Zirinda & Another v Letshego Uganda Limited (Miscellaneous Application 800 of 2024) [2024] UGCommC 208 (17 July 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

# **MISCELLANEOUS APPLICATION NO. 0800 OF 2024** ARISING FROM MISCELLANEOUS APPLICATION NO. 1209 OF 2023 (ALL ARISING FROM CIVIL SUIT NO. 0559 OF 2023)

## 1. ZIRINDA JORAM

# 2. TWONGYEIRWE MONICAH :::::::::::::::::::::::::::::::::::: **VERSUS**

LETSHEGO UGANDA LTD :::::::::::::::::::::::::::::::::::

## (Before: Hon. Justice Patricia Mutesi)

#### **RULING**

## **Background**

The Applicants brought this application by notice of motion under Section 98 of the Civil Procedure Act Cap 71 and Order 9 Rule 23 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules S. I. 71-1 seeking orders that:

- 1. The dismissal of Misc. Application No. 1209 of 2023 be set aside and the same reinstated and heard inter-parties. - 2. The default judgment in Civil Suit No. 0559 of 2023 be set aside. - 3. The Applicants be granted leave to appear and defend Civil Suit No. 0559 of 2023. - 4. Costs of this application be provided for.

Briefly, the grounds of this application are that:

- 1. The Applicants are the Defendants in Civil Suit No. 0559 of 2023 where a default judgment was issued for want of prosecution of an application for leave to appear and defend vide Misc. Application No. 1209 of 2023. - 2. Misc. Application No. 1209 of 2023 was dismissed due to the negligent omissions of the Applicants' former lawyers, which omissions should not be attributed to the innocent Applicants. - 3. The Applicants only learnt of that dismissal when they were served with a notice to show cause why execution should not issue against them.

- 4. There has not been unreasonable delay in filing this application. - 5. The Applicants have a bonafide and meritorious defence to the suit which warrants consideration by this Honourable Court. - 6. It is in the interest of justice that the dismissal of Misc. Application No. 1209 of 2023 be set aside and the same be reinstated and heard on merit.

The application is supported by the affidavit of the 1<sup>st</sup> Applicant. Therein he stated that when Civil Suit No. 0559 of 2023 was filed, the Applicants instructed their former lawyers, M/S Stabit Advocates, to defend the suit on their behalf. The said lawyers filed Misc. Application No. 1209 of 2023 but they did not follow up on the same. Misc. Application No. 1209 of 2023 was dismissed without the Applicants' knowledge and a default judgment was subsequently entered in Civil Suit No. 0559 of 2023 against them. The Applicants only learnt of the dismissal of Misc. Application No. 1209 of 2023 when they were served with a notice to show cause why execution should not issue.

The 1<sup>st</sup> Applicant further stated that he carried out all possible due diligence by reaching out to the Applicants' former lawyers for updates on the status of the case but, on several occasions, his requests were not responded to. That it is thus not the Applicant's fault that their application for leave to appear and defend was not prosecuted. He finally stated that the Applicants are still interested in defending Civil Suit No. 0559 of 2023 to its logical conclusion and they have a bonafide defence to the same which ought to be considered.

The Respondent opposed the application through an affidavit in reply sworn by its Company Secretary, Martha Carolyne Nyadoi. Therein she stated that on 29<sup>th</sup> June 2023, the Respondent instituted Civil Suit No. 0559 of 2023 on ECCMIS against the Applicants. Service of summons to apply for leave to appear and defend the suit was duly effected on the Applicants' lawyers, Stabit Advocates, on 19<sup>th</sup> July 2023. The Applicants were supposed to apply for leave to appear and defend the suit within 10 days and the last day for filing that application was 29<sup>th</sup> July 2024. However the Applicants filed Misc. Application No. 1209 of 2023 on ECCMIS on 1<sup>st</sup> August 2023 at 5:12pm after the lapse of the prescribed time.

Ms. Nyadoi further stated that Misc. Application No. 1209 of 2023 was called for hearing on 20<sup>th</sup> December 2023. The Court heard and dismissed the application for being filed outside the prescribed 10-day period and entered a default judgment and it is not true that the application was dismissed for want of prosecution. The Applicants did not apply to Court to enlarge time within which to file their application for leave to appear and defend Civil Suit No. 0559 of 2023 outside the prescribed time.

#### **Issue arising**

Whether this Court should set aside the dismissal of Miscellaneous Application No. 1209 of 2023.

#### **Representation and hearing**

At the hearing, the Applicants were represented by Mr. Sekyanzi Lawrence and Tumwebonere Jackson of M/S Tenax Advocates, while the Respondent was represented by Mr. Eguman Ivan from the Respondents Legal Department. Counsel filed written submissions to argue the application. I have fully considered all the materials on record, the submissions of counsel and the laws and authorities cited therein.

