Tumwine v Katembeya (Miscellaneous Application 99 of 2022) [2023] UGHC 281 (11 July 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0099-2022

(Arising from HCT-05-CV-CS-0058-2018) BERNARD TUMWINE !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! VERSUS

## KATEMBEYA STANLEY ::::::::::::::::::::::::::::::::::::

### **BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### **RULING**

#### **Background**

This was an application brought by Notice of Motion seeking $\lceil 1 \rceil$ for an order to set aside this court's decree and execution and the arrest warrant issued against the Applicant be vacated. The Applicant also sought for leave to be granted to him to formalize or file his defence out of time.

The grounds upon which this application was based were briefly set out in the motion as:

- 1. On the 21st day of January 2020, an ex-parte judgment was entered against the Applicant. - 2. That the Applicant was and still is a successful prosecutor of M. A. no. 192 of 2018 where leave was granted by this honourable court for leave to appear and defend.

$\forall$

3. That the Applicant instructed counsel who negligently did not file a defence within the period so specified by this court unknown to the Applicant.

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- 4. That sometime in February 2022, the Applicant took steps to prosecute his matter only to be informed that the matter was on a Notice to show Cause why execution should not proceed, hence instructing new counsel to handle the matter accordingly. - 5. That the Applicant was given leave to file the defence and due to negligence of then counsel at Greystone Advocates, the applicant's defence was not formally filed in court. - 6. That the Applicant can be arrested anytime on a warrant of arrest issued by this court arising from a default judgment issued by this court, implying the Applicant's rights to be heard will have been failed by the court process. - 7. That the Applicant is in danger of being arrested and committed to civil prison basing on negligence of counsel, yet the applicant has a plausible defence with a high likelihood of success. - 8. That it is fair and just that this application is granted, the decree and execution is set aside and the Applicant be allowed to formalize the filing of his defence.

The application was supported by an affidavit sworn by the Applicant and opposed by an affidavit sworn by the Respondent. The Applicant filed a further supplementary affidavit in the matter. I have considered the content of all affidavits in coming to this ruling.

#### Representation.

$[2]$ The Applicant was represented by M/s Quest Advocates while the Respondent was represented by M/s Ahimbisibwe & Agaba Co.

Advocates. Both counsel filed written submissions in the matter which I have considered.

# Analysis and decision.

Before I go into resolution of this application, it is incumbent I $[3]$ lay down the brief facts leading to this application.

On 16th August 2018, the Respondent herein filed HCT-05-CV-CS-0058-2018 against the Applicant herein by way of a summary suit brought under Order 36 rules 2 and 3 of the Civil Procedure Rules. On 17th September 2018, the Applicant herein filed HCT-05-CV-MA-0192-2018 seeking for unconditional leave to appear and defend HCT-05-CV-CS-0058-2018. This court on 4th December 2019 allowed the application and ordered the Applicant herein to file a defence within 14 days from the date of the ruling. This would have been by 18th December 2019. On 6th January 2020, counsel for the Respondent wrote to this court informing it that the Applicant had not filed a defence per the orders of this court and further sought a default judgment in the matter. The learned Deputy Registrar of this court, on 17th January 2020 granted the request for a default judgment and a decree for UGX 80,000,000/= was extracted on 21st January 2020. On 14th September 2020, a plaintiff's bill of costs was taxed and execution against the Applicant commenced. On 14th April 2022, the Applicant filed the instant application. While the instant application was still pending, on 16th June 2022, this court issued warrant of arrest against the Applicant who on 11th July 2022 was arrested and

committed into civil prison for satisfaction of the decree. The record shows that on 14th July 2022, the Applicant and Respondent entered into a consent to pay the sum owed within four months. An interim consent order arising from HCT-05-CV-MA-0194-2022 entered by this court on that day. On 19th September 2022 counsel for the Respondent wrote to this court informing it that the Applicant had failed to honour the terms in the consent and sought to have the warrant of arrest renewed. The learned Acting Deputy Registrar of this court on 26th September 2022 renewed the warrant of arrest against the Applicant.

Execution of the fruits of litigation by a successful litigant should $[4]$ not under normal circumstances be delayed by a court of law save for good reason. For good reason, a court of law may stay execution of its orders or decrees or even set aside pending execution. (See Livingstone Nsumba Membe vs Fibiano Mayoga [2009]1 HCB 82.

It should be noted from the onset that there is no specific statutory law governing applications of this nature just like those for stay of execution of decrees. (See Francis M. Micah vs Nuwa Walakira (1992-93) HCB 88 and Tropical Commodities Suppliers Ltd and Ors vs International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331 per Ogoola J at pages 332 to 335).

It is for this reason that the Applicant in the instant application brought the application under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act. The underlying principle in those

two provisions of law is the power of this court to use its discretion for the ends of justice to be met.

Discretion, when applied to a court of justice, means [5] sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. (See R vs Wilkes (1770) 4 Burr 2527 per Lord Mansfield).

