Ogavu v Crown Bottlers Ltd (MISC. APPLICATION NO.415 OF 1997) [2000] UGHC 60 (14 January 2000)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE REPUBLIC OF UGANDA AT KAMPALA

# MISC. APPLICATION NO.415 OF 1997

(Arising out of Mengo Civil Suit No. G. K. 851 of 1997) H. C. CIVIL APPEAL NO.6 OF 1999.

TITUS OGAVU. APPELLANT VERSUS

CROWN BOTTLERS LTD. RESPONDENT

### BEFORE THE HONOURABLE MR. JUSTICE G. TINYINONDI

#### JUDGMENT

The Appellant was dissatisfied with the decision and order of the Grade One Magistrate, Mengo Court, delivered on 4/1/1998 dismissing an application to reinstate the case, whereupon he appealed on the following grounds:

- 1. The learned magistrate erred in law when he held that the evidence contained in the 3 affidavits supporting the application for reinstatement of the case did not disclose sufficient cause for not having attended court on 4th December, 1998 . - 2 . The learned magistrate erred in law when he failed to appreciate that the applicant did not attend court just because he was acting on the advice of his advocate and than he himself was blameless.

- 3 . The learned magistrate erred in law when he sought to punish the applicant because of the possible wrongdoing of his advocate. - 4 . The learned magistrate misdirected himself when he decided that lack of documentary medical evidence as part of the advocate's affidavit meant there had been no illness. - 5 . The learned magistrate erred when he assumed that when magistrates are transferred, the Court always automatically puts a new magistrate in place of the old one who automatically takes over the listed. case without even being cause- - 6 . The learned magistrate erred when he failed to appreciate the degree of confusion that ensued the transfer of magistrate. the trial - 7 . The learned magistrate erred when he failed to appreciate the the applicant's counsel establish exactly what was going to happen to the case on the day it had been scheduled for hearing. efforts of in trying to - 8 . It was not fair to have the magistrate who had dismissed the case originally as the same Magistrate before whom the application to set aside the dismissal was fixed.

At the hearing Mr. Katongole Arthur, Counsel for the Appellant,

abandoned the eighth ground. With regard to the first ground, Counsel submitted thus. The three affidavits, sworn by the Appellant, Counsel and Counsel's law clerk disclosed the efforts all of them made from the time they learnt that the magistrate, Mrs . Akankwasa, who was in-charge of the case, had been transferred. Learned Counsel's affidavit disclosed why he was not in Court on 04/02/98 when the case was called before the new Magistrate. That it was a fact that the case was not causelisted as was borne out m paragraphs 7 and 8 of Ms . Catherine Nabirye's reply. That since a causelist would show the court room there was no need for Ms. Catherine Nabirye to go to the Registry to inquire about the courtroom.

Counsel argued grounds numbers two and three together. He submitted double sure about the fate of the case . Meanwhile he and the Appellant waited in Counsel's office. The clerk returned at 11.00 a. m. to say that fresh hearing date. Counsel thereupon advised the Appellant not to come to Court. Counsel submitted that this was borne out in paragraphs 6, 7 , 8/ 9 and 10 of the Appellant's affidavit. That it was noteworthy that even in her affidavit in reply Catherine Nabirye did not attack the Appellant's said paragraphs. that on 2/12/98 he sent his clerk to Mengo Court to make assurance the case awaited a

With regard to the fourth ground Counsel contended that it was difficult to have a medical cert ificate f or a mere feverish condi tion.

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As Counsel for the Appellant submitted that in the past when a Magistrate was transferred it did not mean automatic takeover of the cases heard by the former by the question mark that if the outgoing Magistrate he once handled. That in the present case there was confusion. Otherwise the cause would have the beginning of the the new Magistrate's name. new one. There was a would return to complete the cases week under been cause-listed at for the fifth and sixth grounds,

trial Magistrate failed to appreciate the efforts Counsel and his clerk made which included his falling sick and attending nephew. a sick About ground seven, Counsel for the Appellant submitted that the

In reply, Catherine Nabirye, Counsel for the Respondent stated as follows. While Counsel for the Appellant's reasons were that he had been advised by the Registry staff through his clerk that date would have to be fixed, that while Counsel for the Appellant was attending a sick nephew he also fell sick and that while the Appellant's reason was that his Counsel advised him that a new date was going to be fixed, the issue was whether these reasons amounted to sufficient cause for not appearing as provided for by O.9,r.20 of the Civil Procedure Rules for the suit to be reinstated. Counsel for the Respondent attacked paragraphs 4 and 5 of the affidavit of Counsel for the Appellant where he deponed that the Registry staff advised him that it could not be heard new date would be fixed for not disclosing the names of the said stafr. on 4/11/98 but that a a new Counsel for the Responder.: cited ABDU S. vs. SEKITO: 1977 HCB 24

for the statement that where in an affidavit the deponent does not disclose the source of information the affidavit is defective and cannot be acted upon. That therefore the learned trial Magistrate was correct to rule that the reason of being advised by the Registry staff could not stand. Counsel pointed out further the matter had been adjourned in court in his presence and as such there was no need for his consulting the Registry staff. That in fact Counsel for the Appellant never intended to appear. Learned Counsel quoted NORAH NAKIRIDDE vs. HOTEL INTERNATIONAL: 1997 HCB 85.

