Skands General Machandise Limited v Makumbi (Civil Appeal 72 of 2018) [2024] UGHCCD 148 (6 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) CIVIL APPEAL NO. 72 OF 2018 (ARISING FROM MISC. APPLICATION NO. 809 OF 2017) (ALSO ARISING ROM CIVIL SUIT NO. 756 OF 2015) SKANDS GENERAL MERCHANDISE LIMITED ::::::::::::::::::::::: APPELLANT VERSUS MAKUMBI PATRICK ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

#### **Introduction**

[1] The appellant being dissatisfied with the ruling and orders of **Her Worship Nuwagaba Stella**, Principal Magistrate Grade One, delivered on 11th April 2018 at Mengo Chief Magistrates Court, brought this appeal seeking orders that the ruling and orders of the trial magistrate dismissing the appellant's Miscellaneous Application No. 809 of 2017 be set aside, that Civil Suit No. 756 of 2015 be reinstated, heard denovo and determined on its own merits before another magistrate; and that the appeal be allowed with costs both in this court and the lower court.

## **Background to the Appeal**

[2] The appellant instituted a summary suit No. 756 of 2015 against the respondent for recovery of UGX 18,200,000/= arising out of breach of a contract for hire of a cutting machine known as MO. 1 at a monthly fee of UGX 2,600,000/=. It was alleged that the respondent had failed to pay the agreed charges for a period of seven months, totaling to the sum of UGX 18,200,000/= which was claimed in the suit. Summons on a specially endorsed plaint was

issued on 30th June 2015 but was not served. By letter dated 7th September 2015, Counsel for the plaintiff applied for issuance of fresh summons which was issued by the court on 22nd September 2015. On 4th November 2015, the plaintiff applied for judgment but the court was not satisfied that the service of process was effective. The court directed counsel for the plaintiff to take out substituted service which the advocate did not do and the suit was dismissed by the court on 31st March 2016. On 12th December 2017, the plaintiff (now appellant) engaged other lawyers who filed Misc. Application No. 809 of 2017 seeking reinstatement of the dismissed suit. The application was dismissed by the trial court, leading to the present appeal.

#### **Representation and Hearing**

[3] At the hearing, the appellant was represented **Mr. Lwasa Stephen** from M/s IBC Advocates. The respondent neither appeared nor was he represented at the haring of the appeal despite sufficient evidence of service of hearing notices on various occasions. The Court allowed the hearing of the appeal to proceed ex parte and adopted the written submissions filed by counsel for the appellant and served onto the respondent. I have taken the appellant's submissions into consideration in the determination of the appeal.

#### **Grounds of Appeal**

[4] The appellant raised five (5) grounds of appeal in their Amended Memorandum of Appeal namely;

a) *The learned trial Magistrate erred in law and fact when she wrongly and erroneously concluded that the appellant was privy to the mistake of her former counsel in failing to prosecute the main suit thereby occasioning a miscarriage of justice.*

*b) The learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence as a whole and apply the law to the facts in respect of* *applications for reinstatement of suits brought under Order 9 rule 23 of the CPR thereby coming to a wrong decision.*

*c) The learned trial Magistrate erred in law and fact when she wrongly and erroneously concluded that the appellant's application for reinstatement was not brought within reasonable time thereby coming to a wrong decision and occasioned a miscarriage of justice.*

*d) The learned trial Magistrate erred in law and fact when she refused to allow the appellant's counsel to file written submissions addressing all the issues that had arisen during the hearing thereby occasioning a miscarriage of justice.*

*e) The learned trial Magistrate erred in law and fact when she failed to make a ruling on the preliminary points of law raised during the hearing in her ruling thereby occasioning a miscarriage of justice.*

## **Duty of the Court on Appeal**

[5] The duty of a first appellate court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. See: *Section 80 of the Civil Procedure Act Cap 282*. This position has also been re-stated in a number of decided cases including *Fredrick Zaabwe v Orient Bank Ltd CACA No. 4 of 2006*; *Kifamunte Henry v Uganda SC CR. Appeal No. 10 of 1997*; and *Baguma Fred v Uganda SC Crim. App. No. 7 of 2004*. In the latter case, Oder, JSC stated thus:

*"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court"*.

## **Consideration of the Grounds of Appeal**

[6] Counsel for the appellant argued grounds 1 & 2 together and the other grounds separately. I will adopt the same approach.

