THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO.715 OF 2014

DFCU BANK LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

PRIME CONTRACTORS LTD AND 2 OTHERS:::::::RESPONDENTS

BEFORE THE HON. JUSTICE HENRY PETER ADONYO

RULING

1. Facts:

This Application is brought under Order 9 rule 18, Order 52 rules 1 and 2 of the Civil Procedure Rules. SI 71-1 and Section 98 of the Civil Procedure Act for orders that this Honourable Court sets aside the order dismissing HCCS No. 244 of 2013 and that the costs of this Application be in the cause.

The grounds of this Application are nine in total and are more elaborated in the Affidavit in support of this Application sworn by one Edwin Tabaro, said to be an advocate practicing with M/s Karuhanga, Tabaro and Associates based at ESAMI House Plot 52 Bombo Road, and of P.O. Box 37366, Kampala.

The submission made in respect of this Application elaborates further the grounds upon which it is based and the affidavit in support. All of these are on record.

2. Applicant’s Case:

It is the Applicant’s contention that counsel attended court on the 5^th May 2014 when the matter was first mentioned during which it was agreed by both parties that since the mediation process had not yet been fully exhausted, the case file ought to be sent back to the Mediation Registry for further attempts amicable resolution the dispute between the parties. The matter was then adjourned Honourable Court to the 6^th day of June 2014 for scheduling pending mediation action. However, and more so unfortunately, during the said proceedings of the 5^th May 2014, learned counsel for the Applicant instead of recording  the next date when the matter would appear before the Honourable trial judge as 6^th June 2014, is said to have  inadvertently noted in his diary the date of  16^th July 2014 and so when the suit eventually came up on the 6^th day of June 2014, only the Second  Defendant was present in court and the court seeing that this being the case gave a last adjournment to the date of 4^th July 2014 with the orders that the other parties be summoned to appear accordingly.

It is stated that on the 11^th day of June, 2014, learned counsel for the Applicant prepared mediation notes which were filed in the Mediation Registry for filing the said registry which he did and was however informed by his clerk that a hearing date for the mediation process could not be secured then. That on the 16^th day of July 2014 learned counsel for the Applicant finally attended Court where he discovered that the suit had already been dismissed for want of prosecution as none of the parties had attended court that day when it was called, hence leading to the making of this Application.

3. Issues

1. Whether Civil Suit NO. 244 of 2013 can be reinstated and whether there are grounds for the reinstatement thereof.

3. Resolution Of The Issues

The Applicant submits that there exist grounds for the applying for the reinstatement of High Court Civil Suit No. 244 of 2013 on the basis that the said suit has always been prosecuted by the Applicant who indeed initiated it. The Applicant alludes through paragraph 2 to 4 of the affidavit in support of the application sworn by his counsel that the said counsel placed in his diary the date of 16^th July 2014 instead of 6^th June 2014. It further avers that when the suit was next called on 4^th day of July, 2014, none of the parties were present in court with the non appearance of the parties constraining the Honourable Court to dismiss the suit for want of prosecution.

The Applicant takes refuge under Order 9 Rule 18 of the Civil Procedure Rules which it states provides a remedy for situation such as the above as long as it can be shown that there was sufficient cause for the non-appearance when the suit was called for hearing. The Applicant states that the inadvertent mixing of the date when the matter was fixed next to be heard by court by the learned counsel for the Applicant and the fact that the counsel for the respondents had also requested that the file be sent back to the Mediation Registry, all were factors that contributed to learned counsel for the Applicant missing court on the day in question and, hence leading to the dismissal of the suit.

The Applicant therefore submitted that the aforementioned circumstances amounted amount do sufficient cause for non-appearance with the inadvertence act of its lawyers not to be visited upon. The Applicant makes reliance on the Court of Appeal decision in the case of National Insurance Corporation versus Mugenyi & Co. Advocates, Court of Appeal Civil Appeal No. 14 of 1984 where the court considered the situation were a litigant had walked out of court for a few minutes and upon return to court found that his case had been  dismissed on grounds of non attendance with the court holding that there was sufficient cause for the non-attendance in the matter and hence directed the setting aside of the dismissal.