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Learned Counsel for the Respondent argued that in paragraph 8 of his affidavit Counsel for the Appellant deponed that he did not appear in Court that day. But in her paragraph 13 of the affidavit in reply Counsel for the Respondent confirmed that Counsel for the Appellant did not appear in court in time because she had left court after business had closed. That her said paragraph 13 was not controverted and therefore it should be presumed that her deposition was accepted. She cited MASA vs. ACHIENG: 1978 HCB for her submission. Counsel further pointed to her paragraph 9 of the affidavit in reply to emphasise that the case was actually causelisted. That on the contrary there was no confusion as alleged by ground number six of the memorandum of appeal.

Counsel for the Respondent further submitted that the allegation of sickness by Counsel for the Appellant was not backed by medical evidence and section 100 of the Uqanda Evidence Act put the burden of proof on him. That in case if he could treat himself and later

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go to court this shows that it was not serious sickness. She further pointed out that the trial Magistrate addressed the issue.

Counsel for the Respondent submitted the affidavit of Counsel for the Appellant disclosed lies in paragraph 3 thereof by alleging that the case was not cause-listed. She asked court to follow BITAITANA vs . E. KANANURA: CA NO.47/1977 (unreported) on this submission.

She attacked the reasons deponed to by the Appellant himself because they were based on the depositions of his Counsel and Counsel's clerk which depositions were full of lies. She surmised that the Appellant himself had no good cause for his absence and chose to corroborate those causes given by his Counsel and his Counsel's clerk. Counsel for the Respondent prayed for dismissal of the appeal with costs.

In the present case the provisions of 0.9,r.20 of the Civil Procedure Rules vest in a lower court discretion to act on application to set aside an order of dismissal for non-appearance of a party. There exist sufficient case law on circumstances in which an appellate court will interfere with the exercise of discretion by a lower court. to my mind offhand include MBOGQ vs . SHAH: [1968] EA 93 where the test enunciated in KIMANI vs MC CONNEL [1966] EA 547 was approved. The test is The cases that come

H In the light of all the facts and circumstances both prior and subsequt-it and of the respective merits of the pa?\*"ies, it

non-appearance". In his ruling the learned trial Magistrate stated

ii Case was fixed at Mengo Court and even if the trial Magistrate was transferred, arrangements would be made to have another take over the case. Hearing was fixed in the presence of the parties in Court with advocates and causelisted. This any word of mouth from the registry staff . There is no evidence that there was any change by the court of the hearing date. The Applicant's Counsel claims to have even come to court later. It is because he was aware of the hearing that he raised the ground of sickness." takes (precedency?) over

This Court called for a copy of the causelist in issue from the I was satisfied with the correctness of the above-quoted statement by the learned trial Magistrate. In view of this clear evidence paragraph 3 each of the three affidavits in support of the notice of motion in the lower court which learned Counsel for the Appellant relied on in ground one of the memorandum of appeal become untruthful. I so hold. An is bound to fail . See: BITAITANA's case (ante) . lower court. It was supplied. application based on a false affidavit

With regard to grounds number two and three my finding that Counsel for the Appellant's affidavit contained falsehoods about the none causelisting of the case automatically means that even the to lies initiated by his Counsel . complain that the learned trial Magistrate "punished him for wrongs In so doing he inflicted injury on himself and cannot now be heard to Appellant himself swore

committed by his advocate". I would even go further and apply the The Appellant is bound by the authorised acts of his Counsel. principles of agency to his case.

Ground number four of the memorandum of appeal complained that the learned trial Magistrate misdirected himself when he decided that lack of documentary medical evidence meant that the advocate did not fall sick. The learned trial Magistrate considered this ground and held that no sufficient evidence was called to support Counsel's allegations. The learned trial Magistrate did not allude to to believe. He simply wanted sufficient evidence. "medical documentary evidence" as Counsel would want this Court

On the whole I exercised his discretion. He did not misdirect himself in any way and he arrived at a correct decision. This appeal therefore must be dismissed with costs to the Responcl^nt. I order accordingly. find that the learned trial Magistrate properly

G. Tinyiridhdi U JUDGE 14/01/2000