*Ground 1: The learned trial Magistrate erred in law and fact when she wrongly and erroneously concluded that the appellant was privy to the mistake of her former counsel in failing to prosecute the main suit thereby occasioning a miscarriage of justice.*

*Ground 2: The learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence as a whole and apply the law to the facts in respect of applications for reinstatement of suits brought under Order 9 rule 23 of the CPR thereby coming to a wrong decision.*

#### **Submissions**

[7] Counsel for the appellant relied on the cases of *Mugumya v Total (U) Ltd MA No. 28 of 2013* and *Twiga Chemical Industries v Viola Bamusedde CACA No. 9 of 2002*, among others, to argue that mistake of counsel cannot be visited on the innocent litigant. Counsel submitted that, before the trial magistrate, sufficient cause was clearly disclosed in the affidavit in support of the application in the form of negligence of counsel. Counsel stated that the appellant's former lawyers neither fixed the suit nor informed the appellant about the progress of the case and never appeared in court to prosecute the case which led to its dismissal. Counsel argued that the appellant having engaged another law firm to represent them in the suit, the conduct of the former lawyers amounted to nothing but negligence of counsel which should not have been visited on the innocent appellant. Counsel argued that the trial magistrate failed to properly evaluate the evidence as a whole and erroneously applied the law to the facts in an application for reinstatement in as far as she concluded that the appellant was privy to the mistake of counsel in failing to pursue the main suit.

## **Determination by the Court**

[8] The original suit was dismissed by the court under Order 9 rule 17 of the CPR for non-appearance of both parties. Suits dismissed under the said rule may be reinstated by the court upon application by the plaintiff under Order 9 rule 18 CPR, which provides as follows;

*"Where a suit is dismissed under rule … 17 of this Order, the plaintiff may, subject to the law of limitation, bring a fresh suit or he or she may apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her … nonappearance, … the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit"*.

[9] In the application for reinstatement before the trial court, the applicant (now appellant) relied on the ground of sufficient cause and specifically mistake or negligence of counsel who failed to follow up the matter in court and omitted to inform the appellant of the status of the matter. The learned trial Magistrate was not satisfied that the applicant had raised sufficient cause since, in her view, the applicant ought to have made personal follow up on the matter. The Magistrate thus found that the applicant was privy to the negligence of their counsel.

[10] What amounts to sufficient cause has been a subject of a plethora of court decisions. In the case of *Kyobe Senyange v Naks Ltd [1980] HCB 31*, it was stated that for sufficient cause to be disclosed, the court should be satisfied not only that the applicant had a reasonable excuse for failing to appear but also that there is merit in his or her defence to the case. In *National Insurance Corporation v Mugenyi and Company Advocates [1987] HCB 28,* the Court of Appeal held that the *"…* main test for reinstatement of a suit is whether the applicant honestly intended to attend the hearing and did his best to do so. Two other tests were namely the nature of the case and whether there was a prima facie defence to that case". In *Nakiride v Hotel International Ltd [1987] HCB 85*, it was held thus;

*"In considering whether there was sufficient cause why counsel for the applicant did not appear in court on the date the application was dismissed, the test to be applied in cases of that nature was whether under the circumstances the party applying honestly intended to be present at the hearing and did his best to attend. It was also important for the litigant to show diligence in the matter.''*

[11] In this case, the appellant in the trial court relied on the ground of mistake or negligence of counsel as constituting sufficient ground for reinstatement of the dismissed suit. The appellant averred that they had instructed their former lawyers of M/s Ayebazibwe – Makorogo & Co. Advocates to file and prosecute the suit but the lawyers neither fixed the suit nor contacted the appellant after instituting the suit and never appeared in court to prosecute the case. Counsel for the appellant argued that the conduct of the former lawyers amounted to mistake or negligence of counsel which, under the law, ought not to be visited upon the litigant.

[12] I have before expressed the view that although mistake by an advocate, even when negligent, may be accepted as sufficient cause, it has to be understood that for the principle to apply, the litigant must be 'innocent' in the circumstances that led to the dismissal of the matter. What this means is that the applicant, on their part, must have taken due diligence as to be in a position to rely on the advocate's professional skill and diligence. In a situation where the litigant makes no contact with their advocate for years, it would be wrong for the litigant to claim that they were 'innocently' sitting home and waiting for the advocate to tell them the result of the case in court. See: *Akankwatsa Sam v Centenary Rural Development Bank & Others, HCMA No. 674 of 2022*.

[13] In the present case, although the applicant (now appellant) indicated that they had instructed their former lawyers to prosecute the matter, there is clear inference that they were not in constant touch with their lawyers. There is no explanation as to why it took a period of over one year and eight months from the time of dismissal of the suit to the time of filing the application for reinstatement. The only possible explanation is that after instruction of the said lawyers, the appellant sat back and relaxed awaiting the result of the suit. Such is not conduct of a vigilant litigant. Rather, it is an act of indolence. It does not leave the litigant innocent of the negligence of their lawyer. As such, the principle of negligence of counsel not being imputed onto an innocent litigant would not apply in those circumstances.

