Zubeida v Oyee and 2 Others (Civil Application 95 of 2019) [2020] UGCA 2160 (26 August 2020)

Full Case Text

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THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

## Civil Application No. 95 of 2019

(Arising out of Civil Application No. 388 of 2017)

Zubeida Abdulrahman :::::::::::::::::::::::::::::::::::: 15

Versus

**Respondents**

- 1. Oyee Leonard - 2. Lagu Fiesto

3. Drasi Salverio

$\mathsf{S}$

Hon. Justice Remmy Kasule, Ag. JA sitting as a Coram: single Justice

## **Ruling**

The applicant applies that this Court sets aside the order 25 dismissing Civil Application No. 0388 of 2017 made on 28.02.2019 and that the same be reinstated on the Court Register and be determined on its own merits.

The application is being made under Rule 56(3) of the Judicature (Court of Appeal Rules) Directions, SI 13-10.

An affidavit affirmed to by advocate Amar Ali of Messrs. Kabayiga, Kavuma, Mugerwa & Aii, Advocates, was filed in support of the application. Through an affidavit in reply by Oyee Leonard, the first respondent to the application, the respondents oppose the application.

At the hearing Counsel Nakato Stella appeared for the applicant. The applicant was absent. The respondents and their Counsel were also absent.

This Court ordered the hearing of the application to proceed in the absence of the respondents and their Counsel as there was on the Court record evidence of service of the Hearing Notice for the hearing date of 79. O3.2O2O upon Counsel for the respondent. No reason had been availed to Court for the absence of the respondents and their Counsel when the application was called for hearing. 40 45

By way of background, Court of Appeal Civil Application No. 0388 of 2OI7, brought by the applicant against the three (3) respondents, carne up for hearing before a single Justice (Egonda-Ntende, JA) on 2a. O2.2019.

The record of the Court proceedings of 28.02.2O19, shows that when the application was called for hearing on that day all the parties and their respective Counsel were absent. His Lordship the presiding Justice then ruled as hereunder: 50

"Court:

There is an affidaoit of seraice on both Counsel. This application is dismissed under Rule 56(7) of the Rules of this Court."

Relying on the affidavit in support of the application, Counsel for the applicant submitted that the applicant had sufficient cause for being absent from Court when the application was dismissed on 28. O2.2019.

65 learned Counsel argued that on that day of the hearing of the Application Advocate Siraj Ali for the applicant had appeared in Court at 12.00 p.m. when the appiication had been scheduled for hearing. He was informed by a Court Clerk that the application had been stood over for 2. OO p.m. as the presiding Justice was still with a Coram of three Justices handling other matters.

Advocate Siraj Ali, then left Court to go and stand surety for his colleague at Nabweru Court. He however, before leaving, called Advocate Amar Ali with whom he practices law in the same Firm of lawyers, to come to Court and handle the hearing of the application at 2. OO p.m.

- Counsel Amar Ali came to the Court and sat in Court on the third Floor of the building where the Court of Appcal is housed wherc the presiding Justice in the application, His Lordship Egonda-Ntende, was still busy as part of the Coram of three Justices still - 80 handling other matters.

nt 2.30 p.m. Counsel Amar Ali briefly steppcd out of Court. OIr returning to the samc Court, after il fer,r, minutes he bumped inltl

85 a colleague lawyer who explained to him that he was from attending to a matter in Court presided over by His Lordship Justice Egonda-Ntende on the fourth Floor of the same Court of Appeal building. Counsel Amar Ali there and then proceeded to the fourth Floor of the Court ol Appr:al building where he was told by the Court Clerk that Civil Applicatior-r No. O38B of 2017 had been dismissed due to the absencc of the parties and their respective Counsel when the same had been called for hearing. 90

The applicant then lodged this application to set aside the order ol dismissal of the Civil Application No. O3BB of 2017.

On the basis of the grounds stirted in the affidavit of learned Counsel Amar Ali applicant's Counsel contended that Counsel for

the applicant was prevented by sufficient cause to appear in Court in time on 28. O2.2O 19 and as such it is just and equitable that this Honourable Court grants the prayer of the application. 95

Though the respondents and their Counsel were absent, through an afhdavit in reply, deponed to l>y the first respondent, the first respondent opposed this application.

