Last updated on August 16th, 2024 at 09:36 am
The High Court of Uganda (Civil Division) has set aside its ex parte ruling against a respondent (present applicant) over a mistake of his counsel after the lawyer what was intended to be an affidavit in reply in the form of a Written Statement of Defence (WSD) prompting the then presiding Judge to struck out the “affidavit” and allow the matter to proceed ex parte.
In a Judgement delivered on 15th July 2024 in the case of Segonga T/A Platinum Associates v. Johnson Katebalirwe, Justice Boniface Wamala of the High Court set aside the High Court’s ex parte ruling in the revision cause that challenged the decision of the Magistrate Grade One at Nakawa on account of lack of Jurisdiction in issuing a sale order in favor of the then respondent (present applicant) against the applicant (present respondent) allowing the former, on behalf of a landlord, to sell the latter’s property over rent arrears, and allowed the matter to be heard between both parties (inter partes) after finding that Counsel’s mistake was sufficient cause to set aside the proceedings per Order 9 Rule 27 of the Civil Procedure Rules.
The Judge reasoned that Counsel’s mistake whereby he filed the should-be affidavit in opposition to the revision cause with his signature instead of the client’s and a commissioner of oath’s stamp should not be visited on his client and that denying a subject of proceedings a chance to be heard should be the last resort and that it was therefore just that he be heard.
The Judge relied on National Enterprises Corporation v. Mukisa Foods (Court of Appeal Civil Appeal No. 42 of 1997) for this proposition and the Supreme Court case of Banco Arabe Espanol v. Bank of Uganda (SCCA No. 23 of 1999) for the proposition that: “the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and lapses or errors should not necessarily debar a litigant from pursuit of his rights.”
Interestingly though, the Court found that the present applicant was served with the court process but did not attend the hearing of the matter, and neither did his counsel on the court record.
The Court could not find an explanation for this and did not criticize the present applicant for this seeming lack of vigilance going by the court’s previous decisions on mistake of counsel as sufficient cause for setting aside court decrees where the Court has held that a client has a duty to follow up on the progress of his or her matter and he or she should not instruct a lawyer and relax in following up on his or her case. (see for example).
As we reported here, Justice Boniface Wamala’s decision illustrates the highly subjective nature of client vigilance or lack thereof vis a vis counsel’s mistake or negligence and the role it will play in the Court’s consideration of sufficient cause to set aside its decree.
“On the case before me, it was averred by the Applicant that he discovered on the day of the hearing that his affidavit in opposition was neither signed by him as the deponent nor commissioned by a commissioner for oaths despite having given his instructions to his former lawyers. The Applicant averred that he often followed up with his lawyers who told him that they had filed his affidavit in opposition. The Applicant however does not explain why neither his lawyers nor himself appeared in court on the day the matter came up for hearing. Failure to file a proper reply to the application would not preclude the
party from appearing at the hearing.” Justice Boniface Wamala stated.
“Be that as it may, the Applicant has heavily relied on the ground of mistake by his advocate as constituting sufficient cause for his failure to take the essential steps in the matter. It is apparent that the Applicant duly instructed counsel to handle his matter. The advocate drafted an affidavit in reply but made it in the form of a written statement of defense, signed it off as such, and filed it. The advocate made no appearance on the day of the hearing. This was grossly negligent conduct on the part of the advocate. Since the Applicant had duly instructed the advocate, he had executed his responsibility in the
matter. He cannot be blamed for the professional negligence of his advocate. I am also of the view that where a party has relied on the advocate’s skill and diligence, non-appearance by the party on the day of the hearing is excusable. As such, on account of the mistake and negligence of counsel, as shown above, the Applicant has established that he was prevented by sufficient cause from taking the steps that were essential to his participation in the matter. This is sufficient to move the court to set aside the ex parte proceedings, ruling, and orders of the court.” He ruled.
Parties: Segonga T/A Platinum Associates v. Johnson Katebalirwe Counsel; Mr. Nakueira Musa from
M/s LMN Advocates (for the Applicant).
