THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO. 789 OF 2014

(Arising from Civil Suit No. 016 of 2013)

TRANSAFRICA ASSURANCE CO LTD:::::::::::::::::APPLICANT

VERSUS

LINCOLN MUJUNI::::::::::::::::::::::::::::::::::::::::::::::::::REPONDENT

BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO

RULING

This is an application brought by way of Notice of Motion under Section 33 of the Judicature Act, Order 9 rule 27, Order 52 Rules 1, 2 & 3 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking for Orders that the default judgment and decree dated the 28^th day of August 2014 entered in favour of the Respondent in HCCS 16 of 2013 be set aside, the suit be set for hearing and costs of the application.

The grounds on which this application is premised are set out in the Affidavit of Ronald Asiimwe, an Advocate with personal conduct in HCCS 16 of 2013. In brief he deposed that he was indisposed and could not attend court on the day of the hearing and sent an attorney from his law firm to seek an adjournment only to find the matter had been fixed for judgment. Further that he wrote a letter on the 7^th day of June 2014 explaining his reasons for non attendance and seeking that the matter be set for hearing but judgment was entered against the Applicant.  Mr Asiimwe deposed that he was prevented by sufficient cause from attending the hearing and that it is in the interest of justice that the matter be reinstated.

The Respondent opposes this application in that he deposed that the application had no merit and was merely an attempt to delay him from enjoying the fruits of the judgment which was made in his favour.

Further that if counsel for the Applicant had been unable to attend court, he should have notified the court or counsel for the Applicant in advance. He sought that the Application be dismissed as it has no basis to set aside the judgment and decree.

I have considered the Application and the subsequent pleadings together with the written submissions.

The background to this application is that HCCS No.16 of 2013 was filed on the 14^th day of January, 2013. Since then the matter encountered a myriad of adjournments and was eventually dismissed on the 21^st day of February, 2014 for want of prosecution only to be reinstated later that day after Counsel for the Plaintiff/Respondent showed that he was adhering to a hearing notice which indicated a different time. Thereafter, the matter kept being adjourned due to absenteeism of either party with its and was ultimate fixing for hearing on 12^th June 2014 in the absence of both parties and hearing notices were issued.

On the 12^th day of June, 2014 6only Counsel for the Plaintiff was in court despite proof of service to the Defendant’s counsel. The court then allowed the matter to proceed ex parte under Order 9 Rule 20 of the Civil Procedure Rules with Counsel for the Plaintiff being asked to file submissions thereon on or before the 11^th day of July 2014 with the matter then being fixed for judgment on the 28^th August, 2014.

On the 7^th day of July, 2014, the firm representing the Defendant wrote to this court notifying it that Counsel with personal conduct in HCCS No. 16of 2013 was indisposed on the 12^th day of June, 2014 and sent a member of the firm to the court with the request that the matter be adjourned. This person arrived at court after the matter had already been called with a  letter which sought that the Defendant be given an opportunity to be heard when the matter next comes up on the 28^th day of August , 2014.

On the 28^th day of August, 2014, judgment was entered in favour of the Respondent.

The Applicant then made the instant application to have the default judgment and decree entered thereafter set aside

Order 9 Rule 27 of the Civil Procedure Rules provides:

In any case in which a decree is passed ex parte against a defendant, he or she may apply to the court by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the summons was not duly served, or that he or she was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also.

The rationale for this rule lies largely on the premise that an ex-parte judgment is not a judgment on the merits and where the interest of justice are such that the defaulting party with sound reasons should be heard then that party should indeed be given a hearing.

In the case Nyombi versus Ann Mary Nalongo [1987] HCB 82 it was held that the reasons for setting aside an ex-parte judgment were unlimited. Furthermore it was noted that the court had wide discretion to look at the whole proceedings of the ex parte judgment and the subsequent actions taken.

In the instant matter, it is alleged that Counsel for the Applicant was prevented by sufficient cause from appearing when an order was made to proceed ex parte and upon service of the hearing notice. This is evidenced by averments showing that Counsel was indeed out of the country attending to his wife who was having complications with pregnancy. Evidence of this by the birth certificate and passport annexed to the Application which apparently shows that counsel was prevented by sufficient cause from appearing in court within the wording of Order 9 rule 27 of the Civil Procedure Rules.

Further, it is trite that defendant who wishes to set aside an ex parte judgment must show that he/ she act reasonably and promptly in making the application for the court to believe that he /she had reasonable cause. In the instant matter, the record of the court shows that the judgment was delivered on 28^th day of August, 2014 and the applicant subsequently filed the current application to set aside the judgment and decree on 8^th day of September, 2014. This was a few days thereafter. In those circumstances it can be reasonably taken that the application was made with haste and within allowable time and hence ought to be considered.

The other matter to consider is the merits of the suit. The issues as framed in the ex parte judgment 28^th August 2014, page 3 thereof are as follows:

(1) "Whether the Plaintiff’s motor vehicle was insured by the Defendant and whether the insured risk occurred;

(2) Whether the Plaintiff was privy to the insurance contract with the Defendant in respect of motor vehicle UAH 616L;

(3) Whether the Plaintiff’s claim is fraudulent and,

 (4) Remedies”.

It is clear to me that the questions of whether the plaintiff’s motor vehicle was insured by the Defendant and of the contractual relationship arising from the insurance contract were determined without any input from the side of  the defence. This is contrary to the right of a party in a matter to be heard especially where the person has exercised all due diligence to do so. The right to be heard is an inherent tenet of a fair trial which is enshrined in Article 28 of the Constitution.

The Applicant has shown by affidavit evidence why it was not present in this matter and indeed it is clear that these issues framed were not tested by either party adducing evidence to enable the court to conclusively determine them as they were not   determined inter party .

From the affidavit evidence in respect of this matter , I am satisfied that the Applicant was not able to make an input in this matter due to very compelling reasons which is that of absence of his counsel whom hi had given brief. From the deposition in this matter, it is apparent that counsel for the Applicant had sufficient cause has which prevented him from attending court to defend the interests of his client. The interest of justice, therefore, in this matter would call for the court to exercise its discretion in the favour of the Applicant so that this matter can be heard on merits and inter parties to enable the court to conclusively deal with all the issues in this dispute and finally disposed them off leaving no room for multiple disputes.

In the premises, I would be constrained to allow this application and set aside the judgment and orders in HCCS No.16 of 2013. The Applicant is directed to seek the earliest dates when this matter should be heard inter party.

I would also order the costs of this Application to be in the cause.

I do so order accordingly.

Henry Peter Adonyo

Judge

30^th October, 2014