[14] I have further expressed the opinion that the practice of parties engaging lawyers and then sit back, maintaining no communication with their lawyers, ought not to be encouraged. Parties must learn to make their lawyers accountable. If the lawyers do not follow up the parties' instructions, it is the parties' duty to replace them. If they lie about the position of the case, litigants have the option of taking their lawyers on for disciplinary action before the Law Council. The courts cannot be expected to tolerate the ping-pong game of parties and lawyers not attending to court, cases get dismissed, then the party engages another lawyer claiming it was a mistake of the previous lawyer which should not be visited on an "innocent" litigant. The question is whether such a litigant is, indeed, innocent in the given circumstances? In absence of due diligence on the part of the litigant, my considered view is that such a litigant is not innocent of the circumstances that led to the dismissal of the case. See: *Akankwatsa Sam v Centenary Rural Development Bank & Others (supra)*. [15] In the instant case, it is clear from the record of the trial court that, beyond engaging advocates to file and prosecute the matter, the appellant exhibited no diligence in following up the matter. Although I may agree that at the level the case was, the appellant's representatives were not personally needed in the court, they nevertheless had a duty to demand accountability from the lawyer. In that regard, I would agree with the view of the trial magistrate that the conduct by the appellant amounted to being privy to the default by their advocates. I would add, therefore, that the circumstances that led to the dismissal of the suit included the appellant's indolence. In such a situation, the ground of mistake or negligence of counsel would not be available to the appellant for the foregoing reasons. The trial Magistrate, therefore, rightly found that the appellant had not disclosed sufficient cause for reinstatement of the dismissed suit.

[16] Be that as it may, the superior courts have pronounced themselves on the need by the courts to focus on the interest of justice and only deny parties a hearing in the most extreme of cases. In *National Enterprises Corporation v Mukisa Foods, Court of Appeal Civil Appeal No. 42 of 1997,* the Court held that denying a subject a hearing should be the last resort. In *Banco Arabe Espanol v Bank of Uganda [1999] UGSC 1,* the Supreme Court held that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and lapses or errors should not necessarily debar a litigant from pursuit of his rights.

[17] In light of the above legal position, and given that the dispute over the alleged breach of contract still existed, the trial court ought to have exercised discretion to allow the reinstatement of the dismissed suit. The lapse by the appellant could have been adequately catered for in terms of costs. Upon these premises, I would allow grounds 1 & 2 of the appeal and would return an order allowing reinstatement of the main suit before the trial court.

*Ground 3: The learned trial Magistrate erred in law and fact when she wrongly and erroneously concluded that the appellant's application for reinstatement was not brought within reasonable time thereby coming to a wrong decision and occasioned a miscarriage of justice*.

## **Submissions**

[18] Counsel faulted the trial magistrate for considering the issue of delay in filing the application for reinstatement as fundamental and argued that there is no timeframe for bringing an application for reinstatement under Order 9 rule 18 of the Civil Procedure Rules. Counsel argued that the requirement is that the application must be brought within reasonable time and that what amounts to reasonable time is a question of fact and each case must be decided on its own set of facts. Counsel submitted that whereas the trial court relied on the case of *Re Dhabulo (1997) HCB 77* in which the court observed that 1 year and 2 months was inordinate delay, the circumstances of the present case were different and the period of one year and eight months taken before filing the application for reinstatement should have been considered differently. Counsel cited the case of *Rawal v The Mombasa Hardware Ltd* where the court re-instated a suit after a period of 3 years. Counsel concluded that the trial court ought to have set aside the dismissal of the appellant's case.

## **Determination by the Court**

[19] It is true that the question as to whether an application for reinstatement of a dismissed suit has been brought within reasonable time or without inordinate delay, is a question of fact requiring the court to look at the facts and circumstances of each given case. In the instant case, I have found herein above that the fact that it took the appellant one year and eight months before establishing that their lawyers had abandoned the case, was an act of indolence. Such circumstances would point to inordinate delay on the part of the appellant. Nevertheless, I have gone ahead and found that the interest of justice would have dictated that the appellant is given opportunity to present their case on the merits. If the application for reinstatement had been granted by the trial court, the respondent stood to lose less since he had himself not made any court attendances by the time of the impugned dismissal. In my view, the trial magistrate ought to have ignored the delay of one year and eight months and focused on the interest of justice in the matter. For this reason, I would find merit in ground 3 of the appeal.

