Ongom v Nyero Owota (MISCELLANEOUS APPLICATION NO. 1081/1999) [2000] UGHC 61 (15 March 2000)

Full Case Text

## THE REPUBLIC IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 1081/99 (Arising from H. C. C. S. NO?980/98)

Lt. Philips Ongom Applicant

versus

Catherine Nyero Owota Defendant

Before: The Hon. Principal Judge - Mr. Justice J. H. Ntabgoba

## RULING

Miscellaneous Applications numbers 1081 and 1234 both arising from H. C. C. S. No. 980 of 1998 came before me for hearing them together. The first application sought leave to appeal against my decision given in the said HCCS No. 980/98 on 18/8/99. In that decision, I dismissed an application of the applicant/defendant for an order setting aside the ex pane judgement passed in the said HCCS No. 980/98 dated 29-6.99.

The second application seeks a stay of execution of the decree and orders in the said HCCS No. 980/98 *"pending die determination ofdie Defendant's/Applicant's intended appeal orfurther orders ofthis Honourable Court "*

**i**

The grounds in support ofthe application for leave **(01**to appeal appear in the affidavit ofthe applicant, Captain Philip. Ongom, swom in support ofthe application but they are also summarised in the motion application as follows:- *" .*

- 1. That the defendant's/applicant's Counsel and professional advisors, M/s Ladwar, Oneka & Co. Advocates failed and/or refused to take the necessary legal steps in this suit by, inter alia, not filing a W. S. D. in the suit within the statutory period or at all; - **9** That the applicant has a good defence to the suit tn that - **(1)** the plaintiffi'respondent sent him the Uganda Shillings equivalent of Pound Sterling 13,000= purely as financial assistance: - (ii) it was never agreed between the plaintiff respondent and the applicant/defendant that the latter was to refund the said money to the former with profit and interest. - Uii) that when the plaintiffi'respondent sent the applicant/defendant the money, it was purely for the latter to generate income to help family members. - (iv) accepted it. that had the applicant/respondent known that such harsh terms were attached to the said financial assistance, he would not have - (v) that when the plaintiffi'respondent shocked the applicant/defendant with a demand tor the refund of the money "1 was extremely surprised by her changed conduct but I nevertheless was able to immediately raise UG. Shs 10,000,000/= which she rejected."

**2**

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the

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-fell " /that the applicant and respc the latter is a sister ofthe fo already paid in this He.. .. c-fShs. 19,150,000/= which when added to Shs. 10,000,000/= being the expense of clearing and transportation of the respondent's personal effects from Entebbe International Airport (at he/6wn instance and request) discharges all the amount due from me to the , plaintiffrrespondent as per the acknowledgement as annexture -C'" justness associates.but . I wife "and I have

> "That the fault and negligence of the said lawyer, Mr. Walter Okidi Ladwar whom I relied on for professional guidance and service resulted in the default judgement and the subsequent ex pane judgement being entered and delivered respectively against me before my side of the case was heard by this Hon.

Court."

As can be seen, the above grounds are the same that had been advanced by the applicant in the application to set aside the judgement. They are substantially the same grounds relied on by the applicant in the application for stav of execution pending his intended appeal. He contends that he has a strona case. But the fact is that he had not put in a W. S. D. when served through his Counsel who had entered appearance for him.

[n mv ruling against his application to set aside the ex parte judgement entered against him in default of filing a W. S. D. and the consequent orders

**3**

**1**

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upon hearing the plaintiff/respondent in formal proof, I stated that the applicant/defendant was not without remedy. I said that he could have proceeded against his lawyer in negligence to indemnify him for the judgement and order against him. Mr.'Omunyokol, informed Court from the Bar that his client could not bring a suit against Mr. Ladwar his former lawyer because they are next door neighbours at home and he, the applicant, would not like to "'bring down the lawyer" to use Counsel Omunyokol's words. Surely, it is only just that the former lawyer suffers than the plaintiff-respondent suffering when she did all that was necessary' for her to do in the suit. The strong case of the applicant expressed in his affidavit would have constituted the contents of his W. S. D. but not as grounds for either setting aside a proper judgement or for seeking leave to appear or for staying execution.

**I**

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**1 A '**

I cannot even think that it holds water to argue that the execution of the Decree or orders in HCCS. No. 980/98 will cause harm to the applicant/defendant. Of course any judgement debtor is bound to be hurt by the orders of execution against him. I still insist that to avoid such harm the applicant should have proceeded against his negligent lawyer for being indemnified.

that: [ was referred by Mr. Omunyokol to the case ofJamnadas v Sodha - vs - Gordhandas Hempaj, C. A. No. 57 of 1952, where it was decided by Ainiey J,

**4**

## **[04**appeared but not filed a W. S. D.,

- **(i)** Where a defendant who has and has a good defence on the merits, he is wholly at the discretion ofthe Court as to whether he may.be heard in the case. - (ii) Where a defendant who has: appeared, but not filed a W1S. D., and had a good defence on the merits, unless the defendant is simply trying to delay the action, the Court should normally exercise its discretion in favour of the defendant and let him put forward a defence, but penalise the defendant severely by way of costs.