Relating the above holding to the instant situation, it is the contention of the Applicant that the mistaken but genuine fixing of a different date by the learned counsel for the Applicant ought to be considered as counsel is said to have genuinely believed that the file in question had been sent to the Mediation Registry as was previously requested by learned counsel for the Respondent. He annexed to the Affidavit in support of this Application an Annexture A which is the mediation notes to give credence to these facts as well as to prove the date when the mediation notes were actually received.

The Applicant therefore submitted that this court should find that the action above go a long way to show the initiative and intention taken by the Applicant through his counsel to prosecute the dismissed suit as the said action passed the test set in the case of National Insurance (Supra) where  Lubogo, J when  quoting the case of Lake Victoria Bottling Co. Ltd versus Anthony Constance, High Court Civil Suit No. 6 of 1962, held that the test to be applied as a general rule in such circumstances was to whether the party applying to set aside to order of dismissal honestly intended to be present at the hearing of the suit and did his best in the circumstances.

Further, the Applicant argued that the position of whether a litigant may be punished for the mistake of his counsel is now well settled. He brought to his reliance the decision of G. M. Okello, JSC of the Supreme Court, in the decision of Julius Rwabinumi versus Hope Bahimbisomwe (CIVIL APPLICATION NO. 14 OF 2009)where the learned justice was quoted to have stated that; “…it would be a grave injustice to deny an applicant such as this one, to pursue his rights of appeal simply because of the blunder of his lawyers when it is well settled that an error of counsel should not necessarily be visited upon his client…”, thus that this instant matter should likewise be allowed considering this decision binds this Honourable Court.

Apart from that, the Applicant prayed to this  Honorable Court to invoke its inherent powers under Section 98 of the Civil Procedure Act Cap 71 and Section 33 of the Judicature Act so as  to set aside the order of dismissal were it to find that there was no sufficient cause for the non-appearance by the Applicant. He relied on the holding in the case of Girado versus Alam & Sons (U) Ltd [1971]1 EA 448, where Gouldie J stated though  he was ;“… very far from satisfied that sufficient cause for non-appearance has been shown under Order 9 Rule 20... all the authorities support the view that the court has an inherent power to restore a suit dismissed for default even if no sufficient cause is shown.”

Therefore, the Applicant concluded that based on the above authorities and since it was in the interest of the justice that the suit is reinstated on the basis that it had high probability of success on its own merits., then it prayed that the civil suit No. 244 of 2013 be reinstated and the dismissal be set aside.

4 . Conclusion:

My assessment of this instant matter is that the dismissal of the main suit did occur as a result of the action of the counsel who was not only attentive but appears to not have followed the clear directions of court when he was in court. It is evident that orders of courts should not be taken in vain and as the Constitution of the Republic of Uganda commands, all persons and authorities are directed to help the courts carry out their function without let or hindrance. By purporting to indicate a different date from what was clearly announced in court, counsel was showing latent disrespect of court for which I would hold counsel personally liable.

In conclusion, while it is imperative from the holdings of the superior courts that the inadvertency of counsel should not be visited on innocent litigants I would find it preposterous for counsel even to allude to his confusion of placing the right information in his schedule when he should be always attentive and in case of doubt use all means to ensure that the right information is obtained.

In the premises I would allow this application but the learned counsel to bear personally the costs of this application since he had the duty to ensure due diligence upon instruction.

5. Orders:

In conclusion, I do make the following orders:

1. That this Application is granted with  HCCS No. 244 of 2013 being ordered reinstated
2. That Learned Counsel for the Applicant to personally meet the costs of this Application

I do so order accordingly.

HENRY PETER ADONYO

JUDGE

26^TH SEPTEMBER, 2014