Katende v Victoria Nile Plastics (Miscellaneous Application 142 of 2023) [2024] UGHC 232 (21 April 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 142 OF 2023** ARISING FROM CIVIL SUIT NO. 004 OF 2022 KATENDE HAMIS BOOMA ::::::::::::::::::::::::::::::::::: **VERSUS**

## VICTORIA NILE PLASTICS :::::::::::::::::::::::::::::::::::: BEFORE HONOURABLE JUSTICE DAVID MATOVU **RULING**

#### Introduction

1. Katende Hamis Booma hereinafter referred to as the Applicant brought this application under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Orders 9 rules 12 & 27 and 52 rules 1 & 2 of the Civil Procedure Rules against Victoria Nile Plastics herein after referred to as the Respondent seeking for orders that the order for the Respondent to proceed ex-parte be set aside and the suit be fixed for hearing inter party on its merits.

#### **Back ground facts**

- 2. The Respondent filed Civil Suit No. 004 of 2022 against the Applicant for recovery of Ug Shs $70,320,000/$ = being the balance on the value of goods taken, general damages for breach of contract, interest at commercial rate and costs of the suit. - 3. The Applicant/ Defendant filed his defence denying the said allegations and also filed a counter claim claiming for Ug Shs

$14,900,000/$ = that he paid to the Respondent under a mistaken belief that he owed it money.

- 4. The suit was subsequently set down for hearing. - 5. When the suit came up for hearing, the Trial Judge was indisposed and as such, the parties consented to have their matter adjourned for the 19<sup>th</sup> day of September, 2023 at 09:00am for hearing. - 6. When the matter came up for hearing on the 19<sup>th</sup> day of September, 2023 neither the Applicant nor his advocate were present in Court. - 7. Counsel for the Respondent prayed to proceed exparte which was granted by this Court, hence this application to set aside exparte proceedings.

#### **Legal representation**

8. At the hearing of this application, Mr. Musa Nakueira represented the Applicant while Ms. Amanya Brenda on brief for Mr. Mujuruzi Jamil represented the Respondent.

#### **Evidence of the Applicant**

- 9. The Applicant deponed an affidavit in support of the application and stated that: - - 10. The Applicant was precluded form attending court due to a mechanical failure of the public transport means (taxi) he was travelling in and prevented him from appearing in Court on time. - 11. That the Applicant's advocate was sick and first passed by a clinic to get malaria treatment before proceeding to Court.

- That I arrived at Court at 9:05 am and found the Respondent's $12.$ witnesses and their lawyer leaving the Court room. - 13. That I am interested in hearing my case but was prevented from appearing due to circumstances beyond my control. - 14. That it is in the interest of justice that this application is allowed, and the order to proceed ex-parte be set aside and the suit be fixed for hearing on its merits.

#### **Evidence of the Respondent**

- 15. The Respondent filed an affidavit in reply opposing the instant application deponed by a one Simon Musoke and he and stated that: - - 16. That the Applicant does not show any proof of seriousness in pursuing this matter. - 17. That the Respondent's case was called after another case fixed for 9:00am had been called and the Applicant and his lawyer were absent without any good cause. - 18. That on the 5<sup>th</sup> of June, when the matter came up for hearing, the same was adjourned by consent of both Counsel and there was no reason as to why the Applicant and his Advocate were absent. - That the allegations of sickness of Counsel are hearsay and false 19. and without any evidence to support it but just an afterthought. - 20. That this application is an afterthought and therefore should not be entertained by Court. - 21. That the Applicant has not demonstrated anywhere that he has a good defence and does not want this suit to end as he is

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benefiting from holding the Respondent/ Plaintiff's money without interest.

22. That it is fair and equitable that this application be dismissed with costs as it is calculated to delay the Respondent.

#### **Submissions**

- 23. Both parties addressed this Court by way of written submissions, filed and are on Court record. - 24. The same have been carefully read and considered by Court while arriving at its decision.

#### **Issue for determination**

25. Whether there is sufficient cause shown by the Applicant to warrant setting aside the order to proceed exparte in Civil Suit No. 004 of 2022?

#### **Decision of Court**

26. Order 9 rule 27 of the Civil Procedure Rules is to the effect that 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. (**Emphasis added**)

- 27. Sufficient cause is an expression which has been used in large number of statutes. That the meaning of the word sufficient is adequate or enough in as much as may be necessary to answer the purposes intended. Therefore, the word sufficient embraces no more than that which provides a platitude which when the act is 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 curius man (Hon Justice Musa Ssekaana in Bishop Jacinto Kibuuka Vs. The Uganda Catholic Lawyers Society & Anor MA 696 of 2018) - 28. The case law appears to leave the meaning of "sufficient cause" to judicial discretion and determination based on the facts, surrounding circumstances and the merits of each particular case and to ensure the ends of justice. The conduct of the parties, for example, whether or not, a party has been grossly negligent, careless, reckless or palpably indifferent in prosecuting the case, would be a consideration. - 29. In the instant case, the Applicant states that he reached Court at 09:05 am and found the Respondent, his witnesses and their Advocate walking out of Court. - 30. However, upon perusal of the record, it shows that the said suit was called up for hearing at 09:06am and neither the Applicant nor his Advocate was present.

- 31. Further, the Applicant contends that his Advocate was sick and not feeling well and first passed by a clinic to receive malaria treatment thus reaching Court at 9:18 am when the suit had proceeded exparte against the Applicant. - 32. However, there is no evidence that has been furnished to this Court to prove the said assertion. - 33. This Court therefore finds the conduct of both the Applicant and his Advocate dilatory, which this Court cannot condone. - 34. This Court therefore finds that the Applicant has not shown any sufficient cause to warrant the setting aside of exparte proceedings in Civil Suit No. 004 of 2022. - 35. This Court therefore finds no merit in the instant applicant and it is dismissed as such.

### Conclusion

- 36. In the final result, this application is dismissed with costs. - 37. Civil suit No. 004 of 2022 is set down for judgement.

Dated this day of $\mathcal{M}$ 2024. David Matovu

JUDGE