THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL COURT DIVISION)

MISCELLANEOUS APPLICATION NO. 358 OF 2012

(ARISING FROM MISCELLANEOUS APPLICATION NO. 117 OF 2010)

(All arising from Civil Suit No. 169 of 2003)

STONE CONCRETE LIMITED ::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

THE JUBILEE INSURANCE COMPANY LTD::::::::::::::::RESPONDENT

BEFORE: LADY JUSTICE HELLEN OBURA

RULING

This application was brought under Section 98 of the Civil Procedure Act, Order 9 rule 22 and Order 52 rules 1 & 2 of the Civil Procedure Rules seeking for Orders that the dismissal of Miscellaneous Application No. 117 of 2010 be set aside and the said application be reinstated and determined on its merits as well as an order that costs of the application be provided for.

The grounds of the application are contained in the notice of motion and affidavit in support deposed by Mr. Gopal Vekaria, the Managing Director of the applicant. The gist of the grounds is that the application was dismissed due to negligence of the applicant’s former counsel.  The second ground is that the applicant has sufficient cause as to why the application should be reinstated.

The application was opposed on the grounds stated in the affidavit in reply deposed by Mr. Ernest Sembatya Kaggwa.

When this matter came up for hearing Mr. Patrick Alunga represented the applicant while the respondent was represented by Mr. Matthias Ssekatawa.

Before delving into the merit of this application, I wish to first deal with the points of law raised by counsel for the respondent. Firstly, he contended that the affidavit in support of the application was a nullity. In his submissions, Mr. Ssekatawa attacked the affidavit in support arguing that it was neither dated nor did it indicate the date on which it was commissioned. It was his submission that the law has been settled that an undated affidavit is a nullity as it would be contrary to the law. However, no authority was provided to support this view.

In response, Mr. Alunga submitted that not dating the affidavit is not fatal basing on the Court of Appeal decision in the case of Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258 where it was held that a defect in the jurat or any irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of Article 126(2) (e) of the Constitution which stipulates that substantive justice shall be administered without undue regard to technicalities.

I have looked at the affidavit in support of the application. Indeed it is not dated although it is shown to have been affirmed in June 2012. However, what is not indicated is the particular date on which it was prepared and affirmed. The effect of not dating an affidavit is not as fatal as the applicant’s counsel submitted. The fact that the affidavit is not dated is a defect in the jurat which was held by the Court of Appeal inSaggu v Roadmaster Cycles (U) Ltd (supra) to be mere lapses and errors that cannot be allowed to vitiate the affidavit in light of Article 126(2) (e) of the Constitution. In that case their Lordships concluded thus:-

“It is therefore clear that failure to date an affidavit or cite the correct law or any law at all are mere errors and lapses which should not necessarily debar an application from proceeding”.

In view of the above authority which is binding on this court, I find the failure to date the affidavit a mere lapse and error which I will treat as a technicality and ignore in the interest of substantive justice. I therefore overrule the objection raised by the respondent’s counsel.

Another point that was raised by the respondent’s counsel is that the application should have been brought under Order 9 rule 23 and not rule 22 because rule 22 provides for the procedure where only the defendant appears. Needless to say the conclusion of their Lordships in the above authority of Saggu v Roadmaster Cycles (U) Ltd (supra) also addresses this point. Other cases with similar holdings are Nanjibhai Prabhudas and Company Ltd v Standard Bank Ltd [1968] EA 670  andRe Christine Namatovu Tebajjukira [1992-93] HCB 85.

This court is also alive to the caution given inSaggu v Roadmaster Cycles (U) Ltd (supra) that court should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of the most fundamental nature. It was concluded that matters of procedure are not of a fundamental nature.

For the above reasons, the objection is overruled and this court will proceed to consider this application on its merits based on the correct law which is Order 9 rule 23 of the Civil Procedure Rules.

Order 9 rule 23 requires the applicant to satisfy the court that there was sufficient cause for non appearance when the suit was called on for hearing. Once sufficient cause is shown to the satisfaction of the court, an order setting aside the dismissal upon such terms as to costs or otherwise as the court thinks fit is made.

Turning to the first ground on which this application is premised, Mr. Alunga referred to the affidavit in support where the applicant states that he approached his previous counsel to provide update on the matter but was informed of the missing file. Counsel for the applicant also referred to the applicant’s assertion that he informed his counsel that the suit had been dismissed but counsel did not take steps until MA 117 of 2010 was filed without the applicant’s knowledge. The applicant claimed to have known of the application when he received a copy of the skeleton arguments from their counsel. According to the applicant, it was then decided that instructions be withdrawn from their counsel. Mr. Alunga relied on the case of Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22 for the principle that mistake of counsel however negligent, should not be visited on the applicant.

Mr. Ssekatawa on the other hand submitted that there can be no talk about negligence of counsel when the Managing Director of the applicant was in Court on 29/04/2004 and on 8/10/2004. He highlighted the history of this application stating that the suit sought to be reinstated was filed on 28/03/2003. On 4/11/2004 the matter was adjourned at the instance of counsel for the applicant. He argued that no steps were taken until court issued a notice to show cause why the suit should not be dismissed. He added that none of the parties appeared and the suit was dismissed and an application for reinstatement of the suit was filed four years later. That application was fixed for hearing on 29/3/2010 but it was dismissed as counsel for the applicant did not appear. After about a year, this application was filed to reinstate that application.

