Audu v Audu (Miscellaneous Application 25 of 2018) [2023] UGHC 345 (21 February 2023)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

### **HOLDEN AT LIRA**

## **MISC. APP NO .025 OF 2018**

(ARISING FROM APPEAL NO .13/2015 AND LAND CLAIM NO. 31/2015)

AUDU MARTIN ....................................

#### **VERSUS**

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AUDU HANNINGTON ....................................

#### **RULING**

#### **BEFORE: HON . JUSTICE ALEX MACKAY AJIJI**

This application for re-instatement of Civil Appeal No.13 of 2015 by a notice of motion dated 13th day of July 2018 on orders that:-

a) Appeal No .13 /2015 be readmitted and heard on its merits

b) Costs of this application be in the cause

The grounds of this application are contained in the affidavit of the applicant are that;

- 1) The applicant filed a notice of appeal no.13/2015 by himself in on the $8^{th}$ June 2015, a week after judgment was delivered against him in Apac Magistrates Court 29<sup>th</sup> May 2015. - 2) That the applicant duly facilitated typing of records of proceedings in the matter for appeal purposes and the same was forwarded to the High court - 3) That the appellant duly filed a ,memorandum of appeal setting out six grounds of appeal on the 30<sup>th</sup> June 2015 and served the respondent.

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- 4) That the appellants appeal was determined and dismissed without notice to the applicant or counsel as no notice of the date of hearing was served them. - 5) That the applicant later learnt from court registry that his appeal had been cause listed and dismissed. - 6) That the appellant lives on the disputed land and prays that the readmission of the appeal is in the interest of justice - 7) That unless readmitted the applicant stands to be evicted from his home that he has lived since 1982 in execution of the lower court decree. - 8) It is just fit and proper that the appeal is readmitted and have the appeal determined on merits.

# **Brief Background**

There is one ground in which the application is based, namely that the appeal was dismissed without notice to the applicant or to counsel of the date of hearing. Further that when the file was forwarded to the high court several attempts to fix the appeal came to nought as the file could not be traced from the registry. He later came to learn that the file was called and dismissed on the 26<sup>th</sup> March 2018 in the absence of the parties on the grounds that there is lack of progress under $\rm 0.17\ R\ 6$ of the Civil Procedure Rules.

The applicant was represented by Counsel Omara Innocent of M/S Omara & Co. Advocates and solicitors while the Respondent was represented by Counsel Oyugi Onono of M/S Oyugi Onono &Co, Advocates.

Both parties made written submissions.

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Counsel Omara for the applicant submitted that clearly the appellant court did not have the benefit of looking at the memorandum of appeal filed by the appellant way back. That one wonders what would have happened had the court been aware of the fact of existence of all documents to enable the court hear this appeal. Further that the rule under which the appeal was dismissed only provides a remedy to other party to file a fresh suit if still within the law of limitation. The time of filing an appeal in this matter had long passed if it is provision of 0.17r6 was also meant to deal with appeals and not original suits only. Therefore In this particular case the section 98 of the Civil Procedure Act is called into aid because the appeal is dismissed under the rule which does not provide for reinstatement and there is no specific procedure provided to reinstate it. Hence the appeal was dismissed on ground that there was no memorandum of appeal on file and yet the truth is that the memorandum was already filed and the appellant did not have the opportunity to present their case because he was not aware when the case came up.

On his part counsel. Oyugi onono who appeared for the respondent 1<sup>st</sup> raised a preliminary objection that the applicant had no competent appeal for failure to serve the respondent with notice of appeal and memorandum of appeal and further in this circumstance, the applicant ought to have applied for review and not reinstatement.