#### Determination of the issue

## Whether this Court should set aside the dismissal of Miscellaneous Application No. 1209 of 2023.

On perusing the Court record, I noticed that the affidavit in support of this application is signed and commissioned but that it is not dated. For that defect, it is not possible for the Court to tell when the affidavit was sworn.

The common stand of the courts in dealing with defective affidavits is that they should be viewed as liberally as possible. This is in line with the Constitutional directive in Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995 (as amended) that courts should administer substantive justice without undue regard to technicalities. Accordingly, the Court shall overlook the Applicants' omission to date their affidavit in support and shall take the date of the motion (29<sup>th</sup> April 2024) to be the date on which the affidavit in support was sworn.

Once a judgment is delivered, the usual recourse for the losing party is to lodge an appeal against the judgment in an appellate court. However, where judgment is entered in a summary suit, Order 36 rule 11 of the Civil Procedure Rules S. I. 71-1 gives the court a discretionary power to set aside its own decree, stay or set aside execution of the same, and grant leave to the defendant to appear and

defend the suit, if the court is satisfied that the service of the summons was not effective or for any other good cause. (See Post Bank (U) Ltd v Abdu Ssozi, SCCA No. 08 of 2015.)

Consequently, the enabling law for an application seeking to set aside a judgment or decree issued under Order 36 of the Civil Procedure Rules is Rule 11 thereof. The Applicants brought this application under the general law for court relief (Section 98 of the Civil Procedure Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules) and for setting aside dismissal of a suit for nonappearance of a plaintiff when the suit is called for hearing (Order 9 Rule 23 of the Civil Procedure Rules). The Applicants did not bring the application under the proper enabling law which is Order 36 Rule 11 of the Civil Procedure Rules.

The position of the law on failure to cite any law, or citation of a wrong law, as the basis for an application has, for long, been settled. Such errors are not fatal or incurably defective as along as the court to which the application is made has the jurisdiction to determine the application and issue the orders sought. (See Pastor Kyaligonza Sabastian v Tamale Deogratius, HCMA No. 738 of 2016). Thus, the Court shall, again, rely on Article 126(2)(e) of the Constitution of Republic of Uganda, 1995 to find that the Applicants' failure to bring the Application under the true enabling law is not fatal, so that it can dispose of the application finally.

I shall now turn to the merits of the application. I note that the Applicants are mistaken about the actual grounds on which this Court based to dismiss Misc. Application No. 1209 of 2023. The Applicants have averred that the said application was dismissed for want of prosecution since their former lawyers did not appear in Court when that application was called on for hearing. However the Court record in Misc. Application No. 1209 of 2023 shows that when that application was called for hearing on 20<sup>th</sup> December 2023, the Applicants and their counsel were absent. In agreement with the prayers of the Respondent's counsel, the Court dismissed the application for having been filed out of time.

Although the Applicants and their lawyers were absent at the said hearing, and there were grounds for dismissal for non-appearance under Order 9 Rule 22 of the Civil Procedure Rules, the Court actually dismissed the application for late filing. Therefore this application is largely misconceived and most of the contents of the supporting affidavit are not helpful in making a case for setting

aside the default judgment. The Applicants have put forward an explanation for their non-appearance at the hearing of Misc. Application No. 1209 of 2023 which is that their former counsel neither informed them of that date nor appeared at the hearing. However they have not presented any explanation for their late filing of Misc. Application No. 1209 of 2023.

The Applicants never filed an application for enlargement of the time in which to file their application for leave to appear and defend or for validation of their belatedly-filed Misc. Application No. 1209 of 2023. They have also not provided any explanation to the Court in this application for their late filing of Misc. Application No. 1209 of 2023 which would have justified the exercise of the Court's discretion in their favour so as to overlook the prescribed timelines.

In line with Order 36 Rule 11 of the Civil Procedure Rules, there is no contention as to whether or not the service of summons in Civil Suit No. 0559 of 2023 was effective. I have also not seen any good cause justifying setting aside the default judgment in Civil Suit No. 0559 of 2023 as the Applicants have not provided any explanation or justification for the late filing of Misc. Application of 1209 of 2023. Consequently, this application fails and I make the following orders:

- i. This application is hereby dismissed. - ii. **Misc. Application No. 0798 of 2024** which arose from this application and which sought orders staying execution of the decree in Civil Suit No. 0559 of 2023 pending the final disposal of this application is hereby overtaken by events and is, accordingly, dismissed. - iii. Costs of this application, and those of Misc. Application No. 0798 of 2024, are awarded to the Respondent.

readentes

Patricia Mutesi JUDGE $(17/07/2024)$