Euruga v Omunyokol (Miscellaneous Application 53 of 1999) [1999] UGHC 25 (16 December 1999)

## **APPLICANT VRS OMUNYOKOL JOHN PETER RESPONDENT THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE MISC. APPLICATION NO 53 OF 1999 [ORIGINAL TORORO MISC. APPLICATION NO MT 2J [FROM HCCA NO MT 5/1992] EURUGA WILLIAM**

## **THE HONOURABLE MR. JUSTICE D. N. MANIRAGUHA**

## RULING

This is an application under O. 39 r. 16 C. P. R for an order that HCCA NO MT <sup>5</sup> of 1991 be reinstated for hearing.

The brief history of this application is that the suit was causelisted for hearing at Tororo before Justice C. M. Kato (as he then wasO on 7th June, 1995. On that day the appellant did not attend in person and the explanation is that he was sick on that day.

The appeal was called during the morning session in the presence of the respondent and mr. majanga, learned counsel for the appellant whereof the same was adjourned to 2:30 p.m. that day.

Later at 2:30 p.m. the file was called in the presence of the respondent but counsel was not in attendance so the respondent replied that the same be dismissed and it was dully dismissed,. Learned counsel came to court, according to him at 2:40 p.m. only to find that the case had been dismissed, hence the lodging ofthis application on 12lh July, 1995.

As the High Court has not sat at tororo for civil work since then, the matter had to be transferred to Mbale for due process, hence this ruling.

The only ground relied upon in the Notice of Motion is that "Counsel for the applicant was delayed and misled by a defective chamber clock which was telling the wrong time when HCCA NO MT 5 OF 1991 was called for hearing."

Thus it is sought that "it would be in the interest ofjustice to re-instate the appeal and determine it on merit."

The respondent in response to this application has reiterated the happenings of that day which appear from the court record that on 7.6.1995 learned counsel had not yet supplied him with the Memorandum of appeal so court had to compel counsel to supply the same hence the afternoon adjournment being taken. That on return it took 30 minutes of waiting for counsel before the respondent asked for the dismissal of the appeal which was duly done under O. 39 r. 14 (2) ofthe civil procedure rules.

He has asked this court thus to dismiss this application.

Looking at O. 39 r. 14 (I) C. P. R under which the dismissal was made, O. 39 r. 16 C. P. R provides that" when an appeal is dismissed under rule 14 or rule 15 of this order, the appellant may apply to the High Court for the readmission of the appeal where it is proved that he was prevented by any

sufficient cause from appearing when the appeal was called on for hearing."

Thus the issue to decide now is whether or not sufficient cause does exist in these circumstances.

Speaking for the applicant paragraphs 6 and 7 of the affidavit sworn by counsel on 8th june, 1995 it says that the applicant was indisposed on that day so he did not come to attend court that 7th day ofJune, 1995 but sent his son bubolo Johnson to communicate this to the advocate who duly attended court in the morning session. Although the respondent here said Bwaga william was not sick that day his averment is not on oath and one would hesitate to take his word for the truth when his interest would better be served by the failure of his application, hence enough motive for his allegation.

In any case the applicant need not have attended in person as he would have had nothing to say since the matter was on appeal and the memorandum of appeal said all leaving it to his advocate to articulate the said grievances before court. His appearance was not encessary in accordance with the provisions of 0. 3 r. <sup>1</sup> C. P. R which provides that "Any application to or appearance or act in any court required or authorised by the law to be made or done by a party in such court may, except where otherwise expressly provided by law for the time being in force, be made or done by the party in person, or by his recognised agent, or by an advocate duly appointed to act onhis behalf.

Provided that any such appearance shall, if the court so directs, be made by the party in person."

In the present case court had not so directed that the appellant appear sin person. It would have been sufficient for the disposal of the appeal that afternoon had learned counsel kept time as he had been accepted earlier on. So the presence of the appellant was dispensable and moroever there is no concrete proofthat he was not indisposed that day, sickness being sufficient cause for his non appearance that day.

constitute sufficient cause. Thus the next question is whether the mistake or negligence of the agent advocate which he admits but blames a faulty clock in his chambers can

Under O. 39 r. 16 ofthe Civil Procedure Rules.

I am of the view that the interest in the suit (res) is vested in the applicant personally (in seO and not the advocate whose sole duty should be to ensure that a case is conducted properly before court and he does his duty to the best of his ability. Though he is liable to being penalised for any acts of negligence on his part by way of damages, these would not restore the subject matter so lost ifthe party to the suit is still interested in the matter he should in normal circumstances be allowed to pursue his rights to the logical end.