The first respondent asserted that ncither he nor his lawyers, M/S Alzrka & Co. Advocates had ever been served by the applicant with any pleadings of the Court of Appeal Miscellaneous Application No. 0388 of 2017, thre subject of this application for reinstatement.

It is also the case of the first respontient that the applicant has not provided any proof that Counsel Siraji Ali went to stand as surety for a colleague in Nabweru Court. and that Counsel Amar Ali rcported to the Court of Appeal ancl sat in a wrong Court on the 105

date when the Application No. O38B of 2017 was called up for hearing and was dismissed.

For the above stated reasons in the affidavit in reply the first respondent prayed for tl-re dismissal of the applicant's application.

This Court is empowered by Rule 56(3) of the Rules of this Court, to determine this application. The Rule provides that where an

115 1)O application has been dismissed for absence of the applicant on the day fixed for the hearing, thc i)arty whosc application in whose absence the application was dismissed, may apply to the Court to restore the application for hearing, if the said applicant cal show that he/she was prevented by suflicient cause from appearing when the application was called on for hearing.

The term sufficient cause should receive a liberal construction in order to advance substantial justice. There must however be no imputation of negligence, inaction or want of bonafide on the part of the one asserting to possess sufficient cause. The whole concept

1?.5 130 of sufficient cause embraces a situation when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a curious person. Such a one must not have been negligent in the manner of acting or acting not diligently or being inactive or has want of bona fide. See: Gideon Mosa

Onchwati vs Kenya Oil Co. Ltd & Another [2Ol7l e KLR.

"Sufficient Cause" is also interchangeable with the phrase ''good cause" and absence o[ "sufficient cause" or "good cause" meaning inability or failure of a party to a cause to take a perticular step at 135 a particular requisite time. The High Court of Uganda (Ssekaana

Musa, J) has referred and applied the above in a persuasive case of High Court Miscellaneous Application No. 696 of 2018: Bishop Jacinto Kibuuka vs The Uganda Catholic Lawyers Society, Hon. Sewungu Joseph and Jude Mbabaali.

- This Court therefore has to resolve, on the application of the 140 principles set out above, whether or not, the applicant has established sufficient cause so as to be successful in this The applicant in order to be successful has to application. establish that there was no negligence, inaction or want of bona fide, in his conduct as relate to his absence and that of his lawyer 145 from Court on 28.02.2019 when Court of Appeal Civil Application No. 0388 of 2017 was dismissed by reason of absence of the parties and their respective Counsel when the said application was called for hearing. - The applicant himself however, deponed to no affidavit and none 150 was filed in this Court of Appeal Civil Application No. 95 of 2019. There is only the affidavit of his lawyer Amar Ali explaining the circumstances as to why both Counsel for the applicant, that is Siraj Ali and Amar Ali, were absent when the Civil Application No. 0388 of 2017 was called for hearing on 28.02.2019. There is 155 therefore no explanation from him, as the individual applicant, as to why he himself, apart from his lawyers, was absent from Court on the 28.02.2019.

Paragraph 11 of the affidavit of Counsel Amar Ali filed in support of the application, states; 160

> "11. That this suit be reinstated as I and Mr. Siraj Ali were prevented by sufficient cause to appear in Court in time."

> > $\mathsf{6}$ There is no explanation in the rvhole affidavit from Counsel Amar Ali as to why his client, thr: applicrlnt, was not present in Court on that day.

Indeed even on the day of hearing of this application i.e. 95 of 2Ol9 on 19.03.2020 the altplica.nt r,r,as absent from Court. Learned Counsel Nakato Stella vrho :rppeared for the applicant on that day stated to Court from thr: Bar that:

770 "TLe applicant utas not in Court for applicant stags in Arua and could not trauel to Kampala for heaing since seruice was onlg effected 2 dags be.fore hectring".

This assertion of Counl;el is o[ learst value to this Court. Learned Counsel was not a witness in thc <:ause and was not allowed in law to give evidence which was not on oath and was a mere statement by Counsel at the Bar.

