on the litigant. That such a mistake constitutes just cause entitling the trial court to use its discretion so that the matter is considered on its merits. That the present case is one with error on the part of counsel in form

$\overline{5}$

of being down with flu. That the Applicant honestly intended to attend the mention of Civil Suit No. 83 of 2021 and did his best to do so by engaging an advocate, that is Counsel Musubo Ayub as stated in its supporting affidavit. Counsel prayed that the dismissal of Civil Suit No. 83 of 2021 be set aside and the suit reinstated and fixed for hearing on its merits.

$\mathbf{7}.$ In opposition, the Respondent's counsel raised a preliminary objection to the effect that Mr. Rwabugaire Dan had no *locus standi* to depone the affidavit in support of the application at hand. The Respondent's counsel submitted that the Applicant did not swear any affidavit in support of the application rather it is counsel from the law firm of the Advocates for the Applicant that swore the affidavit in support of the application while purporting to be familiar with the facts of the case. The deponent did not disclose that he was authorized by the Applicant's company to depone the said affidavit on its behalf or to do so within the meaning of Order 3 rule 1 of the Civil Procedure Rules SI 71-1. That the deponent is not the firm and therefore is not an authorized agent or duly appointed advocate of the Applicant company and does not therefore have authority to swear an affidavit on behalf of the Applicant since affidavits are confined to such facts as the deponent is able of his or her own knowledge to prove.

Furthermore, the Respondent's counsel submitted that the 8. deponent has neither disclosed his means of knowledge or the grounds of his belief in the matters nor did he distinguish between matters stated on information and belief and matters to which he swore

$6$

from his own knowledge. To support his preliminary objection, counsel cited the case of **Banco Arabe Espanol v. Bank of Uganda, S. C. C. A** No. 8/1998

$9.$ Counsel contended that the affidavit deponed by Rwabugaire Dan is fatally defective and cannot be accepted in support of the application which therefore leaves the Notice of Motion un-supported by any affidavit hence making it defective and it ought to be struck off the record of court and the case be dismissed with costs.

10. The Respondent's counsel also submitted that the Applicant company is not aggrieved by the dismissal of High Court Civil Suit No. 83 of 2021. That the Applicant's written submissions do not demonstrate under any averment that the Applicant company was aggrieved by the dismissal of Civil Suit No. 83 of 2021 which clearly shows that the Applicant company is not interested in the case which is even demonstrated by the fact that it did not file any affidavit deponed by a representative of the Applicant company demonstrating the need to reinstate Civil Suit No. 83 of 2021.

11. Counsel further contended that no evidence has been provided by the Applicant company to prove sufficient cause for its inability to appear in court when the matter was called for hearing on the 4<sup>th</sup> day of September, 2023. Counsel referred to the case of Bishop Jacinto v. The Uganda Catholic Lawyers Society & 2 Others, HCMA No. 696 of 2018. The Applicant and its counsel do not deny knowledge of the said hearing date.

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12. The Respondent's counsel averred that the case of **Edirisa** Kanonya & Anor v. Asuman Nsubuga & Others, (supra) referred to by the Applicant's counsel has very different facts from the facts of the instant case. The aforementioned case had an element of error on the part of the counsel in form of mistaking the actual hearing date for a different date which caused the non-attendance of the advocates and the litigants. In the facts at hand, no reason is given for the nonattendance of the Applicant/Plaintiff or sufficient evidence being provided to show proof of the reasons as to why the counsel or the litigant did not appear in court when the matter came up for hearing.

13. Furthermore, the Respondent's counsel submitted that the Applicant's submission on the issue of error, mistake or negligence on part of the counsel for the Applicant is a departure from pleadings as none of the averments were ever pleaded by the Applicant as a ground to prove sufficient cause. That this particular submission is untenable in the current situation because it was never pleaded and would be evidence from the Bar which is against the law.

14. Counsel prayed that this honourable court takes cognizance of the fact that no paragraph in the supporting affidavit gives a reason as to why the Plaintiff did not appear in court when the suit came up for hearing on the 4<sup>th</sup> day of September, 2023, despite being aware of the said hearing date. Counsel further prayed that court makes a finding that the Applicant company has not demonstrated that they were aggrieved by the dismissal of High Court Civil Suit No. 83 of 2021.

15. The Applicant's counsel submitted in rejoinder that what is paramount in an application like this is whether there is sufficient cause to warrant reinstatement of Civil Suit No. 83 of 2021. That the Applicant should demonstrate to court that there are issues or questions of law and fact in dispute which ought to be tried.

