Kiweewa v Kasujja (Miscellaneous Application 13 of 2022) [2023] UGHC 336 (1 April 2023)

Full Case Text

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISC. APPL NO. 13 OF 2022 (ARISING FROM HIGH COURT CIVIL SUIT NO. 36 OF 2016)**

**KIWEEWA DERRICK …………………………………………………. APPLICANT**

### **VERSUS**

**KASUJJA ENOCK STEVE …………………………………………… RESPONDENT**

#### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Respondent instituted civil suit No. 36 of 2016 against the Applicant for a declaration that the Plaintiff is the owner of the suit land comprised in Block 279 Plot 103 land at Katolerwa in Bukomansimbi District among other reliefs.

The Civil Suit was called for hearing on 8th July 2020. The Applicant was duly served with a hearing notice through his Advocates on record, M/s Kityo & Co. Advocates. An affidavit of service dated 08/07/2020 of the hearing notice for the day deponed to by Aleku Durukhalit was duly filed on the record of the main suit file from which this application arises.

On the day of hearing neither the Applicant nor his Advocates appeared to attend to the hearing of the then backlog main suit. Upon the Respondent's prayer this court granted him an order to proceed expert. The Respondent proved his case and Judgment was duly entered in his favor.

The Applicant has now brought this application to set aside the order to proceed ex parte, the ex parte proceedings and the Judgment of this court. His contention is that he had since appointed a lawful attorney who was arrested and indicted for aggravated defilement and was thereby prevented from attending court. He also blames the nonattendance to the detachment of his Advocates from his lawful attorney and the five days' notice which he claims was insufficient for his Advocate to attend to the hearing.

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#### **Representation**

The Applicant was represented by **M/s Kityo & Co. Advocates**.

The Respondent was on the other hand represented by **M/s R. C Munyani & Co. Advocates**.

#### **APPLICANT'S SUBMISSIONS**

**ISSUE ONE:** *Whether the arrest, charge and remand of the applicant's attorney to Kitalya prison from 7th April 2020 until 9th February 2021 when he was released on court bond constitutes a sufficient ground for his none attendance of court on 8th July 2020?*

The Applicant submitted that he appointed an attorney, Jjuuko Roman who was arrested and charged with offence of aggravated defilement. He annexed to his affidavit in support documents demonstrating that indeed Jjuuko Roman was arrested and released on court bond.

On basis of the above submission, the Applicant maintains that this court should believe that his Advocate and himself were at all times interested in prosecuting the main suit.

The Applicant maintains that on both occasions when the suit came up on 30th June 2020 and 8th July 2020 his lawful attorney was in custody and unable to follow up with his Advocates as both lawful Attorney and Advocates omitted to exchange phone contacts.

# *ISSUE TWO: Whether there was effective and sufficient service of the hearing notices in the suit scheduled for hearing on 8th July 2020?*

The Applicant submits that the hearing notices were served only five days to the day of hearing which according to him was insufficient notice.

The Applicant prayed that this court finds the 8 days' adjournment and 5 days' notice to his counsel insufficient notice.

#### **REPONDENT'S SUBMISSIONS**

#### **Issues 1:**

The Respondent submitted that according to paragraphs 4, 5, 6 and 7 of his affidavit in reply it is clearly stated that the applicant did not have an attorney in the above suit.

The Respondent further submits that the power of attorney annexure "A" to the affidavit in support of Kiweewa Derrick was an afterthought prepared after judgment was delivered to support this

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application the reason it is not registered with Uganda Registration Services Bureau as provided by law.

The Respondent also drew this court's attention to the fact that the said power of attorney that Jjuuko Roman was given to give evidence on behalf of the applicant were issued was allegedly filed on the same day both the applicant and Roman Jjuuko filed written witness statements. That also, in the written witness statement of Roman Jjuuko, he did not indicate that he was the attorney of the applicant.

#### **ISSUE 2;**

The Respondent submits that in paragraph 10 of his affidavit in reply, it is averred that counsel for applicant was served with hearing notices on the 3rd of July 2020. A copy of the acknowledged hearing notice was attached and marked annexure "B" to the said affidavit.

That the test on the application to set aside an ex-parte judgment is whether the applicant and his counsel honestly wanted to attend the hearing and did their best to do so.

The Respondent submitted that the applicant and his counsel did not prove to this court that they were prevented by sufficient cause from attending court on the 8th of July 2020.

The Respondent also submitted that the Applicants had delayed to institute the Application for setting aside the Judgment and the exparte proceedings. He prayed that the Application be dismissed with costs to him.

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#### **DETERMINATION BY COURT**.

I have carefully considered the pleadings, and the legal arguments made by counsel for the parties in this matter and I have come to conclusions highlighted below.

