Bagira v Murugutu and Another (Miscellaneous Application 108 of 2023) [2024] UGHC 706 (12 July 2024)

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORTPORTAL**

### **MISCELLANEOUS APPLICATION NO.108 OF 2023**

#### **(ARISING FROM HCT-01-LD-CA-007 OF 2021)**

*(Arising From Civil Suit No. 13 Of 2019 Before the Chief Magistrate's Court Bundibugyo at Bundibugyo)*

| BAGIRA MADINA | ::::::::::::::::::::::::: APPLICANT | |---------------------------|-------------------------------------| | | VERSUS | | 1.<br>MURUGUTU JULIUS | :::::::::::::::::::: RESPONDENTS | | 2.<br>BALUKU WILSON ABAHO | |

# **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO RULING**

#### **Introduction**

This application was filed by way of notice of motion under section 98 of the Civil Procedure Act Cap. 282 and Order 9 Rules 23, and 52 Rule 1 and 3 of the Civil Procedure Rules SI 282-1 seeking the following orders:

- I. The dismissal of Miscellaneous Application No. 13 of 2019 be set aside and the same be reinstated. - II. The respondents provide for the costs of this application.

## **Background**

The applicant instituted Civil Suit No. 13 of 2019 against the respondents before the Chief Magistrate's Court of Bundibugyo at Bundibugyo for a declaration that the suit property belongs to the estate of the late Byamaka B. Manishuri, a declaration that the respondents are trespassers on the suit property, permanent injunction, eviction order, general damages and costs of the suit. The trial Magistrate Grade 1 dismissed the suit for being barred by the law of limitation. Aggrieved by the decision of the trial Magistrate Grade 1, the applicant filed Civil Appeal No. 007 of 2021 before this honourable court.

However, after filing the appeal, the applicants did not take essential steps to prosecute the same. This court dismissed the said appeal for want of prosecution under order 43 Rule 31 of the Civil Procedure Rules on the 21st of March 2023.

## **Grounds in Support of the Application**

The grounds of this application are set out in the affidavit of Bagira Madina, the applicant herein, the gist of which is that:

- a) The applicant filed an appeal Vide Misc. Application No. 007 of 2021 through her former lawyers, *M/S Aguma Kifunga & Co. Advocates,* on the 16th day of March 2021 in this honourable court. - b) Before the commencement of the appeal, counsel in personal conduct, the late Anguma Kifunga, was brutally murdered.

- c) After the death of counsel in personal conduct of the matter, there was no lawyer left in the law firm or willing to handle the appeal. - d) After exercising due diligence by following up on the appeal, the applicant found that the appeal had been dismissed by this honourable court for want of prosecution. - e) The death of counsel in personal conduct of the appeal prevented the applicant from pursuing the appeal. - f) The applicant has a sufficient cause that prevented her from pursuing the appeal. - g) The respondent will not be prejudiced by the reinstatement of the said appeal in any way. - h) It is just and equitable that this honourable court grants the application.

The respondents filed an affidavit in reply deponed by Murugutu Julius, the 1st respondent, opposing this application on the following grounds:

- a) The respondents were served with two applications, (i) Msc. Application No.86 of 2023 filed and received by this court on 7th September 2023, and (ii) Misc. Application No. 108 of 2023 was filed and received by this court on 5th December 2023. - b) Civil Suit No. 13 of 2019 which the applicant seeks to reinstate was not dismissed by this court. - c) The applicant has never filed Misc. Application No. 13 of 2019 in this court.

- d) Instead, the applicant filed Civil Appeal No. 007 of 2021 on the 17th of March 2021. - e) The applicant filed civil suit No. 13 of 2019 against the respondents in the Chief Magistrate's Court of Bundibugyo at Bundibugyo and the suit was dismissed for being barred by the law of limitation. - f) The applicant did not follow up on the said appeal for over two years and the same was dismissed on the 21st of March 2023 for want of prosecution. - g) The dismissal of Civil Appeal No 007 of 2021 was justified and the applicant has not provided sufficient grounds as to why the said appeal should be reinstated. - h) While it is true that the late Guma Kifunga was murdered on the 26th of March 2022, there were no steps taken to fix the appeal and have it heard and determined before or after his death. - i) The applicant's assertion that the death of counsel prevented her from pursuing the appeal is baseless. - j) The applicant is guilty of inordinate delay and this application is incompetent, unfounded and should be dismissed with costs.

