Mukabalanga v Mbaraga (Miscellaneous Application No. 2051 of 2021) [2022] UGHCLD 157 (8 August 2022)

Full Case Text

## TIIE REPUBLIC OF UGANDA

IN THT HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DI\rISION)

#### MISCELLANEOUS APPLICATION NO. 2051 OF' 2021

(Artstng lrotn ctoll Sutt No. OO3 oJ 2016)

MUKABALANGA ESTHER. . APPLICANTS

#### VERSUS

MBARAGA EVEREST.......... RESPONDENT

Before: Iadu Justlce Alcxdndr(l Nkonoe Rugadaa

## 15 RULING:

## Introduction:

This application seeks orders that the judgment and orders of this court delivered on 6'h June 2021 against the applicants in Clrrt Sult No. OO3 ol2016 be set asidc and that the main suit be reinstated and heard on its merits; and for costs to be provided for.

# ZO Grouads of the o,oolicatlolt:

The affidavits in support were irled by the applicants Ms Mukabalamba Esther and Ms Najjengo Josephine, respectively the 1'1 and the 3'd defendants under the main suit

Briefly, they claimed that this court proceeded with the hearing without securing the attendance of the 1( applicant and did not participate in the hearing of the suit. That the applicants just learnt that

25 judgment was entered against them without notice as she was ncvcr served with any court process to appear and defend the case.

Her contention was that misunderstandings between her and her counsel developed upon which he had stopped giving her information about the proceedings in court. That mistake of counsel should not be visited on her as a litigant.

\r\dt

Furthermore that the 2nd and 3ft! defendants had been ordered by this court to establish the whereabouts of the 1\* applicant for service of court papers, but that before they could do so and report to court, judgment was passed against all applicants/defendants.

The second affidavit in support was deponed by the 2nd applicant who on her part averred that shortly before the 2nd Covid period this court had directed the 2"d and 3.d defendants to trace the 1"'applicant since the process seryer had failed to locate her.

They managed to locate her later in Mbale however that this was during the covid period when movements were restricted. They expected to receive hearing notices upon which they were to furnish court with the said findings, but the respondent never served them with the summons, only to be served later with the judgment and taxation hearing for a case in which the 1"t applicant was not

That this application has been brought without unreasonable delay. That the defendants are therefore aggrieved by the orders of this court and that in the interest of substantive justice the application be allowed..

# 15 In respo^se:

heard.

The respondent, Mr. Mbaraga Everest however in repty objected to the application on the ground that the application contained obvious falsehoods and that his lawyers would seek leave of court to cross examine the deponent. Since however the lawyers never sought leave of court or refer to this request in the submission it would appear that they had abandoned it.

- 20 It was also deponed that all parties had been duly served and their respective WDS filed in court having been duly represented by different law firms at the time. The matter had gone for mediation which according to the respondent was frustrated by the l applicant who on a number of occasions never attended in person but sent her counsel Ruhinda Ronald, upon which mediation had closed and file forwarded to the trial judge. - 25 The applicants/defendants attended scheduling and the matter was fixed for hearing before the judge. On the date scheduled for hearing counsel Ruhinda for the ts applicant however never attended but sent his assistant Julian Natukunda to seek an adjournment which was granted by court.

However on the date adjourned for heating neither counsel nor the l"tapplicant turned up. However the lawyer for the respondent and the 2.d and 3.d defendants were all in co:urt. In paragraph 6 of her affidavit in support the 1"t applicant concedes that she was in touch with her lawyer even though he

30 received the hearing notices in protest, and still never attended court.

Counsel for the respondent therefore submitted that the application was frivolous and vexatious and bad in law and an abuse of court proccss and should be dismissed with costs. Counsel submitted that on many occasions the l applicant was summoned to attend mediation and for the hearing

uJ-y,)

Thus in liling this application the applicants' objective was to frustrate the respondent from realizing the fruits of his judgment and (without prejudice) asked court to order the applicants to deposit security for costs equivalent to the general damages awarded in the judgment and taxed costs as per the decree and certificate of taxation; and costs of this application

# 5 Represe t. Itlon:

The l"tapplicant was initially represented by Itls R. ]}' Ruhlnd.a Ad.tmcates. The 2"d defendant, Tadeo Serumaga and the 3'd defendant/2\*r applicant Najjengo Josephine were both represented by llqs Rugambud, Gg,dqlq Aduoc ate s.

10 In this application however, the two applicants were rcpresented by M/s Kqweesa & Co. Adoocdtes. The respondent on the other hand was reprcsentcd by M/s ochteng Assoclo,t,d Adtocqtes &, Solicitors, thc samc flrm that reprcsented him during the trial.

## Conslderatlon ol the lssue:

Counsel for the respondent raised an objection that he had been served out of time, and without leave of court. The dctails of his arguments are as laid out in his submissions. I will therefore not repeat

15 them here.

Suffice to state that initialty directives were made on 17!h December, 2O2l for the senrice of the application and submissions. These for some reason were not served to the respondent; and upon request to court another schedule was issued requiring the appiicants to serve by 25'h February ' 2022; the repty by 4th March 2022 and a rejoinder by 7'h March, 2022, whtc|l directivcs were duly complied

20 with. The objection by the respondent therefore that he was served out of time, and without leave of court does not hold merit.