It was the submission of counsel for the respondent that litigation must come to an end. He argued that the applicant had inordinate delay in the matter. Mr. Ssekatawa further submitted that the authority of Banco Arabe Espanol v Bank of Uganda (supra)is distinguishable because mistake is different from negligence. He argued that counsel has not shown any mistake or negligence of counsel.

As regards sufficient cause, counsel for the applicant submitted that the applicant has enumerated sufficient cause to enable this court invoke its powers under section 98 of the Civil Procedure Act to set aside the dismissal. He referred to the assertion that the applicant was not aware that MA 117 of 2010 had been dismissed He pointed out paragraphs 13, 14 and 15 of the affidavit in support where the applicant states how he became aware of the dismissal and the steps he took.  Mr. Alunga submitted that it is the applicant’s case that the delay was not due to his dilatory conduct but was let down by his previous counsel.

Counsel for the respondent argued that no sufficient cause had been shown. He cited the case of Joseph Ssengendo & Another v Semakula Muganwa Charles & another MA No. 167 of 2011 where this court held that waiting for over one year is dilatory conduct.

In that case the principles of Lucas Marisa v Uganda Breweries Ltd (1988-1990) HCB 131 at 132, were applied where it was held:

“This application would also be dismissed on the ground of the applicant/plaintiff’s delay in bringing this application and setting it down for hearing. Although the rules do not provide for a time limit the application to set aside an order of dismissal must be brought within reasonable time. The plaintiff/applicant had to wait for over one year and some months to file his application and almost another year to set it down for hearing. All this went to show that the applicant and his counsel were not serious.

In the instant case the applicant waited for one year and four months to bring this application. This amounts to dilatory conduct on the part of the applicant. The applicant faults its former counsel for the delay.

I must however observe that according to annextures “A” and “B” to the affidavit in support of this application, the applicant had no intention of proceeding with the application. Annexture “A” is a letter dated 13^thSeptember 2010 written by the applicant’s Managing Director to its former counsel stating that the ill-fated application was not sent to them for approval. For that reason the applicant instructed its former counsel to withdraw that application and vacate the next hearing date as they were in the process of instructing new lawyers.

On the same date the Managing Director of the applicant also wrote to the registrar of this court giving notice of withdrawal of the case and instructions from its former counsel. He specifically requested the registrar to write to acknowledge that she would bring that letter to the attention of the judge. The letter was copied to the former counsel.

There is an endorsement by the registrar on that letter to the effect that; “there are formal legal steps to do this. A notice of instructions changing advocates must be formally filed. The rest will be handled in court”.

A copy of the hearing notice for that application marked annexture “C” to the affidavit in support indicates that when the applicant’s former counsel were served for 8^thFebruary 2011 the date the application came up for hearing and was dismissed, he made an endorsement thereon that the plaintiff withdrew instructions from him on 13/09/2010.

On 8^thFebruary 2011 when the application was called on for hearing, there was no appearance for the applicant. Counsel for the respondent had appeared ready to proceed because he was not aware of the developments that had taken place as between the applicant and its counsel since none of the correspondences were copied to them. He prayed for dismissal of the application with costs.

This court took note of the above correspondences and dismissed the application with costs to be personally paid by the applicant’s former counsel as he had undertaken to do so in the affidavit in support of that application.

The above background brings to mind two pertinent questions that relate to the grounds of this application. The first one is whether the applicant’s former counsel should be blamed for the lapses that led to the dismissal of that application. Secondly, can the applicant be said to have been interested in prosecuting the application which it’s Managing Director had given notice to withdraw?

As regards the first question, my view is that if there is anyone to blame for the lapses then the applicant through its Managing Director should squarely take the blame. I say so because the applicant took over conduct of its case when it withdrew instructions from its former counsel with the assurance that it was in the process of instructing new lawyers. It was therefore the duty of the applicant and its new lawyer to follow up this matter in court and ensure that the proper procedure as advised by the registrar was followed to have the application formerly withdrawn. No follow up was made. The applicant’s former counsel cannot be blamed because by then he had no instructions to handle the matter.

For the above reason the principle that mistake of counsel should not be visited on a litigant cannot be relied upon by the applicant as there was no such mistake, negligence or lapse on the part of its former counsel at least in relation to the circumstances that led to the dismissal of the application.

On the second question, it is quite interesting that the applicant who had given notice of withdrawal of the application and even instructed its former counsel to vacate the next hearing is now so aggrieved by its dismissal due to confusion caused by its letters. To my mind, reading from the tone of the letter to the applicant’s former counsel, the application was filed without instructions and the applicant was not interested in it. This court would therefore not be inclined to reinstate such an application which would most likely not be prosecuted given the history of the applicant’s case right from 2003 when the main suit was filed.

Consequently, I find this application without merit and I dismiss it with costs.

I so order.

Dated this 20^thday of February 2013.

Hellen Obura

JUDGE

Ruling delivered in chambers at 3.00pm in the presence of Mr. Patrick Alunga for the applicant whose Managing Director was also present and Mr. Mathias Sekatawa for the respondent.

JUDGE

20/02/2013