16. That the deponent of the supporting affidavit to the application has locus standi to depone the said affidavit. That the deponent averred that he was down with flu or a cold and that he instructed counsel Musubo Ayub to hold his brief who did not appear because he had to appear for another case on the same day. (counsel cited the case of Busingye & Anor v. Gianluigi & Anor, HCMA No. 203 of 2013).

17. That the Applicant Company has suffered financial loss and great inconveniences due to the non-payment of the invoices by the Respondent Company. That reinstatement of Civil Suit No. 83 of 2021 is in the interest of justice to the Applicant for the recovery of the outstanding amount demanded.

18. Additionally, it was rejoined for the Applicant that the present case is one with error on the part of counsel in form of being down with flu/cold and instructing counsel Musubo Ayub to hold his brief who was not able to do so because he thought he would make it but also had another court case on the same day. That there is sufficient cause to warrant reinstatement of High Court Civil Suit No. 83 of 2021. Counsel prayed for the Applicant that the dismissal of Civil Suit No. 83 of 2021, be set aside, the suit reinstated and fixed for hearing on its merits.

#### **Issues**

1. Whether Mr. Rwabugaire Dan had locus standi to swear affidavit in support of this application.

2. Whether there is sufficient cause shown by the Applicant to warrant setting aside the orders of dismissal of Civil Suit No. 83 of 2021.

## Issue 1.

Whether Mr. Rwabugaire Dan had locus standi to swear affidavit in support of this application

# **Court's consideration**

19. I have examined the affidavit in question deponed by the Applicant's advocate Mr. Rwabugaire Dan. It is trite law that there is nothing that stops a party from gathering as much evidence as he or she feels necessary to support his or her case. Such evidence includes swearing an affidavit by any person whom a party feels can support his or her case and such a person may include an advocate. The only difference lies in certain representative actions where a particular procedure must be adopted or strictly followed.

20. In the case of **Mbarara Municipal Council v. Jetha Brothers** Ltd, Supreme Court Miscellaneous Application No. 10 of 2021. Justice Ezekiel Muhanguzi observed at page 10 of his ruling thus:

"In my view, 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/her knowledge."

21. In the instant case, the deponent of the affidavit in question clearly stated in his affidavit that he was an advocate for the Applicant in Civil Suit No. 83 of 2021. Indeed, this court's record in Civil Suit No. 83 of 2021 shows that on 20<sup>th</sup> April, 2023, when the suit came up for mention, Counsel Eddy Sekonde held brief for Counsel Rwabugaire Dan who had lost a relative and had gone for burial in Western Uganda.

22. Therefore, being the Applicant's counsel well knowledgeable with the facts deponed on, Mr. Rwabugaire rightly deponed the affidavit in support of the instant application and there is nothing that bars him from swearing such an affidavit which facts therein are well within his knowledge. Therefore, I find no merits in this preliminary objection and hereby over rule it.

### Issue 2

Whether there is sufficient cause shown by the Applicant to warrant setting aside the orders of dismissal of Civil Suit No. 83 of 2021.

$11$

## **Court's consideration**

23. It is an established legal principle that in a suit where the Defendant denies the claim against him or her, non-appearance of the Plaintiff or his or her legal representative in court on the hearing date without sufficient reason leads to dismissal of the suit. Order 9 rule 22 of the Civil Procedure Rules, S. I 282-1 provides thus:

"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."

24. The word "shall" which appears in the above provision is construed as mandatory. In the instant case, Civil Suit No. 83 of 2021 was dismissed for non-appearance of the Applicant's representative or advocate. Once a suit is dismissed under the above rule, the dismissal order can only be set aside if the plaintiff gives sufficient reason for his or her previous non-appearance when the case was called on for hearing and the court must be satisfied with the reason given.

25. The remedy for setting aside a dismissal order is provided for under Order 9 rule 23 of the Civil Procedure Rules which provides as follows:

"(1) Where a suit is wholly or partly dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was sufficient cause for nonappearance 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.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

26. The reasons given by the Applicant for his or her non-appearance or for non-appearance of his or her legal representative assists the court to determine whether to allow re-instatement of a dismissed suit or not. While exercising such a discretion, the court must always ensure that no injustice is occasioned to either party to the suit.