**i Q>**

In that case the judge's pertinent passage is at p.l 1 as follows:

"The nature of the action should be considered; the defence if one has been brought to the notice of the Court, however irregularly, should be I considered; the question as to whether the plaintiff can be reasonablycompensated by costs for any delay occasioned should be considered: and finally I think it should always be remembered that to deny the subject a hearing should be the last resort of a Court..."

discretion. Whereas I agree with the words of the Judge in that case, it should be remembered, as the judge opened those words, that the nature of the action should be considered: I think that it is crucial when a judge is exercising his

**5**

**1**

Now in the case above cited by Nir. Omunyokol, the defendant showed all the intention to put in a defence. He did not wait until after the judgement and then seek to put in a defence either on review or on appeal. Besides, there was no obvious alternative remedy available to him. In this case, the defendant s lawyer did not try at all to put in a defence, and whereas the applicant may argue that he was not personally to blame, it was his lawyer to blame. If that be the case, then why should the plaintiff now suffer the inconvenience not brought by her nor by her lawyer. In the exercise of my wide discretion given by order 9 of the Civil Procedure Rules, I could not see why the plaintiff/respondent should suffer the inconvenience caused by the opposite party s lawyer, but also bearing in mind that the applicant could have sought remedy from his lawyer the guilty party. I must, in this regard, refer to the words of Sir Clement De Le Stang V. P of the East African Court of Appeal in the case ofMbogo & Anor - vs - Shah [1968] E. A. 93 at p.94, when he was speaking about a Judge's exercise of discretion. He said:-

*{OS'*

"Order 9r. 10 gives the High Conn an unfettered discretion to set aside or vary an ex pane judgement (Evand - vs - Bartlam [1937] 2 All - E. R. (646) and it was in the exercise of his discretion that the learned judge refused the application. 1 think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its discretion is clearly wrong *because it has misdirected itselfor because it has acted on matters on which it should not have acted or because it hasfailed to take into consideration matters which it should have taken into consideration and in.doing.so arrived-at a~wrong conclusion:.*

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Now, I have looked at the grounds in both the two applications. I have not seen-any allegation that in the exercise of my discretion, I misdirected myself, or that I have acted on matters on which I should not have acted, or that I have failed to take into consideration matters which l' should have taken into consideration, and that in my decision I arrived at a wrong consideration.

*I Ob*

[f, as Sir Clement De Lestang said in the case I have cited (Mbogo - vs - Shalt) the Court of Appeal will not or should not interfere with the exercise of the discretion of the judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong-in the exercise of his discretion and that as a result there has been misjustice, then shouldn't the person seeking leave to appeal, show his intended appeal i alleging the above wrong exercises of discretion? I think he should and a draft appeal was necessary to show that wrong exercise of discretion was on of the grounds of appeal.

I have been told that the applicant intends to appeal. That is well and good, but as far as I am concerned, it is not enough for the applicant to swear an affidavit deponing that he has a strong case without showing how strong iris. Surely a copy of the intended appeal was necessary to show the strength of *,* the case. 1 do not even think that it is a plausible ground to state that if execution is levied against him, the appellant will suffer. Of course he must suffer ifjudgement is made against him. No judgement debtor will pay the debt laughing.

*I*

**I o**

I have considered the case of Jamnadas V. Sodha - vs - Gordhandas Hempj (Supra) and I have advised that the applicant need not suffer if he proceeded against his former advocates for being indemnified. I have not seen the intended appeal to decide whether it has a chance of success. I cannot allow a party who put himself out of the jurisdiction of this Court to use the same jurisdiction to appeal to the Court of Appeal.

I accordingly dismiss these applications with costs to the respondent.

J. H. Ntabgoba

Principal Judge $15.3,200$

This ruling is read in chambers in the presence of Mr. Omunyokol for the applicant, the applicant himself and Mr. Edward Kangaho, Court Clerk.

$\bf{S}$

J. H. Ntabuoba

Principal Judge $15/3/2000$

化合物型五色机激动

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MEANS: GO is the exhibit marked"......... "colorred to in the $-1$ $-1$ ..... sworn declared culors me this they Meud DOO O. THE REPUBLIC ...- UGANDA IN THE HIGH COURT OF UBANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 1081 OF 1999 [ARISING OUT OF HIGH CIVIL SUIT COURT NO. 980 OF 1998] CAPTAIN PHILLIP ONGOM DEFENDANT/APPLICANT } **VERSUS CATHERINE NYERO OWOTA** PLAINTIFF/RESPONDENT } **ORDER** THIS APPLICATION coming on this day for final disposal in the presence of George Omunyokol for the Applicants and Flavian Zeija for the Respondents IT IS ORDERED THAT the application be and is hereby dismissed with costs to the Respondent. GIVEN under my hand and the Seal of Court this ....................................

## DEPUTY REGISTRAR

We approve

Omunyokol'& Co. Advocates COUNSEL FOR APPLICANTS

EXTRACTED BY: Kwesigabo, Bamwine and Walubiri Advocates Plot 15 Jinja Road P. O. Box 21161 Tel: 341295/6 Fax: 343168 **KAMPALA**

RECEIPT No. TAR TO JUDY TARY Far SEC COURTS OF JUDICATURE - UGANDA QU. Z.70