Further that the appeal the applicant is seeking to reinstate is not competent on grounds of failure to serve a notice of appeal and memorandum of appeal, Upon filing on 8<sup>th</sup> June 2015 and 30<sup>th</sup> June 2015 respectively . By failing to serve the respondent, the applicant has no competent appeal hence no need to reinstate

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such an incompetent case . Despite the fact that he stated in his affidavit that he filed a notice of appeal on $8^{\mbox{\scriptsize th}}$ June 2015 and served the respondent , he did not state the date when he served the respondents further that the they did not file an affidavit of service to the application . Hence the appeal is not competent hence $% \mathcal{L}_{\mathcal{A}}$ no need to reinstate an appeal which is not competent because if reinstated, still chances are high that the respondent will seek to have the same declared a nullity and struck out with costs.

#### **COURT's ANALYSIS**

Rule 99(2) of the Court of Appeal rules of this court upon which this application is based reads as follows;

99(2) where an appeal has been dismissed under sub rule (1) or any cross appeal $\,$ heard $\,$ under that sub rule $\,$ has been allowed $\,$ , the appellant may apply $\,$ to the court to restore the appeal for hearing or to rehear the cross appeal $% \left( \mathcal{L}\right)$ , if he or she can show that he or she was prevented by any sufficient cause from appearing when the appeal $was called on for hearing$ .

Subrule (2) above must, however be read together with sub rule (5) of the same rule 99. Inorder for an application to succeed under rule 99(2) he must satisfy the court that he or she was prevented by sufficient cause depends on facts of each individual case. The test here is whether the applicant intended to attend court and did the best he could to attend in vain .(see. National Insurance Corporation vs Mugenyi &Co. Advocates [1987]HCB 284

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In the case before me, the applicant swore an affidavit that on the 30<sup>th</sup> June 2015 his lawyers duly filed a memorandum of appeal and the same was served upon the respondent. That he tried to fix the case for hearing several times but the appeal file was misplaced and could not be traced from the registry.

Not only has the plaintiff failed to prove the alleged

I have accordingly considered whether a dismissal for want of prosecution can be set aside. The dismissal is made under O17 Rule 5 of the Civil Procedure Rules which provides as follows;

$\hbox{``If the plaintiff does not within eight weeks from the delivery of any defence\, or\,,$ whereas counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing then the defendant may either set down the suit for hearing or apply to court to dismiss the suit for want of prosecution and on the hearing of the application the court may order the suit to be dismissed accordingly, or make such other order, and on such terms, as to the court may seem just ."

In this particular case, the applicant was absent when the suit was called for hearing. The court went ahead and dismissed the case based on the conduct of the applicant of not including the memorandum of Appeal and also not appearing when the file was called for hearing. Since there was no memorandum of appeal on record of court that day, the appeal was dismissed. Therefore the applicants raised the defence that the appeal file was misplaced and could not be traced from the court registry. Further that they did not appear for the hearing because they had no idea about the day the case was fixed for hearing. Despite the fact that the

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cause list had circulated to all advocates on public notice, the advocates and the applicant did not see it.

A dismissal for want of prosecution is not based on non-appearance of the plaintiff or applicant but on failure to take necessary steps to fix the application for hearing within the stipulated time under order 17 rule 5 of the civil procedure rules. I therefore find that the advocate / applicant did not take necessary steps to go ahead and find out the if this matter had been fixed for hearing. Also the reasoning of counsel about the file being misplaced is not logical enough since, they should have availed a duplicate file to enable the hearing of the matter go on.

Therefore in the instant case, I find there was no sufficient reason adduced by the applicant to warrant reinstatement of the appeal and the application has no merit and is therefore dismissed. Since the applicant has lost the case. I exercise this court's discretion and powers under section 98 of the civil procedure Act and Section 33 of The Judicature Act to absolve him from costs . Each party shall therefore meet their own costs.

Dated at Lira, this $\frac{1}{2}$ of $\frac{200}{2023}$

ALEX MACKAY AJIJI

**JUDGE**

$2182/02/2023$

Curri Pardies abssent<br>Poorylou of Chena<br>Jusquand deliver Corona