Sufficient cause must relate to the inability of the applicant or his $27.$ or her lawyers to appear for the hearing as duly notified. The Kenvan case of Gideon Mosa Onchwati v. Kenya Oil Co. Ltd & Anor [2017] KLR 650, described what constitutes sufficient cause as follows:

> "It is difficult to attempt to define the meaning of the words *'sufficient cause'. It is generally accepted however, that the* words should receive a liberal construction in order to


advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the Appellant." The court further observed that:

> "Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient around to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

The question of whether an oversight, mistake, negligence or 28 error on the part of counsel should be visited on the party represented by the said counsel or whether it constitutes sufficient reason or cause justifying discretionary remedies from courts has been discussed by different numerous authorities which dealt with courts in

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### circumstances.

It is trite law that parties are not visited with punishment arising 29. from the mistake or inadvertence or negligence of counsel when the mistake, inadvertence or negligence is in respect to procedural matters in which case, the court would lean towards accommodating the parties' interests without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on the merits. The court must however be satisfied that the allegation of inadvertence of counsel is true and genuine.

In the case of Banco Arabe Espanol v. Bank of Uganda, SCCA $30.$ No. 8 of 1998, it was held that;

> "A mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. Such mistake, or as the case may be, constitutes just cause entitling the trial judge to use his discretion so that the matter is considered on its merits."

Similarly, in the case of Shabin Din v. Ram Parkash Anand $31.$ (1955) 22 EACA at 48, it was held that:

> "The mistake or misunderstanding of the Plaintiff's legal advisor, even though negligent, maybe accepted as a proper ground for granting relief under the equivalent of Order 19 rule 20, of the Civil Procedure Rules, the discretion of the court being perfectly free and the words "sufficient cause" not being comparable or synonymous


### with "special ground."

$32.$ The case of Florence Nabatanzi v. Naome Binsobedde, Supreme Court Civil Application No. 6 of 1987, laid down the guiding principles to be followed by courts when faced with situations like the instant case. These principles are summarized as follows:

- (a) First and foremost, the application must show sufficient reason which relates to the inability or failure to take some particular step within the prescribed time. The general requirement not withstanding each case must be decided on facts: - (b) The administration of justice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights; - (c) Whilst mistakes of counsel sometimes may amount to an error of judgment but not inordinate delay negligence to observe or ascertain plain requirements of the law; - (d) Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirement of the law: - (e) A vigilant Applicant should not be penalized for the fault of his counsel on whose actions he has no control." - 33. In the instant application, I agree with the Respondent's

submission that no evidence whatsoever has been adduced by the Applicant or attached to the supporting affidavit to prove that the Applicant's counsel was indeed prevented from appearing in court on 4<sup>th</sup> September, 2023, due to the ailment he was suffering from.

34. There is also no evidence or affidavit sworn by the said Musubo Ayub to confirm that he was indeed instructed by the Applicant's counsel to hold brief for him but he had another engagement before the Assistant Registrar His Worship Mubiru in HCMA No. 0056/2023 -Mugulusi Richard and Anor v. Musisi Mbusi and 2 Others, at the same time when Civil Suit No. 83 of 2021 was called for hearing by this honourable court. The court clerk who is alleged to have been sent to deliver the file to Counsel Ayub did not file any affidavit to support this application. Even if this court were to believe the Applicant's claim that its advocate was sick and was unable to appear in court on the date the case was called, there was no explanation given by the Applicant why its representative was not present in court on the said date.

35. This court has noted the laxity of the Applicant in pursuing its case. Even after engaging the legal services of an advocate, a litigant should always bear in mind that his or her case does not become the advocate's case. Litigants are obliged to pursue their cases and appear in court. In the instant case, I hold that the Applicant has not shown vigilance in prosecuting its case. Had the Applicant's representative attended court and personally informed court of the indisposition of its advocate, Civil Suit No. 83 of 2021 would not have been dismissed for non-appearance of the plaintiff. I find that no

sufficient cause has been shown by the Applicant to warrant setting aside the dismissal of Civil Suit No. 83 of 2021.

36. Pursuant to the foregoing analysis, I find no merit in this application and hereby dismiss it with costs to the Respondent payable by the Applicant. I so rule and order accordingly. This ruling is delivered this . 30 day of . Sept. 2024 by


In the presence of:

- (1) Counsel Eddy Ssekonde holding brief for Counsel Rwabugaire Dan from *M/s* Prism Advocates, for the Applicant; - (2) Counsel Samuel Ssemwogerere from M/s SK Sebowa & Co. Advocates, for the Respondent; - (3) *Ms. Pauline Nakavuma, the Court Clerk.*