THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

                                                      [COMMERCIAL DIVISION]

MISCELLANEOUS APPLICATION No. 1077 OF 2013

(Arising From Civil Suit No. 470 OF 2005)

                                       BEFORE:  HON JUSTICE B.  KAINAMURA

The applicant brought this application for review Under Order 46 rules 1, 2, 3 and 4 seeking orders that the ruling of court in Civil suit No. 470 of 2005 delivered on 22^nd August 2006 be reviewed, vacated, set aside and /or cancelled. It also seeks that the order of court dismissing Civil Suit No. 470 of 2005 issued on the 22^nd of Aug 2006 be vacated, set aside and /or cancelled and finally that the costs in the application be provided for.

Background

The grounds in support of this application are set out in the affidavit of Mr. Peter Ochieng. They are briefly that the application came up as a result of the dismissal of Civil Suit No. 470 of 2005 delivered on 22^nd November 2005. He added that the suit was reinstated upon agreement of both parties and an amended plaint filed on 5^th July 2006. Furthermore, that a scheduling conference was fixed on 22^nd August, 2006 before Justice Egonda Ntende but at the scheduling conference the suit was dismissed for lack of annextures and want of prosecution. He deponed that the annextures ordered by the honorable Judge were already on court record at that material time and had even been served on the respondents. Additionally, the deponent stated that the applicant’s Counsel was present in court ready to proceed but the suit was dismissed for want of prosecution. It was his prayer that the court sets aside the order and allow Civil Suit No. 470 of 2005 to be reinstated and heard on its merits.

In reply, Ms. Ritah Nsubuga who had conduct of the matter previously, referred to the application as a fishing expedition. She added that on the 22^nd November 2005 when the suit came up for hearing, the case was stood over to 3:00 pm by court to permit Mr. Adrian Mubiru who had not attached annextures to avail them. She continued that neither the respondent’s representative nor Counsel appeared at the set time and the case was dismissed with costs for non-compliance with an order of court under  Rule 7 of the Constitution (Commercial Court) (practice) Directions Statutory Instrument 6 (formerly Legal Notice No. 5 of 1996).  She stated that the application is incompetent and improperly before court. She stated that the applicant is guilty of dilatory conduct in pursuing its claim by failing to appeal or review the main suit for 7 years now. She thus strongly opposed the application.

In rejoinder, Mr. Peter Ochieng the director of the applicant asserted that the matter had only reached scheduling conference stage as can be clearly ascertained from the court record. He added that the matter had a lifespan up to 3:00 pm that very day and it was dismissed for lack of prosecution.

Submissions

Counsel for the applicant submitted that the head suit which had earlier been dismissed had been re-instated and according to Counsel the reinstatement had overridden the order for dismissal and the suit was accordingly proceeding on a clean slate. Counsel stated that as can be seen at page 2 of the proceedings, the Counsel for the applicant was present but just did not have the annextures. It was Counsel’s contention therefore that dismissing a case at the stage of scheduling for non-attachment of annextures is against the spirit of Section 33 of the Judicature Act Cap 13 and Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995. He conceded that Counsel for the applicant faltered in attaching the annextures in the time given by court. Counsel cited the case of Uganda Breweries Ltd Vs Uganda Railways Corporation SCCA No.  6 of 2001 (unreported)  where the court stated that fair trial enjoins the trial Judge to decide the case based on evidence adduced before court and not other considerations.

In reply, Counsel for the respondent stated that Counsel for the applicant did not comply with an order of court. He added that the dismissal was premised on a ground of defying courts order rather than what was being alleged that it was based on want of prosecution. Counsel further raised two issues which are;

1. Whether the affidavit of Peter Ochieng is argumentative.
2. Whether this is a proper application for the orders sought.

Regarding the first issue, Counsel stated that an affidavit as a mandatory requirement under to order 19 rule 33 of the Civil Procedure Rules should contain only facts and not arguments or matters of law. He cited the case of Nakiridde Vs Hotel International Ltd [1987] HCB 85 where it was held that where an affidavit contains matters of law, is argumentative and is irrelevant, it is then incompetent and should be struck out.

Regarding the second issue, Counsel submitted that the application is not proper for the orders sought because; the application is founded on defective affidavits and for this reason should fail. Additionally he submitted that the application was filed after 7 years and there is no reason advanced by the applicant for the delay. More to that, that the allegation that the court based on a law that was nonexistent is not true because the Practice Direction the court relied on existed and as a matter of fact was reproduced in the blue volumes. Further still, the applicant had defied Court orders and the suit was dismissed. Counsel cited Order 7 rule 14 (1) CPR which he stated is emphatic on annextures to be attached at the time of filing which he argued is a mandatory provision. Counsel further argued that Section 98 of CPA as well as the Legal Notice No. 5 of 1996 gave court the discretion to dismiss the case. Counsel further pointed out that the application was omnibus seeking orders setting aside, reviewing, vacating, or cancelling the decision of court. He cited the case of Erimiya Serunkuma Vs Elizabeth Nandyose [1959] EA 127 where Court held that a court has no powers to alter its own judgment except for the limited purpose of correcting clerical or mathematical errors. In reference to Order 46 of CPR, Counsel emphasizing that the applicant has not shown or satisfied the conditions therein to be granted the remedy of judicial review. In conclusion Counsel stated that the matter was should have been a subject of an appeal but not an application for review or to be vacated or set aside as urged by the applicant.

