Mbabali v Kidza & Another (Civil Suit 615 of 1969) [1991] UGHC 39 (20 February 1991)

Full Case Text

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I^SPUEIIC 0? UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 6-15 OF -I960

PLAINTIFF/APPLICANT DANIEL SEMPA MBABALI VERSUS

D3FENDANT/RESP0NDENT 1. WILLIAM K. KIDZA Q 2. ADMINISTRATOR GENERAL (J

BEEORE: The Hon, Mr, Justice J/LN. Tsekooko.

## ORDER

This order concerns a. notice of motion instituted by the plaintiff/applicant (henceforth called the applicant) under Order 9 Rule 20 and Order 48 Rule "\ of the Civil Procedure Rules whereby the applicant seeks to have the order of Kalanda J. dated 4/10/1988 dismissing Civil Suit No. 615 of 1969 set aside.

The application is supported by 5 affidavits the first of which was sworn on 8/5/1990, by the applicant and the second one 'was sworn by late Senyondo on 16/5/1990 on which date also the third affidavit was sworn by Mr. Sendege, who is counsel for the applicant. No Counter affidavits are on the record.

From the Court record the main suit has had a really chequered history. The suit was filed on 29/11/1969 against the first respondent and four other defendants. The suit was filed by the then firm of Kiwanuka & Co. Advocates. The written statements of the defence-was filed on 15/2/19/0. In May 19/0, the plaintiff changed advocates. On 18/5/1970 counsel for the parties by consent fixed the suit for hearing on 21st and 22nd September. 1970 which hearing was later changed because of

sickness of one of the advocates, The case was again on 19/5/1971 fixed by con.7:cnt\_ for hearing on\_ 5/5/1971 but did not take off. It was further fixed on 21/5/1971 by consent for hearing on 1/11/1971 on which date it was recorded on court record that 2nd defendant had died and his legal Representative was unknown.

There is a letter reference JS/965/72 dated 18/10/1974 in which the present counsel for the applicat requested the counsel for the then defendant? to confirm if one of the defendants was dead so that certain steps could be taken. This death was confirmed in court on 1/11/1974. Eventually the other defendants save for the present first respondent died.

On 21 5/1985 the applicant obtained an xparte judgment against the present 1st respondent and deceased four. That judgment was set aside on 15/1/1986.

Then from 17/1/1986, the hearing was for various reasons adjourned from time to time till 25/2/1988 when the present second respondent was appointed by this Court to administer the estates of the four dead defendants. On 15/4-/1988 an amended plaint on which the 2nd respondent had become the 2nd Defendant was filed in Court.

On 6/6/1988 hearing could rot take off because there was no proof of service of the Second Respondent who had not appeared. On that day Karokora J. adjourned the case to 4/10/1988 for hearing. On 4/10/1983 the Court record shows that Counsel for the 1st Respondent applied for the suit to be heard and the suit was dismissed because of non prosecution as plaint ff's Cassel v- not present\* "Teuce the applicant

filed Notice of Motion on -14/10/1988 to set aside the dismissal order. The Notice of Motion was on 2/5/1990 dismissed by Oum-a—J-.—bec-au-se in I,er alia it was instituted under a wrong law. Hence the presence appl"cation I thought I should set out this back ground for the proper understanding of this matter connected with a very old suit.

The notice of motion contains two grounds namely "(a) Mr. Sendege of Sendege Senyondo & Co. Advocates, who has bee.n personnally responsible for conducting the prosecution of the above mentioned suit ever since it was filed and who is the only member of the firm well versed with its complexities and niceties was seriously sick on the 4th October, 1988 when it came up for hearing and could not attend court. (b) Mr. B. Z. Senyondo who held a brief for him was misled by his watch which was eleven minutes behind the standard time, and arrived in court six minutes late after the case had been dismissed."

In his Submissions, Mr. Sendege, learned counsel for the applicant read out the two grounds reproduced above and also referred to the 5 Affidavits. He contended that sickness is never invited and that loosing time by Senyondo's watch could not be fault of applicant's counsel. He submitted in effect that applicant had been deligerit and had in 1985 obtained exparte Judgment which was later set aside. He stated the subject matter being land, which is valuable, the suit ought to be heard and decided on its merits.

In opposition Mr. Muhanguzi first submitted that the application was improperly before the court. That as the suit

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had been dismissed, it is no longer in Court. That the application should have beer •'r way of a Miscellenous Application and not by way of notice of motion.

In dealing with this point let me point out that when Mr. Muhanguzi applied for the suit to be dismissed he did not cite the law under which the application was sought. In the result the dismissal order did not r-fer to any law. So eventually counsel for Applicant has had to apply for reinstatement of the su.it under 9.4 Rule 20 on the assumption that the dismissal was effected under Rule 19 of Order 9- 0.9 Rule 20 subrule 2 states "No order shall be made under this rule unless notice of the application has been served on the opposite part". This subrule does not prescribed the form in which Notice of Application is to be madea It is within my experience that applications &gt; c:t aside dismissal order under this rule are generally made in the san- format as that which was adopted by the applicant here. Besides the Civil Procedure Act and the Civil Procedure Rules don't specify in what form an application of this sort should be taken.