# **Legal Representation.**

The applicant was represented by Mr. Sekitoleko Stephen while Mr. Abubaker Muzafar represented the respondents. Both counsel filed written submissions which I have considered in this ruling.

# **Issues for determination**

The issue for determination is whether the application raises sufficient grounds for this court to set aside its dismissal order and reinstate Misc. Application No. 013 of 2019.

## **Submissions by Counsel for the Applicant**

In arguing this application, counsel for the applicant submitted that the applicant had shown sufficient cause that prevented her from pursuing the appeal. Counsel argued after the death of the applicant's lawyer, there was no other lawyer in the law firm willing to pursue the applicant's case and this prevented the applicant from prosecuting her appeal.

Counsel referred this court to the case of *National Insurance Corporation Vs Mugenyi & Co. Advocates [1987] HCB 28* to argue that the applicant honestly intended to attend the hearing.

Counsel argued that the administration of justice normally requires that substantive disputes be investigated and decided on their own merits and errors or lapses should not necessarily debar a litigant from the pursuit of his rights. Counsel submitted that a vigilant applicant should not be penalised for the fault of his counsel on whose actions, he has no control. Counsel cited the case of *Florence Nabatanzi Vs Naome Binsobodde SCCA No. 06 of 1987*.

# **Submissions by counsel for the Respondents**

Counsel for the respondents submitted that there are two applications before this court which were filed by the applicant and

are identical. That is Misc. Application No. 86 of 2023 and Misc. Application No. 108 of 2023.

Counsel argued that the orders being sought by the applicant in the two applications cannot be granted by this court because Civil Suit No. 13 of 2019 was before the Magistrate Grade 1 of the Chief Magistrate's Court of Bundibugyo at Bundibugyo and that there has never been Misc. Application No. 13 of 2019 between the parties herein filed in this court.

Counsel argued that the orders being sought are untenable and therefore the application should be dismissed with costs.

In the alternative, counsel for the respondents argued that the applicant never showed interest in pursuing Civil Appeal No. 007 of 2021. Counsel for the respondents submitted that whereas the appeal was filed in this court on the 17th of March 2021, the applicant's counsel died on the 16th of March 2022, a year from the date of filing of the appeal, and even then, the appeal was also dismissed on the 21st of March 2023, over a year after the death of counsel.

Counsel argued that the applicant has not advanced sufficient reason as to why she did not pursue the appeal apart from making baseless allegations that there was no lawyer left in the law firm or willing to handle her case.

Counsel for the respondents argued that failure to instruct an advocate is not a sufficient cause.

## **Consideration by Court**

Before I delve into the merits of this application, I will first deal with the preliminary issues raised by counsel for the respondents. First, there are two identical applications, that is Misc. Application No. 86 of 2023 and Misc. Application No. 108 of 2023, before this court. Second, the orders sought in this application are untenable.

On the two applications in issue, this court record shows that Misc. Application No. 86 of 2023 was dismissed for want of prosecution with no order as to costs on 29th of November 2023. The applicant filed the instant application on the 5th of December 2023, perhaps, upon learning Misc. Application No. 86 of 2023 had been dismissed. Therefore, there is only one substantive application before this court: the instant one.

On the untenability of the orders sought in this application, I notice that, in this application, the applicant seeks for reinstatement of Misc. Application No. 13 of 2019. As rightly argued by counsel for the respondents, the applicant never filed Misc. Application No. 13 of 2019 in this court. What the applicant filed in this court is Civil Appeal No. 007 of 2021 which arose from Civil Suit No. 13 of 2019 before the Chief Magistrate's Court of Bundibugyo at Bundibugyo.

Therefore, this court cannot waste its precious time to determine whether a reinstatement should be made for a matter in which the applicant is not a party and has no interest. I find that the orders being sought by the applicant have no basis and are unattainable in the circumstances.

The applicant had the opportunity to rebut or clarify the preliminary issues raised by counsel by filing an affidavit in rejoinder or submissions in rejoinder but chose not to do so.

Without any clarification from the applicant, this court cannot speculate or do guesswork that the applicant is seeking for the reinstatement of Civil Appeal No. 007 of 2021.

In the premises I find this application to be incurably defective, and there is no need to delve into its merits.

Resultantly, this application is hereby dismissed with costs to the respondents.

It is so ordered.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**