Bahambiriza v Rugadya and 2 Others (Civil Appeal 21 of 2022) [2024] UGHC 433 (29 February 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

### Civil Appeal No. 21 of 2022

(Formerly MSD-CA-004 of 2022) (*Arising from Misc. Application No. 005 of 2021*)

#### BAHAMBIRIZA BINDINDWALI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. RUGADYA KISEMBO 2. MUGISA IELOUS 3. KOROKONI ROBERT

#### **RESPONDENTS**

(Appeal from the Ruling and Orders of the Magistrate Grade 1 of the Chief Magistrate's Court of Buliisa at Buliisa, H/W Komakech Kenneth, dated 11th January, 2022 in Misc. *Application No. 005 of 2019)*

Before: Hon. Justice Byaruhanga Jesse Rugyema:

## Judgment

# **Background:**

- The Appellant herein filed land **C. S. No. 012 of 2019** in the Chief $[1]$ Magistrate's Court of Buliisa at Buliisa against the Respondents seeking among others, a declaration that he is lawful/rightful owner of unregistered land measuring approximately 19 acres situate at Kasinyi village, Kigwera Sub county in Buliisa District. - The Respondents/Defendants filed a Joint Written Statement of $[2]$ Defence on the 18th September, 2019 wherein they denied the Appellants allegations and contended that they are beneficiaries of the late Wandagali, the original customary owner of the suit

land measuring approximately **210 acres** where they have lived for a long time and have over years utilized the land for cultivation of food or cash crops, grazing, residence and derive a livelihood, enjoyed uninterrupted use, occupation and possession interference the until without anv whatsoever when Appellant/Plaintiff started claiming it.

- On 28th April, 2021 the Appellant having not taken any step in the $[3]$ matter (for a period of over $1\frac{1}{2}$ years), Court dismissed the suit for want of prosecution. - On the 18th of May 2021 the Appellants filed Misc. Application $[4]$ **No. 005 of 2021** in which he sought to set aside the Court's order dismissing the said suit and have it reinstated so that it could be heard on its merits. The Application was unfortunately dismissed by the trial Magistrate hence this Appeal in which the Appellant seeks to set aside the decision of the trial Magistrate dismissing his Application to set aside the order dismissing the suit. - The Appeal is premised on 2 grounds as stated in the $[5]$ Memorandum of Appeal, they are as follows. - That the learned trial Magistrate Grade 1 erred in fact, $1.$ when he failed to evaluate the evidence on record thereby coming to a wrong conclusion that no sufficient cause had been shown to exist hence dismissing the Application of reinstatement. - The learned trial Magistrate erred in law and in fact when $2.$ he held that the Appellant/Applicant never showed any diligence nor did he demonstrate to Court that he honestly

intended to be present during the hearing of his case, and that he was quilty of dilatory conduct.

### **Counsel legal representation**

$[6]$ The Appellant was represented by Mr. Omara Daniel of Amani Law Chambers & Co. Advocates, Hoima while the Respondents were represented by Mr. Murungi Ronald of Aeton Advocates, **Masindi.** Both Counsel filed their respective written submissions for consideration in the determination of this Appeal.

## **Submissions of Counsel for the Appellant**

- Counsel for the Appellant submitted that there was sufficient $[7]$ cause for none appearance of the Appellant/Applicant/Plaintiff in C. S. No. 12 of 2019 when the suit was called for hearing hence that it was erroneous for the Magistrate to have held that the Appellant had not showed sufficient cause. The Appellant deposed in his Affidavit in support of the Application for setting aside the dismissal order that he was sick and was admitted in hospital in **December**, 2019 for one month and that upon his return, he inquired from Court and he was informed that Court was suspended till the end of COVID19. That on 30th April, 2021 when he returned again to inquire about his case, he was informed that his case was dismissed for want of prosecution. - [8] Counsel contended that had the trial Magistrate evaluated the evidence as contained in the Affidavit in support of the Application, he would have come to the right conclusion that there was sufficient cause to warrant setting aside the dismissal order of the suit because:

- $(a)$ The Appellant was sick - Upon return from the hospital, he inquired and was told by $(b)$ the Court clerk that all Courts were suspended due to COVID19. - unrepresented, the Appellant $(C)$ being acted on That information that was given to him from Court by the Court clerk. - trial Magistrate should have exercised his $(d)$ That the discretion judiciously and take judicial notice of the fact that the country at that time was grappling with COVID and there were restrictive measures of movement. - That the case being a land matter which is emotive in nature $(e)$ with high probabilities of escalating conflicts if not resolved, it was proper for the trial Magistrate to set aside the order dismissing the suit and have it heard on its merits. - Lastly, Counsel submitted that under O.9 r 22 CPR under which $[9]$ Misc. Application No. 005 of 2021 was dismissed, there must be evidence that either the suit had been fixed for hearing by the Plaintiff and on that date fixed by him/her, he/she did not appear in Court, or that, if the suit had been fixed by Court on its own motion, or by the defendant and hearing notices were issued and served upon the Plaintiff, and that on that date stated in the hearing notices the Plaintiff did not appear when the suit is called for hearing, then the Court could go ahead and dismiss the suit for none appearance of the Plaintiff. That in the instant case, there was no evidence of the above thus warranting the dismissal

of the said suit under **O.9 r 22 CPR**. That the trial Magistrate's findings were therefore without any evidence. That it was therefore erroneous for the trial Magistrate to find that the Appellant did not demonstrate that he honestly intended to appear on the date when his case was called for hearing and was therefore not guilty of any dilatory conduct on his side.

