Justice Suzan Adongo of the Commercial Division of the High Court has directed businessman Haruna Ssentongo brother to controversial businessman Hamis Kiggundu and Isaac Nsereko of Downtown bags limited and their lawyers to appear before the registrar of the said Court within seven days after delivering her ruling on the missing file and submit all the respective pleadings they have ever filed in the said case.
The judge added that upon submissions of all filed pleadings by both parties, the court file will be deemed to have been reconstituted and he will proceed with the hearing of the main suit which involves a Shs2bn commercial transaction.
The judge said that she cannot hold the proceedings of the matter which was filed in 2019 because parties are contesting on a duplicate file filed on Court record without the direction of the court.
She explained that the file got lost when the matter was still at the pleading stage and no hearing had taken place.
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“The prayer to stay proceedings to reconstitute the file is utterly redundant and does not aid the progress of the matter which has stalled before this court. It would be easy to reconstitute the file in one sitting. The position of this court would, however be different if the matter was partly heard,” the judge stated
She further directed parties to file their pretrial documents within seven days after reconstitution of the file and appear before her for scheduling conference.
The decision resulted from the protest made by Ssentongo and his lawyers led by Commercial law giant Derrick Bazekuketta of Olympia Advocates who accused Nsereko and his lawyers led by Isaac Walukaga of MMAKS Advocates of fraudulently smuggling a duplicate case file to the Court system without their involvement as a party and direction from court.
Bazekuketta pleaded to Court in writing to cross-examine both Nsereko and his lawyers to establish how they recovered the lost file and loaded it onto Courts Electronic Court Case Management Information System (ECCMIS) a prayer which was rejected by the presiding judge.
According to Court records, on 30th June 2017, Ssentongo and Nsereko’s company entered into a contract for the sale of property situated at Kibuga Block 12 Plot 825 Kisenyi by which Nsereko’s company was to pay a total consideration of USD 700,000 in two instalments
He paid USD 600,000 into Ssentongo’s bank account upon signing of the agreement, and USD 100,000 was to be paid once Ssentongo provides a complete file bearing all relevant drawings and requirements.
In his case, Ssentongo accused Nsereko of failing to comply with his obligations under the agreement and he filed a suit in 2019, registered as HCCS No. 0458, seeking relief against him.
Nsereko filed his defense denying the claims brought against him and later filed amendments to the written statement of defense including a counterclaim.
In his application to strike out Nsereko’s defence and Amended Written Statement of Defense and counterclaim, Ssentongo alleged that Nsereko filed the said pleadings without obtaining prior leave of Court.
He insisted that no application for leave to file the pleadings out of time was made or granted and thus the counterclaim constitutes a fresh cause of action wher leave of Court is a prerequisite to its filing, which was not sought.
“Additionally, it is noted that the Court record in this matter has been lost from the registry for more than four years by that time,” Court records read.
In his response, Nsereko told Court that his counterclaim and defense was filed through his former lawyers of Kasirye Byaruhanga & Co. Advocates not MMAKS Advocates.
He added that the said documents were filed when the matter was before Justice Boniface Wamala and before he delivered his ruling, Nsereko’s lawyers by then of Kimara & Co. Advocates consented in writing to the validation of the documents they had filed out of time through a letter dated 30/10/2020.
“The respondent avers that while the suit was pending, the original Court file went missing, prompting the respondent’s new Counsel, M/s MMAKS Advocates, to open a duplicate file to allow proceedings to continue. The duplicate file was duly opened and the matter was set for hearing before Justice
Harriet Magala, with the Court record complete,” Justice Adongo stated in her ruling
In their rejoinder, Bazekuketta insisted on cross-examining Nsereko and his lawyers insisting that there are a lot of falsehoods and contradictions in their defense concerning the fraud they placed on the Court record. However the judge declined to allow the prayer.
“The applicant sought to cross-examine Mr. Isaac Nsereko and MMAKS Advocates. The applicant stated that the respondent filed MA No. 1248 of 2019 seeking enlargement of time for filing a counterclaim without any prayer for amendment of the defence. That the applicant has never consented to or instructed his former lawyers, Kimara Advocates and Consultants to consent to any validation of any amended defense and counterclaim in MA No. 1248 of 2019 as alleged,” the judge added.
She agreed with Bazekuketta that Nsereko and his lawyers have no judicial power to direct the said action of making a duplicate court file and later on loading it onto the court record.
“That the unlawful electronic file had been clandestinely created by the respondent with documents unlawfully filed and with allegations of non-existent court orders,” she added
However, she guided that even though Nsereko filed his documents out of time with other legalities, the admission of his documents onto the court record would enable court to address all controversial issues between the parties comprehensively.
Sher added that refusing to validate Nsereko’s documents and counterclaim would effectively deny him access to justice and deny the court the opportunity to resolve the dispute within a single proceeding.
“Having pronounced that the 2nd amended defense and counterclaim was filed out of time and without leave of court, I hereby validate the same. Therefore, the 2nd amended defense and counterclaim is admitted on the court record and will be considered in the resolution of HCCS No. 458 of 2019,” she stated.
