Heather & Another v Ddungu (Miscellaneous Application 2478 of 2024) [2024] UGHCLD 269 (15 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 2478 OF 2024.** *(ARISING FROM CIVIL SUIT NO. 0442 OF 2022)*

**1. HEATHER CROW GEE :::::::::::::::::::::::::::::::::::::::::::: APPLICANTS 2. MARINO DONATELLA**

## **VERSUS**

**DDUNGU WASSWA IVAN ::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

### **RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Order 9 rule 27, Order 52 rules 1, 2& 3 of the Civil Procedure Rules (CPR) for orders that: - i) The exparte order granted to the Respondent to proceed exparte in Civil Suit No. 0442 of 2022 be set aside. - ii) The Applicants be allowed to defend the suit on merits. - iii) That the costs of this application be provided for.

#### *Background;*

- 2. The Respondent instituted Civil Suit No. 442 of 2022 against the applicants for a declaration that the applicants trespassed on land comprised in LRV KCCA 539 Folio 19, an order for vacant possession and eviction against the defendants (now applicants), a permanent injunction restraining the defendants from committing any further acts of trespass on the plaintiff's (now Respondent's) land, general damages and costs of the suit. - 3. The Applicants through their lawyers of M/s Arcadia Advocates Filed a written statement of defence however, they contend that they have never been served with summons and or any hearing notice to appear and defend Civil Suit No. 442 of 2022 following which this Court ordered that the matter proceeds exparte. - 4. The applicants contend that it was a mistake of Counsel who was instructed to handle the case on their behalf but simply abandoned the matter without notifying the Applicants thus this application to set aside the said order before an exparte judgement is entered.

#### *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavits in support of the application deposed by **HEATHER CREW GEE** the 1st Applicant and are briefly that: - i) That on or around May of 2022, I was served with summons to file a defence within 15 days wherein I instructed my previous Counsel of Mssers Arcadia Advocates to file a defence and conduct the case on my behalf and the 2nd Applicant who is my biological daughter. - ii) That my previous Counsel filed the defence within the 15 days and thereafter abandoned my case without notifying me of what was transpiring in Court and the Respondent has never served me with the summons and or hearing notice requiring me to attend Court to defend my case. - iii) That I was recently shocked when this Honourable Court came to visit locus without any prior notice being served onto me and or getting any notification from my previous Counsel who was also absent on the day of the locus visit. - iv) That subsequently, I immediately followed up my case with my previous Counsel by moving up to their chambers of Messers

Arcadia Advocates wherein I was informed that the Counsel having personal conduct of my case had since left the law firm without proper handover and as such, my case was simply abandoned without any follow up and or notifying me of what was transpiring in Court.

- v) That on following up my case in this Honourable Court with assistance of my Lawyers of MACB Advocates, I discovered that the case came up for hearing for almost seven times without any service of summons being made to me and or getting any notification from my previous counsel and as such the case proceeded exparte without my participation as the listed defendant. - vi) That I also realized that there is a lot of material falsehoods and misrepresentations which were made by the previous counsel in the written statement of defence regarding the matter before this Honourable Court in so far as my interest in the suit land is concerned. - vii) That my previous counsel wrongly and erroneously indicated that am the registered proprietor of LRV 2958 Folio 23 plot 5 Njobe road measuring approximately 0.234 hectares which had expired yet I together with the 2nd Applicant were granted a freehold interest in

the suit land by Kampala District Land Board under minute No. KDLB.8/9.13/2012 in 2012 and subsequently a certificate of title for Freehold Volume 1615 Folio 10 Plot 5 Njobe Road registered in our names as joint tenants was issued in 2015.

- viii) That I have been advised by my Lawyers of MACB Advocates which advise I verily believe to be true that my Freehold certificate of title issued in 2015 on the suit land is important evidence which should be brought to the attention of this Honourable Court by allowing me to defend my case on merits before a judgement is delivered. - ix) That the Applicants will suffer a miscarriage of justice if the Application is not allowed and the Respondent will not be prejudiced in any manner whatsoever and neither will he suffer any injustice if this application is granted by this Honourable Court. - x) That the Application is intended to preserve the right of a fair hearing by allowing me to defend the main suit on merits, it is fair, equitable and in the interest of substantive justice for this application to be allowed by this Honourable Court.

#### *2nd Applicant's Affidavit in Support.*

i) That I am the biological daughter of the 1st Applicant who on or around May of 2022 was served with summons to file a defence within 15 days

wherein the 1st Applicant instructed the previous Counsel of Messers Arcadia Advocates to file a defence and conduct the case on my behalf and the 1st Applicant.

- ii) That the previous Counsel filed the defence and thereafter abandoned our case without notifying me of what was transpiring in Court since most of the time I have been staying in the United Kingdom. - iii)That the Respondent has never served me with the summons and or hearing notice requiring me to attend Court and defend my case and I have been living in United Kingdom since 2020 until recently when I came back to Uganda to visit my mother the 1st Applicant in early September 2024. - iv) That I was recently shocked when my mother the 1st Applicant informed me on arrival that this Honourable Court came to visit locus without any prior notice being served onto me and or getting any notification from our previous Counsel who was also absent on the day of the locus visit. - v) That the previous counsel kept us in the dark on what was transpiring in Court and neither the plaintiff himself nor the previous Counsel bothered to communicate and or notify me of the Court's proceedings in this Honourable Court.