180 185 Further, there is no validitv in the assertion of learned Counsel Nakato Stella, that one cannot travel from Arua to the Court of Appeal in Kampala when sen,ed with Court's process, two days before the hearing date. This Cou;-t takes.judicial notice of the fact that, in norma-l circumstances, travelling from Arua to Kampala, is a matter of hours not days. Thc applicant himself never stated by way of an affidavit of his own as to when he was served, and why he failed to travel to Kampala t,o attend Court in answer to the served Court summons This asscrtion of learned Counsel Nakato Stella is accordingly rejr--cted by this Court.

As to the events of 28. A2.2011) u,lrc.n Ciwil Application No. O388 of 2OL7 was disrnissed t,"l,o leautr:rl Counsel of thc :rpplicant were involvcd in ttre same, (lrunsr:l Sirr.r; Ali and Amar Ali. Only Counsel .190 Amar Ali deponed to an ailidar-it in support of this application. Counsel Siraj Ali did rLot depone to and file an affidavit in this application. This Court wiis not furnished with any explanation as to why he did not do so.

According to the aflidavit of Counsel Amar Ali, paragraph 2 thereof, learned Counsel Siraj Ali havrng personal conduct of the application on instructions of tl're :rppiicant appeared in Court on 28.02.2019 at 12.00 o.m. which was the scheduled time for hearing the application. 'Ihis Crturt was not availed with any evidence that 12.0O p.rn. u/as the scheduled time for hearing this application. The pract.ice of the Court, which is taken judicial notice of, is that Court hearings of causes before the Court of Appeal commence at 9.:10 a.m. frorn Monday to Friday of the week. If a cause is to be stood over for some time, the parties and their respective Counsel report to the (lourt at 9.30 a.m. and then the Court informs them that, for one reason or another, the hearing of the cause is to be stootl over up to a particular time of the day. There is no evidence th,r.t this is u,irat happened on 28. O2.2OI9 in respect of Civil AppliczLtion No. O38B of 2OlZ. The burden was on the applicant and his Counsel tc let this Court know what exactly happened to have the application No. 0388 of 2OtT fixed for hearing at 12.00 p.m. on 28.02.2019. This burden would have been discharged by having an aI'firlavit filed on the Court record by the applicant's Counsr:l Sira.j Ali. This burden has not been discharged in the absr:r rce of si-rch an affidavit being filed in Court and being part of the (l,rurt rL'(t(,rci. 195 o 200 205 O2n 21t,

It is stated in the affida',,it oI Coun sel Amar Ali that on 28. O2.2O79, his colleague Counsel :iira.i Ali alrived at the Court of Appeal at 12.00 p.m. and was infornred by a Court Clerk, whose name is not disclosed in the aflidavrt, that Civil Application No. 0388 of 2017 had been adjourned to 2.00 p.m. of that day. The reason for the adjournment was becarrse l{on. . Iustice Egonda-Ntende, who was to handle the said applrcalron as ir single Justice, was part of the Coram of three Justices, v.,ho vgert' still handling other causes as a Coram of three Justiccr;.

225 The affidavit of Coun s<.1 ,/\rni.rr i\ii goes on to assert that shortly before 2. OO p.m. on 2t',. O.2.)O 1(;. Counsel Siraj Ali called him by phone to go to the Cor.rrt of Appeal and stand for him and argue the application on behrrlf ol ttre applicant in Civil Application No. 0388 of 2OlT,because 're, Siraj Ali, had been urgently called to go and stand surety for a c<-rllr:agr.re of his at Nabweru Magistrate's

230 Court.

It is unexplained to this Court u'h1' Counsel Siraj Ali did not depone to and file an affidavit ir tt-i:; Application No. 95 of 2Ol9 containing those above stated asst'rtiorts. C)ounsel Amar Ali is stating them in his affidavit as hear:.;ar, rrssertions since they were told to him by Counsel Siraj Ali. Bcing lrearsay this Court can hardly act upon the same as proved fact s.

l,earned Counsel Ama, Al: irlso u:ther asserted in his affidavit in support of this applic:rliorr. tha: on being called by Counsel Siraj

240 Ali, he proceeded to thi'Cc,rtr-t .riAcpeal premises and on inquiring from a Court Clerk, as irr r,rlrich i.)ourt Hon. Justice Egonda-Ntende was currently holding (loLrtt, ti'rc' Clerk directed him to the first

Court room on the third Floor of the Court of Appeal building. Counsel Amar Ali then stated in paragraph 7 of his affidavit:

"7. That I was then directed to the first Court room where I sat and waited for the three Justices to complete the matters they were currently handling and for Hon. Justice Egonda-Ntende to begin handling the application".