For example section 94 of the Civil Procedure Act simply states ''All orders or notices served on or given to any person under the provisions of this Act shall be in writing." This section offers no assistance. Order 45 of Civil Procedure Rules deals with Miscellenous matters-. And 0.45 Rule'5 states ''The forms used for the purposes of the Act shall, with such variation as the circumstances of each case may require, be those to be found in the Appendixes and such other forms as may be from time to tine approved by the High Court."

As I have said the rule: we not prescribed the form to be used for this application. It is not in the Appendixes either. Mr. Muhanguzi dia not point out any. The High Court could be said to have approved the type used here since many applications are prosecuted /in that fashion.

Moreover in my view the reading of 0.9 Rule 20 subrule 1 leads to the inference that dismissal of the suit under Rule 19 does not wholly erase everything connected with the subs from the Court records. That is gathered from the last part of subrule 1 which states "...,................................. the court that there was sufficient cause for non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal ............... and shall appoint day for proceding with the suit." The last part inanimave presupposed that the suit is there perhaps notionally/ The application in the case of Masaba vs. Republic /79717 EA 488 is, for instance, defferent. Therefore, the first point of objection fails.

Next Mr. Muhanguzi contended that the applicant had been guilty of latches and committed careless mistakes in the handling of the case. That the case had taken 16 years before exparts hearing in 1985. That even this application has taken 6 months before it could be heard. That dismissal order was made two years ago and it would not be proper to set it aside.

I agree with Mr. Muhanguzi that the disposal of the suit has delayed for a very long time. I am tempted to believe that this suit could be the only one, or one of the rarefew, that has earned itself the unenviable history of remaining untried

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and undetermined for new 22 years' That is very clear indictment of our sticking to procedures which tend to aggravate delays in disposal of litigation.?. The idea of insisting on getting the Administrator General to st u in the shoes of the dead former four defendants is in my view the principal reason for the delay in hearing this suit. The Court record supports me in this.

However the rule under which the application has been made requires the applicant to satisfy the- court that there was sufficient cause for non-appearance when the suit was cal led on for hearing.

The applicant has by affidavits explained why he was absent at the time when the suit was called on for hearing.

The Co Tt record does not show the time at which the. suit was called for hearing before it was dismissed. Para. '10 of Buyondors affidavit show that he and the applicant reached Court believing that his watch was correctly reading 9.00a.m. That the presiding judge who h.-.d dismissed the suit showed him his watch which was in fact reading 9«06a.m. That Mr. Buyondo did not know that his watch was losing hence the difference of 6 minutes. As I said there is no contrary evidence, or any other evidence, to show that Mr. Buyondo and the applicant are not stating the truth. Equally there is no evidence to show that Sendege was not stating the truth when he desponed that he was sick and bedridden on 4/j0/'1988o Tn my view being absent because of unpretended sickness is a cause, and sufficient cause at that also T. think that arriving late through no deliberate fault on the rart of the applicant is sufficient cause.

An applicatio.n which was substantially similar to the one before me was dealt with by Gbudie J, in the case of Girado vs. Alam & Sons (U) Ltd. (d97d) EA ^48. There the affidavits in support of the application were unreliable and suspect-The application was in fact filed nine months after dismissal yet in the present case the original application was filed \*10 days after dismissal. In spite of the unsatisfactory nature of the application the learned judge granted it setting dismissal order aside.

At page 44-9 he expressed himself in these words

"1 am very far from satisfied that sufficient cause for non appearance has been shown under 0.9 Rule 20. At the same time all the authorities support the view that the court has I an inhe. nt power to restore a suit dismissed for default even I if no sufficient cause is shown. I have hesitated whether to do so in this case in view of the long delay in bringing the application since the application itself was not brought until after the suit limitation period had expired. However there is no limitation period within which the application itself needs to be brought although I note that under the Indian Code it has to be brought within 30 days. It seems to me that it would be a very useful provision in our rules to set a time limit within which application to set aside may be brought.

Purely in order to ensure that there is no possibility of injustice to the plaintiff .and without having the slightest sympathy for his advocates, I direct that the order dismissing the suit be set aside .........n

I have reproduced this passage not because I had any hesitation about sufficiency of the -ausc shown but to show illustrative ex£imple where a Court was hesitant to deny a party a hearing because litigation had not been determined on merits. Apart from the element of hesitation in that 7assage, I fully agree with the views of the learned judge. Incidentally the application in that case appears to have followed the format similar to this application.

There may arise cases where latches would bar an applicant from having a dismissal order set aside\* But in the present case I am not convinced th?.t the applicant is guilty of culpable latches e-

Accordingly the application succeeds. The dismissal order dated 4 9/1988 is hereby set aside., The osts for 4/10/^~38 and for\* this application shall be paid to the first respondent/defendant by tne applicant/plaintiff in any event. These costs must betaxed and paid by the applicant within twenty days from the date hereof. I further direct that the applicant must expeditiously secure the exhibits needed in this ( use and have the suit fixed for hearing as quickly as possible. Because of the exhibits problemm, I could have fixed a hearing date. If exhibits are lost, the applicant must find a way of having this suit disposed of without any further delay.

u"'ll D G E 20/2/1991»

20/2/1991 at 9>O9 a.m.; Sendee for Applicant. Applica present c Pespon1e\_.t absent.

ir agaba - Interpreter. Ruling delivered.