Natukunda v Muhaise Bikalemesa (Miscellaneous Application 256 of 2021) [2024] UGHCLD 278 (9 December 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION MISC. APPLICATION No. O259 OF 2O2l (ARTSING FROM CML SUIT NO.178 OF 2017) NATUKUNDA WASHABA RUTH: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPLICANT VERSUS

JOHN MIIHAISE BIKALEMESA: : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

# BEFORE: HON. LADY JUSTICE ELIZABETH JANE ALII/IDZA

## RULING

## REPRESENTATION

<sup>15</sup> Counsel from M/s Abbas Advocates represented the Applicant.

The Respondent was represented by Counsel from M/s Wablo Associated Advocates.

#### INTRODUCTTON

20 The Applicant brought this Application under Section 33 of the Judicature Act, Order 9 Rule 27 , Order 52 Rules I and 2 of the Civil Procedure Rules seeking that the judgement and decree issued vide Civil Suit No. 178 of 2Ol7 be set aside and the suit be reinstated and heard interparty on its merits and costs of the Application.

The grounds of this Application are contained in the notice of motion and Affidavit in support deponed by Washaba Alfred the Applicant's authorized Attorney briefly stating that;

- <sup>1</sup> Court issued judgment and decree vide civil suit No. 178 of 2OL7 agatnst the Applicant directing inter alia for cancellation of the certificate of title held by the Applicant for the suit land, payment of genera-l damages to the Respondent to the tune of UGX 1O0,O0O,OO0 and costs of the suit. - The Applicant was not awa-re of the prosecution of this case as neither her lawyers nor the Respondent ever informed them about the proceedings of the case or hearing date whenever the suit came up for hearing. 1t

- The suit wholly proceeded against her exparte and she did not get any opportunity to defend herself and show evidence that the suit land belonged to her. 111. - She was thus prevented by a just cause from appearing or defending herself in Court when the suit was heard and disposed of. 1V. 40 - The Applicant has a viable and strong defence and evidence to prove that she is a bonalide purchaser, holds a clean certificate of title, was never party of fraud as attributed by the Respondent v - The Applicant should not be condemned r.rnheard and or unfairly punished for her former Advocate's errors, negligence or defaults by not representing her at the hearing of the suit. 45 Vl - The Applicant stands to suffer gross infringement on her constitutional rights, substantial and irreparable loss if the judgment and decree issued vide Civil suit No. 178 of 2Ol7 are not set aside and the suit reinstated and heard interparty. vl1

6n

In his Affidavit in Reply to the Application, the Respondent contends that;

- $\dot{i}$ . The Applicant was at all material times served through her lawyers of M/S Kanduho and Co. Advocates all through 55 mediation, trial including taxation proceedings but chose not to attend Court. - It is not on Court record that M/S Kanduho and Co. Advocates ii. ceased to represent the Applicant. Its therefore false and misleading for the Applicant to allege her constitutional right to a hearing was infringed.

- iii. The Applicant filed written statement of defence but did not exhibit any vigilance which was characterized by her refusal to attend Court. - iv. The Applicant has no viable defence, she no longer holds any 65 title to the suit land as the earlier one fraudulently obtained was long cancelled and the Respondents names restored. - That the Applicant has never had physical possession of the suit $V$ . land, at the time the Applicant tried to criminally trespass on the suit land, the Respondent's property was vandalized by gang of marijuana smokers hired by the Applicant's Attorney prompting immediate police investigation. - vi. That setting aside of the decree and having the suit heard again shall prejudice the Respondent as setting aside of the decree where the major prayers in Civil Suit No. 178 of 2017 are now a moot will lead to an absurdity;

$\mathbf{3}$

- v11 The Applicant's written statement of defence was long overtaken by events; she is no longer an aggrieved party to prosecute Civil Suit No. 778 of 2Ol7 and that public policy demands that there should be an end to litigation. - v111 The Application is frivolous and intended to buy time and rather keep the Respondents away from fruits of litigation.