I have taken trouble to revisit the record of the main suit and found that since the alleged appointment of the lawful attorney on 9th September 2019, the main suit came up on three other occasions to wit, 16/01/2020, 20/02/2020 and 30/06/2020. On all these occasions the Applicant and his counsel had opportunity to communicate the appointment of the lawful attorney and even apply to have him impleaded in the suit but did not.

Secondly, a power of attorney to be relied on for purposes of prosecution of the suit, had to be registered with the Uganda Registration Services Bureau (URSB) under the *Registration of Documents Act Cap. 81*.

*S. 17(1) of the Registration of Documents Act entitles litigants to use registered documents signed by the Registrar in Civil suits.*

*S.17(2) of the above Act, requires a party intending to rely on a registered document to procure a certified copy as evidence in court.*

*The suit land in the main suit was registered land. Both parties were contesting for an ownership right in the same suit land registered under The Registration of Titles Act Cap. 230.*

*S. 146(1) of the Registration of Titles Act Cap. 230, requires a proprietor of any land under the operation of this Act seeking to deal in it to appoint an attorney by executing a power of attorney.*

*S.146(2) of the Registration of Titles Act Cap. 230 requires every such power of attorney to be registered in accordance with the Registration of Documents Act Cap. 81. See The Hon. Mr. Justice I Mukanza in Mrs. Tereza Beatrice Nalumaga Nyaika vs. Prince Patrick Olimi Kaboyo HCCS No. DR. MFP 12/1990 At Fort Portal*.

In this case, the Applicant rightly executed a power of attorney but omitted to have it registered as required by law.

In light of the above findings, it is the opinion of this court that the arrest and detention of Roman Jjuuko for aggravated defilement was of no consequence as far as the Applicant's duty to defend HCCS No. 36 of 2016 was concerned.

The fact that the Applicant alleges to have earlier on decided to defend the suit through his lawful attorney, the fact that the date of appointment of the Attorney and the date of filing his witness statement in the matter is the same, also creates a strong doubt on the Attorney. In the absence of

an explanation for this anomaly, this court was left wondering why the Applicant would choose to file evidence, thereby making himself a candidate for cross examination and yet still decide to appoint an attorney to represent him in giving the same evidence in the same matter.

Despite alleging to have appointed an Attorney, which appointment as earlier noted, lacks the force of law in the circumstances of this case, the Applicant has also not bothered to disclose to this court as to his whereabouts on the day of hearing. Had he disclosed what inhibited him from attending court, this would have shed some light as to whether he had a valid justification for his nonattendance of court.

In conclusion, this court answers this issue in the negative.

# *ISSUE TWO: Whether there was effective and sufficient service of the hearing notices in the suit scheduled for hearing on 8th July 2020?*

The only clear argument raised by the Applicant on this issue is that the adjournment to an eight days period and the five days' notice given to his Advocates of Kityo & Co. Advocates was insufficient.

The Applicant's Advocates as legal representatives of the Applicant are themselves not complaining about the five days's notice that was given to them. Had they been among the complainants, one of the partners would sworn an affidavit to that effect.

Most importantly, however, the said Advocates as per the affidavit of service noted in the background to this ruling, received the notice without any protest as to the alleged short notice. They did not make any protest as to having an earlier fixed engagement in any of the courts superior to this court either.

Owing to the above reasons, this court finds the allegation of short notice an afterthought calculated by the Applicant to set aside a whole Judgment of this court to return this backlog case for further adjudication.

I noted that the Applicant in his opening remarks tried his best to make out a case for a fair hearing enshrined in Article 28(1) of the Constitution of Uganda as amended to warrant the reopening of this case to hear the case interparty. The provision cited by the Applicant indeed envisages that a fair trial should ensure hearing of both parties but it also envisages a fair and speedy trial.

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This means that a fair trial should also be speedy. Fairness has to be balanced with timely adjudication of cases. The courts would never be able to dispense justice in a timely manner if they were to condone sloppy, dilatory conduct of some of the litigants as that that led to dismissal of HCCS No. 36/2016.

In any case, notwithstanding, all the above, this court is of the firm view that the five days' notice was sufficient in the circumstances of this case.

This issue too, is answered in the negative.

While writing this, Ruling I noted that the Respondent filed a bill of costs, omitted to serve the same with a taxation hearing notices and on the day of hearing, applied to have it taxed ex parte owing this court's earlier order to proceed ex parte. I find this irregular and an infringement on the Applicant's right to be heard on the bill of costs. I hereby set aside the award in the certificate of taxation in the spirit of S.33 of the Judicature Act and S. 98 of the Civil Procedure Act to avoid a possible multiplicity of suits and order that the bill be taxed interparty.

In conclusion, this application is hereby dismissed with costs to the Respondent.

I so order.

Orders;

- 1. The Application is hereby dismissed with costs. - 2. The Certificate of taxation of costs in HCCS No. 36/2016 is hereby set aside. - 3. The Bill of costs in HCCS No. 36/2016 shall be re-taxed interparty.

Dated and delivered electronically this 1st day of April, 2023

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## **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**