# **Submissions of Counsel for the Respondent**

Counsel for the Respondent submitted that the trial Magistrate $[10]$ properly evaluated the evidence on record and rightly dismissed Misc. Application No. 005 of 2021 owing to the Appellant's failure to produce sufficient evidence to the satisfaction of Court and to his failure to take a proactive step in the main suit for over one and a half years following the taking out and service of summons. The inordinate delay between **August**, 2019 when C. S. No. 12/2015 was filed and April, 2021 when it was dismissed for want of prosecution is not excusable in the circumstances.

## **Consideration of the Appeal**

$[11]$ First of all, it is not true and correct that the trial Magistrate dismissed the main suit under **0.9 r 22 CPR**. The suit was never fixed for hearing on the 28th April, 2021 when it was dismissed for want of prosecution, it was merely cause listed for action under the inherent power of Court in order to curb abuse of Court process. Court on its own motion dismissed the suit for want of prosecution upon the Plaintiff failing to take steps to prosecute it. Though the trial Magistrate did not record the provision of the law under which he dismissed the suit, it is apparently clear that the

- applicable law here is under $S.17(2)(a)$ of the Judicature Act, where under the inherent powers of Court, suits may be dismissed for want of prosecution to avoid abuse of process. - [12] In the Court of Appeal in the case of **Agnes Nanfuka Kalyango &** Ors Vs. AG & Anor C. A. C. A. No. 64 of 2000, instances in which Court would invoke its inherent powers to dismiss a suit for want of prosecution included where the was inordinate delay. - In the instant case, failure by the Appellant to take any step with $[13]$ the view to proceed with the suit he filed for a period of over $1\frac{1}{2}$ years amounted to inordinate delay. As observed by the House of Lords in Grovit & Ors Vs. Doctor & Ors [1997] 1 ALL ER 417;

"The Courts exist to enable parties to have their disputes resolved. To commence and to continue litiaation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the Courts will dismiss the action"

[14] In the Bushenyi District Council Vs. Musisi Fred, H. C. M. A. No. 304 of 2021, Justice Sekaana Musa while dismissing an Application to set aside the order for dismissal of **Civil Appeal No. 29 of 2018** had this to say:

> "An essential requirement of justice is that it should be dispensed as quickly as possible. It is a well-

known adage that 'justice delayed is justice denied'. The delay by litigants should be punished by dismissal of such suits in accordance with Civil Procedure Rules"

- $[15]$ In the instant case, failure or omission by Court not to act on such a matter filed by the Appellant and left in the system would not only hurt the Respondent/Defendant who would live under the apprehension of a suit existing on his head and the resultant anxiety, but also Court, which will be guilty of dereliction of its duty as it watches the piling of backlog, a monster it has had to fight for the last 2 decades, then the adverse effect which delay can have on the reputation and efficiency of the civil justice system as a whole. Therefore, the Appellant had a duty to prosecute his case and when he failed, Court on its own motion had to intervene and dismiss the suit in order to curb abuse of process. - [16] As rightly put by Counsel for the Respondents, even if the Appellant's claim had not been dismissed for want of prosecution by Court on its own motion, the suit would still have suffered a "stillbirth" and abated for offending O. XI A rule 1(2) CPR (Amended) Rules 2019 which is to the effect that:

"Where a suit has been instituted by way of a Plaint, the Plaintiff shall take out summons for direction within 28 days from the date of the last reply or rejoinder referred to in rule $18(5)$ of Order VIII of these Rules"

$[17]$ In the instant case, the Respondents filed their written statement of defence on 18th September, 2019. From that time, the Plaintiff took no action to take out summons for direction by the due date of 16th October, 2019 prior to his alleged hospital admission of December, 2019 as required under O. XIA rule 1(2) CPR (as amended). Under rule 1(6) CPR.

> "If the Plaintiff does not take out a summon for direction in accordance with sub rules $(2)$ or $(6)$ , the suit shall abate".

In view of the above, the suit would be dismissed for having abated for failure to take out summons for direction within 28 days of filing Written Statement of Defence or last reply.

- Under the above circumstances, there is no requirement under the $[18]$ law for a Plaintiff/Applicant whose suit has been dismissed for want of prosecution under the inherent powers of Court, to demonstrate sufficient/good cause why he/she never attended Court when the case was called for hearing. $0.9 r$ 22 CPR is in the circumstances not applicable to this case. - [19] For the above reasons, I find the trial Magistrate's observation while dismissing the suit; justified in the circumstances;

$\ldots$ no steps were taken ever since the filing of the suit to have it set down for hearing since *summons were taken up and no justification .......* has been shown to exist why no steps were taken taken out since by the summons were Applicant/Plaintiff on the 22nd day of August, 2019".

The trial Magistrate acted within his inherent powers under $S.17(2)(a)$ of the Judicature Act to dismiss the suit for want of prosecution and thus curb the abuse of Court process.

- Besides the claims by the Appellant that the reasons why he failed $[18]$ to prosecute his suit include **sickness**, **COVID19** and the advice he got from a **Court clerk** are all not supported by any evidence. These are lies on the part of the Appellant. No Medical Forms or any other proof of the Applicant's alleged hospitalization in the month of December, 2019 were provided for proof of his claims. The alluded to Court clerk who he claims advised him not to appear in Court and prosecute his case on the grounds of **COVID19**, is not named at all and in my view, the fact that the Court clerk and the trial Magistrate were in Court working as evidenced by the Court's action of dismissing this suit during that time, is evidence that Courts were in operation and the alleged **COVID19** restrictions could not have been in place at the time. - [19] As a result the totality of the above, I do find that the Appellant's 2 grounds of appeal lack merit. The Appeal is therefore accordingly dismissed, the decision and order of the trial Magistrate dismissing M. A. No. 05 of 2021 are upheld. The Respondents as successful parties are granted costs of this appeal.

Dated at Hoima this 29th day of February, 2024.

Byaruhanga Jesse Rugyema Judge

$\mathbf{Q}$