In rejoinder, Counsel for the applicant stated that the issue raised on the affidavits being argumentative, was a mere technicality and as such the affidavit cannot be invalidated in view of Article 126 (2) (e) of the Constitution of Uganda. Counsel in support cited the case of The President of Democratic Party and 3 others Vs Ochieng Peter & 4 others HCMA No. 98 of 2012. Regarding time, Counsel stated that an application of this nature has no time frame set under the Limitation Act. Regarding the question of the application meeting the conditions necessary for the application for review, Counsel submitted that the head suit was dismissed based on a non-existent law i.e Legal Notice No.5 of 1996 which amounted to an injustice. He added that as was decided in Makula International Ltd Vs His Eminence Cardinal Nsubuga [1982], court cannot sanction an illegality. Counsel on the issue of jurisdiction stated that the court is vested with powers to review its decisions as was decided in the case of Attorney General and Another Vs James Mark Kamoga & another SCCA No. 8 of 2004. Counsel in conclusion reiterated the prayers earlier made, that the honorable court find that the dismissal was prematurely and erroneously made, that the same be vacated and the head suit reinstated and set down for hearing on this merits.

Ruling

Section 82 of CPA provides:-

          “Any person considering himself or herself aggrieved:-

1. by a decree or order from which an appeal is allowed by this Act but from which no appeal is preferred or
2. by a decree or order from which no appeal is allowed

may apply for a review of the judgment to the court which passed the decree or made the order”

Order 46 rule 1 of CPR reiterates the above provision but adds a condition to the effect that the applicant’s desire to apply for review is upon:-

1. Discovery of new and important matters of evidence previously overlooked by excusable misfortune.
2. Some mistake or error apparent on the face of record.
3. For any other sufficient reason but the expression “sufficient” should be read as meaning sufficiently of a kind analogous to (a) and (b) above. (see Re Nakivubo Chemists U Ltd [1979] HCB 12)

It has long been settled that review is a matter of discretion which must be exercised judiciously.

Turning to the matter now at hand it is apparent that the court invoked Rule 7 of the Constitution (Commercial Court) Directions Constitution of 1996 to dismiss the case. The rule provides:-

“Failure by a party to comply in a timely manner with any order made by the Commercial Judge in a commercial action shall entitle the Judge at his or her own instance to refuse to extend any period of compliance with an order of the court or to dismiss the action or counterclaim in whole or in part or to award costs as the Judge thinks fit”

Before the court invoked the rule, it set out in detail the events leading to its decision. The Judge noted:-

“On the 22^nd November 2005 at 9:25am Mr. Adrion Mubiru appearing for the plaintiff appeared before this court for a scheduling conference. The court noted that the plaint lacked annextures referred to in the plaint and made the following order:-

“The annextures mentioned in the plaint are not annexed to the plaint. Scheduling will not proceed unless this omission is corrected. Scheduling is adjourned to 3.00pm this afternoon to allow plaintiff to remedy the situation”.

At 3pm this order had not been complied with neither was Mr. Mubiru present. The suit was dismissed for lack of prosecution but was subsequently reinstated by agreement of parties. The suit was fixed today for scheduling, in the meantime plaintiff had filed an amended plaint by consent. Again no annextures were attached to the amended plaint. But neeless to say the Order of 22/11/2006 to file the annextures by 3 pm on that day still remains without compliance.

The plaintiff now wants an adjournment to file these annextures. He provides no explanation why he had not done so. He has had more than ample time to do so. I find no sufficient cause for adjournment and it is refused accordingly. As the plaintiff did not comply with my order of 21/11/2005 in a timely manner applying direction (rule) 7 of Legal Notice 5 of 1996 -----------------------------------------------------------------------------------------------------------------------------------------------------------------

I dismiss this suit with costs”.

In his submission, Counsel for the applicant urged that reinstament of the suit which had been dismissed meant that the suit was now proceeding on a new and clean slate. The trial Judge did not think so and I entirely agree with him. His order for production of the annextures to the plaint still subsisted and should have been complied with. In this regard rule 6 (3) of the Constitutional (Commercial Court) Directions, Constitution of 1996 is instructive. It provides:-

“The court will seek to set realistic time lines for hearing. Once established those time limits will be expected to be adhered to and extension will only be granted in special circumstances” 

From the record of the proceedings, the applicant / plaintiff was clearly given time lines within which to provide the annextures to the plaint and he did not. It is in my view a misconception on the part of Learned Counsel for the applicant to urge that the earlier order of the Judge of 22^nd November 2005 requiring the plaintiff to produce the annextures to the plaint was no longer in existence when the suit was reinstated. I am of the opinion that once the case has been reinstated, the case does not start de novo but continues as if it had not been dismissed.

As rightly pointed out by Counsel for the respondent O 7 r 14 (1) of CPR enjoins a plaintiff to produce in court when the plaint is presented all documents in his/her possession which he/she is suing upon. This is a mandatory provision.

The question now is whether this is a proper case for review as contemplated by law first set out above. As urged by Learned Counsel for the respondent, for the court to review the judgment, there must be new and important matters of evidence, a mistake or error apparent on the record or any other sufficient reason for court to proceed under O 46 CPR. Counsel for the applicant advanced several reasons for this application these being, that the dismissal was based on illegality, In as far as Legal Notice No. 5 of 1996 on which the dismissal was based is non-existent, that court cannot sanction an illegality, that the Judge was high handed in dismissing the case.

With due respect to Counsel for the applicant i fail to see how the reasons advanced by him above fall within the ambit of Section 82 CPA or O 46 CPR. To my mind the applicant should have filed an appeal so as to be able to canvass the issues set out above.

In the result this application is dismissed with costs.

B. Kainamura

Judge

25.08.2014