Now for the medts of this application

The issue to be resolved is whether the application merits the prayers sought. The applicants' claim is that they are all aggrieved by the decree of court. The 2"d defendant however was not a party to this application and there is nothing from the record to show that he had authorized any of the applicants to file this application. I therefore chose to disregard their claim that they were representing him as well.

But secondly and more importantly, the 2"d and 3'd defendants were at all material times duly represented by their counsel. They were availed a chance to hle their defence, and attended the hearing at all material times. They also attended the locus visit.

The prayers to have the judgment set aside and reinstate the main suit on account of failure to effect service would therefore not be applicable to them. The record also indicates that they were fully aware of the 1\* applicant's whereabouts and cven had her number.

,}" \"f ) a{Y u,.v-

ln the course of the proceedings attempts had been made in the presence of court to reach out to her on her known number but these attempts had faited thus prompting court to come to the conclusion that the 1\* applicant who often through counsel had been fully aware of the case against her had since become elusive. The matter was heard in her absence but in the presence of the 2"d and 3d

5 defendants-

Judgment was delivered on 16th June, 2O2l and indeed court takes judicial notice of the fact that the Covid restrictions on movement were relaxed on 31\* July, 2O21. lt was not until 2'd November, 2021 that this application was filed.

The 2"d applicant herself attended the hearing which meant that at the time there were no such restrictions to the movements or at the time when court conducted the visit at the locus to prevent anyone from attending court. 10

# Order 9 nie 27 of the Clvll Procedure Rnles provides

In ang case ln tohlch a decree ls passed exparte agaln st a d.elend.r,tt, he/sh.e ,nag awlg to the courl uhlch passed. the s(rme lor anr. order to set lt qslde ; o:'I,d l, srrc satisres court that t tc su',r.mo,rs ua.s not dulg set'tEd or th.at shc ua.s preaeated W srrfftclent cause frotn uhEn the sult utas caa for heari the court shall do so ...upon such ter'ms o.s to cost, and sho'll appotnt a dag lor proceedlng tDltht\e s,rlt .,. and. t tc satme rnag be set dslde agalr8t dll deJendants i/ it is lmposslble to do so agalnst one delenddnt.

- 20 glfrtcient cause or reason must rclatc to inability or failure to take any particular step in time. (Roset-te Klzlto us Adtnlnlstrator Gen,e7ol and. others: SCC. A No. 9 ol 19Aq. Thc facts and circumstanccs of each case must afford sufficicnt ground to enable the court conccrned to exercise discretion, and to do so judiciously: lBlsrtop J(Iclnto Klbuuka os llganda catltollc lautgcts Socletg o,n,d Anor MA No.696 207Q. - It was the applicants' contention that the evidence of the 1{ applicant formed an essential part of the suit as would assist court in disposing of the matter without prejudice to the applicants. That the respondent had not attached proof that on several occasions the court directed service of court process to the 1s applicant's known advocates and that it was done, apart from the attached hearing notices and its corresponding affidavit of service by the process server, Mr. lsaac Muwanga. Muwanga deponed that the counsel ld applicant received the hearing notices in protest on the grounds that he had lost touch with his client. 25 30

The 1d applicant however disputed this ciaim maintaining that she was in touch with her counsel who however had stopped informing her of any proceedings after a misunderstanding arose between them; and that mistake of her lormer counsel should not be visited on her. That even when her counsel

s),t

was served with the hearing notice dated 10th May, 2019 to appear for her case on 26th June, 2019 at 12.00pm he never informed her.

This court however finds this argument rather self-defeating. By her own admission she kept in touch with her counsel, suggesting therefore that the non- appearance for the hearing fixed on 26th June,

$\mathsf{S}$

$10$

2019 was not because the 1st applicant had not been served but rather that her counsel through whom she received service of court papers had failed to relay that information to her following misunderstandings on what course of action to be taken in her defence.

When a litigant rejects the professional advice by his or her counsel, to this court that is a cue to take the next best course of action: to withdraw instructions from counsel, follow up the case or engage another counsel, but not to sit back and wait to be attended to as the 1st applicant did in this case.

As admitted by her, at no point did she lose touch with her counsel. She never withdrew instructions from him after the disagreement between them; and never took responsibility to make any follow up on her defence in a case that she knew had been filed against her as early as 2016. She only woke up upon realizing that judgment had been passed against her.

- The rules under order 3 rule 2 of the CPR are clear that service through an advocate as an authorized 15 agent is deemed to be effective service. It is therefore the conclusion by this court that the 1st applicant was duly served through her former counsel and cannot attribute her shortcomings or her failure to see eye to eye with her counsel, to the respondent, as that is information which was not within the knowledge of the respondent. - Between counsel and his client misunderstandings are always bound to happen and in the view of 20 this court, where professional advice is rendered (without evidence on record that it was done in bad faith), refusal by a client to take it or failure to agree on a particular aspect of the case or course of action to take would not be sufficient cause to justify the setting aside of an *exparte* judgment under order 9 rule 27 of the CPR. - For those reasons therefore, this court is inclined to reject this application. 25

Costs to the respondent.

Alexandra Nkonge Rugadya

30 Judge

8th August, 2022

Deliver? by amail Og/8/202 09/8/202