However in paragraphs 8, 9 and 10 of his very same affidavit, Counsel Amar Ali asserted in a very contradictory way: 250

> "8. That at approximately 02.30 p.m. stepped out of Court shortly and bumped into a colleague who informed me that he *was from attending Court before Hon. Justice Egonda-Ntende* on the fourth floor.

9. That I immediately proceeded to the fourth floor and inquired 255 from a Clerk called Naiga about the fate of Civil Applications No. 388 of 2011 and 414 of 2017.

> 10. That Naiga informed me that Civil Application No. 388 of 2017 was dismissed and I confirmed the same from the transcript office the following Monday, the $4th$ day of March, 2019".

It is unexplained and very contradictory, how, learned Counsel Amar Ali who had inquired from the Court Clerk as in which Court Hon. Justice Egonda Ntende was, and the Court Clerk had directed him to the first Court room on the third floor, where Counsel Amar Ali went, found Justice Egonda Ntende with two others still handling some applications, would at 2.30 p.m. on getting out from the very Court where Hon. Justice Egonda-Ntende was conducting

causes as part of the Coram of the three Justices, bump into a colleague who informed him that he was from attending Court 270 presided over by the same Hon. Justice Egond-Ntende on the fourth floor of the Court of Appeal premises. The Hon. Justice Egonda-Ntende could not be in Court as part of the Coram of three Justices on the third floor of the Court, and at the same time be conducting Court as a single Justice in another Court on the 275 fourth floor of the same Court of Appeal premises.

$\mathcal{L}^{\text{max}}_{\text{max}}$

The is no explanation offered for this contradictory state of affairs. It deprives the application of honesty, sincerity of intention and good faith. It is want of bonafide on the part of the applicant and his Counsel.

In the affidavit in reply, by the first respondent, Oyee Leonard, it is asserted on oath that the first respondent has never been served by the applicant with the Civil Application No. 0388 of 2017 dismissed on 28.02.20 9, and now the subject of this application for reinstatement.

The applicant has not in any way respondent to this assertion by the first respondent, thus leaving the assertion uncontested. This means that for more than three (3) years since Civil Application No. 0388 of 2017 was lodged in this Court, the same has never been served upon the first respondent or his Counsel. This is a lot 290 of inaction on the part of the applicant and is contrary to Rule 50(5) of the Rules of this Court that requires that the Notice of Motion and copies of all affidavits shall be served on all necessary parties in not less than two clear days before hearing. This Rule was certainly violated when the dismissed Civil Application No. 295

$\overline{11}$

03BB of 2Ol7 carne up ,br ',t'iir nr,: on 28.02.2O 19 when the same had never been serveci Llpr,ri th i:-st respondent. It is unknown whether the 2"d and 3, 1'( i,,)r)n, ic rrts had themselves been served with the said Applicatir r.

In the overall assessn r:'ni ,;1 ,r i [rr-' circumstances and matters relating to this applica iorr. ii:i: ( orrrt finds, for the reasons that have been elaborately ,;e t ,: u i ' l-,rvc, that the applicant has not established suflicient ( aLrr:i( ii) fr rvc this application allowed by setting aside the order d:rt,,tl '. 1|)2.2O19 dismissing application No. 0388 of 2OI7 and r'''inr.,t.11in ,, rhc said application on the Court Register. 300 305

This Court finds that 1lrc.ip1-lir t:rt and his Counsel have in their respective ways been 1,uirt1 o[ nr gligence, inaction and want of bonafide and have by rr,'i,r:,o,r tl elcof failed to establish sufficient cause. Accordingly thi', zrr.,i iile, ir,t'r stands dismissed.

Since the respondents is .r.','l: hearing of this applica' 'or r'r costs. heir Counsel did not attend the )3.2O2O, no order is made as to

Dated at Kampala this Lq I i'of 2020. t: II{II: -1' ,iasul :... 'r .: r i, e :.f Appeal \-v- .-4