#### BACKGROUND

85 90 The Respondent filed Civil Suit No.178 of 201,7 against the Applicant and two others seeking inter alia for declarations that he is the lawful owner of the suit land comprised in Kyadondo Block 195 plot 2348 situate at Kyanja measuring 0.200 Hectares, declaration that the purported transfers of title to the Applicant in respect of the suit property were fraudulent, cancellation of the Applicant's certificate of title, permanent injunction, general damages and costs.

The Applicant filed a written statement of defence through her then Lawyers from M/s Kanduho & Co. Advocates. When the matter came up for hearing, neither the Applicant nor her lawyers entered appe€rrance for the hearing despite being served with a hearing notice.

The suit proceeded exparte. This Court issued judgment delivered on <sup>22</sup>lll/2019. The Court found that the suit land belongs to the Respondent, that the purported transfers of the certificate of title to the Applicant were tainted with fraud. Court directed inter alia for the cancellation of the certificate of title for the suit land held by the Applicant, paJrment of general damages to the Respondent to the tun

of UGX 1OO,O0O,O0O by the Defendants jointly or severally and costs of the suit.

105 The Respondent then started the execution process. The certificate of title in the Applicant's names was cancelled. The Respondent then became the registered proprietor of the suit land. The Respondent pursued the Applicant for the general damages and costs of the suit.

110 The Applicant contends that she was not aware of the proceedings of this case neither were her lawyers ever informed about the proceedings in Court. That the suit wholly proceeded against the Applicant exparte and she did not get an opportunity to defend herself and how evidence that the suit property rightfully belongs to her.

115 That she learnt of the status of the suit on the loth day February 2O2 1 when she was personally approached by the Court process server who presented to her a notice to show catlse, application for execution and a copy of the decree.

That the said notice to show cause required her to appear before the honourable Court on 18th Feb 2O2L at 9:O0 am and show cause why execution should not be issued against her by way of arrest and civil imprisonment.

1,20

The Applicant then filed Misc. App No. 260 of 2O2 1 seeking stay of execution, the Application was granted on condition that the Applicant deposits UGX 10,000,000 for performance of the decree <sup>125</sup> which she deposited on the 281312023.

<sup>5</sup> i\

This Application was earlier dismissed but reinstated and Counsel filed submissions for this Court's consideration.

## ISSUES RAISED

- 1. Whether the Applicant has disclosed grounds for setting aside - 130 - the exparte decree? 2. What remedies are available?

# RESOLUTION

# The laut

135 Section 98 of the Ciuil Procedure Act empowers Court to make such orders as may be necessar;/ for the ends of justice

Order 9 rule 27 of the CPR provides -

"Setting aside decree ex parte against defendant.

In ang case in which a decree is passed ex parte against a defendan| he or she may applg to the court bg which the decree was passed for

- 140 an order to set it aside; and if he or she salisfes the court that the summons was not dulg serued, or that he or she u)as preuented bg ang sufficient cause from appeaing when the suit was called on for heaing, the court shall make an order setting aside the decree as against him or her upon such terms as lo cosls, payment into court, or - 1,45 otherwise as it thinks fit, and shall appoint a dag for proceeding uith the suit; except that uhere the decree is of such a nature that it cannot be set aside as against such defendant onlg, it mag be set aside as against all or ang of the other defendants also." 150 The Applicant under paragraph 3 of her Affidavit in support stated that she was not aware of the proceedings of this case as neither her lawyers or the Respondent or Plaintiff ever informed them about the proceedings in Court whenever the suit carne up for hearing.

From the record, it is clear that the Applicant was represented by Kanduho and Co. advocates. It is also clear that service of the hearing notices was a-lso effected on the same firm by the Respondent. The record does not show whether at any point during the hearing of the case, the Respondent made persona-l service on the Applicant.

Direct service and even substituted service is a good solution to ensuring that litigants who fail to pursue their interest in Court do not use the excuse of negligence of the Advocate to attend Court. The Applicant's advocate had the duty to ensure that the Applicalt was awa-re of the progress of the case and that she was informed of any steps that needed to be taken, this was not done. 160

165 For Court to set aside an exparte judgment, the Applicant has to satisfy Court that she was prevented by a sufficient cause from appearing when the suit was called on for hearing.