Discretion must be exercised according to common sense and according to justice. (See Gardner vs Jay (1885) 29 Ch 50 per Bowen L. J and the Supreme Court of India decision in Parimal vs Veena alias Bhart (2011) 3 SCC 345).

I have examined the application before me and I do not think that this is a case where this court ought to exercise its discretion in favour of the Applicant, this is so because of the following reasons;

From the record, the Applicant who was so eager to appear and <table>

[6] defend HCT-05-CV-CS-0058-2018 applied for leave to appear and defend it vide HCT-05-CV-MA-0192-2018 which was granted on 4th December 2019 with a condition that he would file a defence within 14 days from that date. This should have been by 18th December 2019. However, from his averments in the instant application, it took him up to "sometime in February 2022" which is a period of close to a whole year to follow up on the matter at which point he noticed that it was on a "Notice to show cause why execution should not proceed" $\mathbb{F}$ position.

The applicant further avers that it was for reason of the negligence of his former advocates, Greystone Advocates that the defence was not filed within the court ordered 14 days leading to the process of execution which he now wants this court to set aside and be allowed to file a defence.

$[7]$ It has become common practice for indolent litigants and lawyers to raise mistake, error, oversight or negligence of counsel as a reason as to why they failed to comply with court directions, orders or legal processes.

Whereas I acknowledge the position of the law that a mistake, error, negligence or oversight by counsel cannot be visited on the litigant. (See Godfrey Magezi vs Sudhir Ruparelia SCCA No. 10 of 1995, Banco Arabe Espanol vs Bank of Uganda, SCCA No. 8 of 1998 and Capt. Phillip Ongom vs Catherine Nyero Owota SCCA No. 14 of 2001).

Mistake, error, negligence or oversight of counsel is not a magical wand in the hands of an indolent litigant to flaunt their obligations regarding case management. Merely insinuating that there was a mistake of counsel while an Applicant is indolent will not in my view fall within the purview of this legal rule. (See for example in Kananura Kansiime Andrew vs Richard Henry Kaijuka Supreme Court Reference No. 15 of 2006).

In Marumba Ranching Co-operative vs Attorney General HCT-05-CV-MA-0030-2022, I emphasized the duties of litigants and advocates in case management. In that case, on the duties of advocates, I held that:

"An advocate is in service to various masters because of his or her unique position in society. As an advocate does a duty to himself or herself, clients, courts, opposing counsel, opposing parties and the wider community or nation. (Per Murangira J in Kaala v Nangendo (Civil Miscellaneous Application 59 of 2019)) ...advocates are required to act diligently towards their clients." In regards to the litigant, I held that:

"The litigant owes a duty to him or herself to be vigilant of his or her own rights and is expected to be equally vigilant about the judicial proceedings which were initiated at his or her instance.

The litigant, therefore, ought not to be permitted to throw the entire blame on the head of an advocate and thereby disown him or her at any time just to seek a relief from court.

The litigant ought to ensure to personally appear in court or ensure the appearance of his or her duly instructed counsel when their case is called on by the court."

In Eternal Church of God vs Sunday Kasoke Joseph HCT-01-CV-MA-0011-2016 it was observed by this court that:

"The issue of not visiting the negligence of Counsel on the litigant in my view is a mere excuse by new advocates to get themselves clients, the litigant just as his advocate needs to know the hearing

dates of his case. Equity aids the vigilant as the maxim states. It is not only the duty of the advocate to show up in Court but the litigant too. Litigants ought to be vigilant and follow up on their cases" [per Musene J (RIP)]

[8] in the instant case, it beats common logic for the Applicant to claim that he instructed counsel to file a defence on his behalf then follow up on their matter after close to a year when there is eminent threat of execution upon them. In the circumstances before me, this court cannot visit the blame on counsel, who has not been given a chance to be heard but on the Applicant for failure to act vigilantly in relation to his instructions regarding his defence.

A client's duty towards the proper management of their case is not to only give instructions, pay instruction fees and then sit back. They must vigilantly follow up with their advocates to ensure that their instructions have been properly executed in the manner in which they were given to the advocate since the law regards advocates as their agents.

The upshot of my analysis herein above leads me to the **[9]** conclusion that the delay to file a defence by the Applicant, leading to the Respondent proceeding to execute against him has not been sufficiently explained for this court to exercise its discretion in the Applicant's favor, it is inexcusable.

This court is empowered by **Section 17 (2)** of the Judicature Act, Cap. 13 to exercise its inherent powers to prevent abuse of the process of the court by curtailing delays for the ends of justice to be met. I find

the instant application as aimed at delaying the Respondent from enjoying the fruits of his litigation. There must be an end to litigation. The application is therefore with no merit and is therefore dismissed with costs to the Respondent.

I so order.

I so order. Dated, delivered and signed at Mbarara this.........day of ................................... $\mathscr{U}$

$C$

Joyce Kavuma Judge