- vi) That on following up my case in this Honourable Court with assistance of my lawyers of MACB Advocates, I discovered that the case has come up for hearing for almost seven times without any service of summons being made to me and or getting any notification from my previous counsel and as such the case proceeded exparte without my participation as the listed defendant. - vii) That I further realized that there is a lot of material falsehoods and misrepresentations which were made by the previous counsel in the written statement of defence regarding the matter before this Honourable Court in so far as my interest in the suit land is concerned. - viii) That the previous counsel wrongly and erroneously indicated that am the registered proprietor of LRV 2958 Folio 23 Plot 5 Njobe Road measuring approximately 0.234 hectares which had expired yet I together with the 1st Applicant were granted a freehold interest in the suit land by Kampala District Land Board under minute No. KDLB.8/9.13/2012 in 2012 and subsequently a certificate of title for freehold volume 1615 folio 10 Plot 5 Njobe road registered in our names as joint tenants was issued in 2015. - ix)That I have been advised by my lawyers of MACB Advocates which advise I verily believe to be true that my freehold certificate of title was issued in 2015 on the suit land is important evidence which should be brought to the attention of this Honourable Court by allowing me to defend my case on merits before a judgement is delivered. - x) That the Applicant will suffer a miscarriage of justice if the application is not allowed and the Respondent will not be prejudiced in any manner whatsoever and neither will he suffer any injustice if this application is granted. - 6. The matter came up for hearing on 24th September,2024 and Court gave directions that the Respondent files his affidavit in reply by 08th October 2024 and written submissions by 16th October 2024 but the Respondent did not comply.

## *Representation;*

7. The Applicants were represented by Counsel Fred Byamukama of M/s MACB Advocates whereas the Respondent was represented by Counsel John Mike Musisi of M/s JM Musisi Advocates and Legal Consultants. Only Applicants filed written submissions which I have considered during the determination of this Application.

# *Issues for determination;*

i) Whether there is sufficient cause to set aside the order granted to the respondent to proceed exparte in the main suit?

# *Resolution and determination of the issue;*

- 10. The Respondent did not oppose this application and it is the position of the law that where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted. **(See; Cooperative Union Ltd v The Registrar of Titles MC No. 48 of 2009 and Samwiri Massa V Rose Achen (1978) HCB 297.)** - 11. Order 9 rule 27 of the Civil Procedure Rules SI 71-1 vests Court with powers to set aside an exparte judgment and the same provides as follows;

# *Setting aside decree ex parte against defendant*

*In any case in which a decree is passed ex parte against a defendant, he or she may apply to the Court by which the decree was passed for an order to set it aside; and if he or she satisfies the Court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called* *on for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also.*

- 12. Section 98 of the Civil Procedure Act provides that nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. - 13. This section empowers the Court to grant any orders in all cases in which it appears to the Court to be just and convenient to do so to ensure that justice is not only done, but seen to be done. - 14. Counsel for the Applicants in his submission states that the Applicants were prevented by sufficient cause from appearing when the suit was called for hearing among which was mistake of counsel and failure to serve summons/ hearing notices onto the Applicants personally wherein he relied on a plethora of authorities to substantiate his arguments.

15. Counsel in his submissions relied on the authority of **Capt. Phillip Ongom Vs Catherine Nyero Owota SCCA No. 14 of 2001** where Court stated that the litigant ought not to bear the consequences of the Advocates default, unless the litigant is privy to the default, or the default results from failure, on the part of the litigant to give the advocate due instructions. The Court went further to state that a litigant's right to a fair hearing in the determination of civil rights and obligations which is enshrined in Article 28 of the constitution should not be defeated on ground of his/her lawyer's mistake.

- 16. He stated that the Applicants instructed their former Lawyers of M/s Arcadia Advocates to file a defence on their behalf and also fully conduct the case on their behalf. That the said lawyers filed a defence for the Applicants but later abandoned the matter without notifying the Applicants what was happening in Court and the Applicants were shocked when Court visited locus on the suit land albeit without any notification given to them. - 17. That upon following up with their former lawyers, the Applicants were informed that Counsel in personal conduct of the matter had since left the firm without a proper handover and as such their case was abandoned.

- 18. Whereas its is true that mistake of Counsel cannot be visited on a litigant, its is also important for the litigant to show diligence in the matter as the principle is in **Nakiride vs Hotel International Ltd [1987] 85.** The Applicants ought to have followed up their matter despite having instructed a lawyer to represent them through the said proceedings thus they were negligent in that regard. - 19. However, this Court is empowered under Section 98 of the Civil Procedure Act to make orders so as to meet the ends of justice. - 20. Whereas the Respondent sued the Applicants for trespass, the Applicants state under paragraphs 9 and 10 of their respective affidavits that they hold a freehold interest in the suit land which was granted by Kampala District Land Board under minute No. KDLB.8/9.13/2012 in 2012 and subsequently a certificate of title for freehold volume 1615 Folio 10 Plot 5 Njobe Road was issued in 2015, registered into their names as joint tenants which evidence cannot be overlooked by this Honourable Court. - 21. The parties are now willing to participate in the proceedings and for this Court to give a meaning full judgement both parties must be heard so as to dispose off the suit of on its merits. A good judgement, like a

lady's garment, should be elegant, concise, yet comprehensive. **(Parker**

### **V Parker [1953] 1 ALL ER 929.**

- 22. Further still, it is the spirit of the constitution under Article 28 that every person is entitled to a fair hearing before an independent tribunal established by law and justice needs not only to be done but also seen to be done. - 23. Therefore, this application hereby succeeds for the foregoing reasons with no orders as to costs

## **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

#### **15th/11/2024**

#### **Delivered Electronically via ECCMIS on the 15 th day of November,**

**2024**