I am mindful of the case of W Wanendeya vs Norconsult . As [1987] HCB 88 Where G. Wanendeya's advocate withdrew from the case and later the

case was re-instated after dismissal for want of prosecution on the ground that the act of the advocate was not the act of the party to the suit and the withdraw would not act as a bar to further proceedings by the party who was still intereste din pursuing his matters to the end ceteris paribus (other conditions remaining equal). Although the circumstances were different I am of the opinion still that this approach is applicable where by an advocate's negligence a party loses temporarily his right to a full hearing of his case.

Thus here I turn back to the question of whether or not the applicant should have his appeal re-admitted under 0. 36 r. 16 ofthe Civil procedure rules.

The words "any sufficient cause" appear in Order 9 r. 24 of the Civil procedure Rules in the provision which is similar to O. 39 r. 16 ofthe Civil Procedure Rules and have bene subject of consideration in various cases to which I now turn for guidance.

In the case of Shabir Din v Ram Parkash Anand (19550 22 EACA 48 WHERE THE THEN COURT OF APPEAL FOR Eastern Africa considered the provisions of O. IX rules 19,20 and 24 at the Kenya Civil procedure Rules the question was whether the non appearance of the plaintiff through the negligence of the advocate constituted " sufficient cause" warranting the setting aside ofthe dismissal ofthe suit. It was held that "The mistake or misunderstanding of the plaintiffs legal advisers, even though negligent, may be accepted as a proper ground for granting relief under Order IX rule 20 aforesaid, the discretion of the court being perfectly free and the words sufficient cause' not being comparable or synonymous

with "special grounds." Whether the grounds for granting relief will be accepted, depends on the facts ofthe particular case, it being neither possible nor desirable to indicate in detail the manner in which the discretion should be exercised." The reliefwas granted.

I am of course midnful that such a discrtion must in all cases be exercised judiciously, and that wherever possible each case should be heard on its merits, for a case heard or dismissed exparte is not in effect heard on its merits.

reason. In the case ofEssaji and others vs Solanki [1968] E. A 218 due to an error by an advocate the decree appealed against had not been extracted nor filed before the appeal was lodged, it was held that the error ofthe advocate was not necessarily a bar to obtaining extension of time. It was thus sufficient

Lastly there is the case of the Trustees of West Ankole diocese v A Rutamureka Misc. Application No of 1995 (Arising from civil suit No. 9 of 1982). Before mr. Justice V. F Musoke -Kibuuka in which the question of 'sufficient cause" arose and a good number of decisions considered.

He had this today:-"The term sufficient cause has been define dby this court as pointing or relating to reasons which may have prevented a party to a suit from taking the necessary step in the case at the right time."

In the case before me it is the failure to attend in person on that day and the late coming ofthe advocate.

Further in his ruling he quoted the case of Yosefu Kashongorize v China sichuan Corporation HCCS NO 22/94 before Karokora J as he thenw as. There the case had proceeded ex parte due to the absence of an advocate and his client. Ins etting aside the exparte decree, Karokora J observed that " I think the modern trend has been that a person who has fully instructed an advocate to represent him should not be penalised for a wrong of his lawyer where the client was not a party to the blunder, mistake omission or negligence of an advocate in conducting the case. This should not be visited on to the client when the client is innocent ofthe blunder, mistake or negligence."

I have earlier considered that approach and the cases relied upon leading to that conclusion.

Looking at the circumstances of this application, the applicant had fully instructed his advocate to act on his behalf and the matter being on appeal did not need the personal attendance of the applicant. Be that as it may when he realised he could not attend due to sickness he disptached his son J Busolo to inform his advocate. Learned counsel did dully attend the morning session but again due to his negligence he had not served the respondent with the copy of the memorandum of appeal. This led to the matter not being heard in the morning. The applicant was not party to this blunder or omission by counsel.

In the afternoon the advocate had again, due to his faulty clock, to keep court waiting for 30 minutes as put by the respondent leading to the dismissal of the appeal. His client was not to blame for counsel's late

coming so he should not be penalised for the cummulative effect of these acts of negligence by his counsel.

From the scanty record available this appears to have been the first time the case had been causelisted only to be flouted by counsel's failures to act deligently. He is solely to blame for the applicant's predicament.

Immediately on 12th July, 1995 the applicant had taken steps to have the matter re-instated showing his vigilance. It is in all fairness, and in the interests ofjustice that he should not be denied his right of having his case decided on a full hearing rather than visit on him the errors made by his counsel.

This is a case falling in the categories of the cases whereby a partyto a suit should not be made to suffer for the errors made by counsel.

The best one can do would be to penalise the advocate by making him bear the costs incurred as a result of his actions or omissions so as to ease the burden ofthe applicant.

Considering all the above circumstances, I have found sufficient cause to readmit the appeal. The application succeeds and the appeal is re-admitted.

As to costs, the respondent is in no way to blame for what has led to this application so though it is successful he should not be over burdened innocently. He is awarded the costs in this application in any event.

> D. N. **Maniraguha Judge 16/12/1999**