*Ground 4: The learned trial Magistrate erred in law and fact when she refused to allow the appellant's counsel to file written submissions addressing all the issues that had arisen during the hearing thereby occasioning a miscarriage of justice*.

### **Submissions**

[20] Counsel for the appellant faulted the trial magistrate for refusing to grant an adjournment so as to make an informed rejoinder and formally reply to the preliminary objections raised by the respondent. Counsel submitted that he had informed the court that he had just been served with the respondent's affidavit in reply while in court and had prayed to file written submissions since he had not filed an affidavit in rejoinder. Counsel further argued that the respondent's counsel had raised preliminary points of law which the appellant's counsel was not ready to respond to, having been taken by surprise; but the trial magistrate compelled the appellant's counsel to make a reply in court yet counsel had made a prayer to make written submissions addressing all issues raised by the respondent's counsel. Counsel concluded that the trial court's failure to grant the appellant's counsel an adjournment so as to file an affidavit in rejoinder and written submissions addressing all issues that had arisen during the hearing occasioned a miscarriage of justice.

## **Determination by the Court**

[21] The court has discretion to grant or refuse an adjournment on such terms as the court deems fit. See: *Order 17 rule 1 CPR* and *rules 5 & 6 of The Constitution (Adjournments for Courts of Judicature) (Practice) Directions 2019*. What comes out, however, under the said legal provisions is that the party seeking an adjournment shall state the reasons for the adjournment and the court shall make a decision granting or refusing an adjournment. In this case, although counsel for the appellant made an application for adjournment to enable him make and file written submissions, the court made no pronouncement to his application. When counsel for the respondent came in to respond, instead of replying to the application for adjournment and filing of written submissions, counsel raised preliminary objections and also argued the merits of the application. In rejoinder, counsel for the appellant reiterated his application to make written submissions but upon the silence of the court, he also made arguments in support of the application.

[22] The above circumstances indicate that the trial court messed up the trial. The court ought to have clearly indicated that it had rejected the application for adjournment or for filing of written submissions so that the applicant's counsel was certain as to whether to argue the application or to await an order for filing of submissions. Looking at the record, the applicant's counsel did not make any initial submissions in support of the application. He only introduced the application and made a request to be allowed to file written submissions. After the mixed reply by counsel for the respondent, counsel for the applicant was compelled to make a half-hearted rejoinder. Procedurally, the trial Magistrate took a wrong approach which would tantamount to a mistrial. I find that the appellant's right to a fair hearing was adversely affected by this procedural error by the trial Magistrate. I find merit in ground 4 of the appeal.

*Ground 5: The learned trial Magistrate erred in law and fact when she failed to make a ruling on the preliminary points of law raised during the hearing in her ruling thereby occasioning a miscarriage of justice*.

#### **Submissions**

[23] It was submitted by Counsel for the appellant that the respondent's counsel raised points of law to the effect that the appellant had not extracted an exparte order it was seeking to set aside; that the appellant did not bother to extract a record of proceedings in Civil Suit No. 756 of 2015; and that the annexure to the affidavit in support had not been verified by the commissioner for oaths as required under the law. Counsel argued that the court ought to have first resolved those points of law before proceeding to determine the merits of the case.

# **Determination by the Court**

[24] It is clear from the record that counsel for the respondent raised preliminary objections to which counsel for the appellant made a reply in his half-hearted rejoinder as herein before pointed out. However, in her ruling, the learned trial Magistrate totally made no mention of her view on the preliminary points of objection. She just proceeded to consider the application on merit and rejected it. As a matter of procedure, where points of law are raised in a matter, the court ought to make a pronouncement over the same. Before disposing of such points of law, the court would not be in a good place to consider and determine the merits of the matter before it. The learned trial Magistrate, therefore, ought to have made due consideration over the preliminary points of law and if they were immaterial, she was bound to make a finding to that effect. I therefore agree that the learned trial Magistrate adopted an erroneous approach; which action carried the potential of occasioning a miscarriage of justice in the matter then before the court. I also find merit in ground 5 of the appeal.

# **Decision of the Court**

[25] In all, therefore, the appeal succeeds on all the grounds and is allowed with orders that;

a) The ruling and orders of the trial Magistrate in Miscellaneous Application No. 809 of 2017 are set aside.

b) Civil Suit No. 756 of 2015 is reinstated and shall be fixed for hearing and determination on its merits by the trial court.

c) Given the unfortunate delays this matter has suffered, let the trial court give it expeditious consideration.

d) The costs of the earlier proceedings in the lower court and of this appeal shall abide the eventual outcome of the suit.

It is so ordered.

*Dated, signed and delivered by email this 6th day of September, 2024.*

**Boniface Wamala JUDGE**