Black's Law Dictionary 8th Edition at Page 231 defines "sufficient caltse" to be analogous to "good cause" or "just cattse", which simplg meqns "legallg sufficient reason."

17o In the case of Captain Phillip Onqom us Catherine Nuero OuLoto. SCCA No. 14 of 2OO1 it was held that what amounts to sufficient cause

6v

includes a mistake by an advocate, illness of a party or advocate and ignorance of filing procedure by the party or their advocate.

1,7 5 Unfortunately, it is an acceptable norm that mistake or negligence of Counsel amounts to sufficient cause. However, it has to be established that there was no form of bad faith on the litigant's part and that the Application has not been brought with inordinate delay.

180 It is also an established principle of the law that negligence of Counsel ought not be visited on an innocent litigant and that a litigant ought not to bear the consequences of default by an Advocate unless the litigant is privy to the default or the default results from the failure on the part of the litigant to give the Advocate due instructions. See the case of Zam Nalumansi u Sulaiman Lule SCCA No. 2 of 1992.

In this case, the evidence on record shows that service was only effected on the Applicant's lawyers who failed to exercise due diligence in adjudicating the suit. Infact none of the hearing notices were served on the Applicant. 185

190 It is my finding that the Applicant's Counsel acted negligently in failing appear in Court for the hearing. There is sufficient cause to set aside the exparte judgment.

Unfortunately, this Application has been overtaken by events out of the control of the Applicant. The Court found that there was fraud committed against the Respondent. The culprit was the 2"d Defendant Grace Serwadda who declared that the Applicant's land

6v

title was lost and obtained a special certificate and effected transfer on forged documents.

The Applicant was faulted for negligence and not conducting proper due diligence. On page 8 of the judgment, the judge stated that 'the

- 200 205 Plaintiff has demonstrqted thqt he is still in ocanpation of the suit land. if the l"t defendant had carried out due diligence, she uould haue proued this before she committed her moneA to purchase the suit land. The 7"t defendant should haue duing her search in the land registry found that the statutory declaration that uas used to applg for the special certificate of title had not been signed bg the Applicant. A buger who purchases land from someone uho has a special certificate of title should be keen to know under what circumstances the Duplicate - Certificate got lost and whether the process of applging for a special certificate of title was without ang Jlanu." - 2LO 215 I agree with the observation of the Judge. The Applicant is guilty of negligence and even some degree of naivety/ignorance. The Plaintiff's evidence as analyzed by the Court does not impute fraud on her part. However, this matter is neither an Appeal or review. However, to proceed with re-trial will be a waste of time and would be an injustice to the Respondent. What is important is to put an end to the dispute to enable parties move forward. - I believe that the Applicant is more of a victim of the fraud by the 2"d Defendant. Reinstating the case to be heard shall not change these findings. The outcomes will be the sarne.

ft

The only available pathway to justice is to sue the 2"d Defendant for recovery of her purchase price and for general damages. 220

Furthermore, looking at the decree it is clear that the general damages of UGX 100m and costs have to paid jointly or severally by the Defendants. This implies that collectively or individua-lly each of

the 3 defendants is liable for the whole amount. 225

> Given my lindings that the Applicant was a victim of fraud and her own negligence, I am uncomfortable holding her liable for the whole general damages and costs.

Therefore for the reasons listed above, I dismiss this Application and make the following orders. 230

- 1. The decree to be executed against the Applicant should be for only a third of the general damages and costs. - 2. T}:,.e Applicant pays costs for this Application.

z3s So ordered.

1w ZC,

## Elizabeth Jane Alividza

Judge

24o Date: qlnldc?y

$9|13084$ Date

Ruling delivered on ECCMIS 245

SAINAD

Elizabeth Jane Alividza

${\bf Judge}$

Date ...... $9/10/2024$ 250