Byaruhanga and 27 Others V Uganda Land Commission and Others (Miscellaneous Application 1595 of 2022) [2023] UGHCLD 161 (30 June 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGAI{DA AT KAMPALA (LAND DMSTON) MISCELLANEOUS APPLICATION No. 1595 of 2022 ARISING FROM CIVIL SUIT NO. 449 OF 2OOA

#### SILVER BYARUHANGA & 27 OTHERS VERSUS APPLICANTS

### 1. UGANDA LAND COMMISSION

- 2. KAMPALA DISTRICT LAND BOARD - 3. ATTORNEY GENERAL RESPONDENTS

## BEFORE: HON. JUSTICE FLAVIA NASSUNA MATOVU RULING

### Introduction:

- 1. This application was brought under the provisions of, S. 98 of the Civil Procedure Act, O.9 r 18 , and O. 52 rr 1,2 & 3 of the Civil Procedure Rules. It was seeking for orders that; - a. The order dismissing Civil suit No.449 of 2008 be set aside, - b. Civil Suit No. 449 of 2008 be reinstated - c. Costs of this application be provided for.

It was brought by Notice of motion which was supported by an affidavit sworn by Silver Byaruhanga the 1"t Applicant' Grounds of the application were laid in the Notice of motion and affidavit in support. Briefly the grounds were that;

a) The Applicants had diligently prosecuted Civil Suit No. 449 of 2OO8 and had at all times adhered to the court's directives.

- b) The matter was adjourned to 27th Jlune 2022 at 9.00 am for mention, for parties to inform court about the progress of mediation. - c) That the applicants'lawyers were in court at exacfly 9. O0 am on that day and they waited for the matter to be called in vain. - d) That at about 9.15 am, the lawyers approached tfr. .l#\*to inquire if the matter would proceed on that day but to their shock and surprise, they were informed that the matter had been dismissed for non appearance of the parties earlier that day. - e) The applicants are still interested in pursuing their matter. - 2. The 3'd respondent filed an affidavit in reply which was sworn by one Oburu Odoi Jimmy, a principal state attorney working with Attorney General's Chambers, by which he called upon court to dismiss the application with costs. He maintained inter alia that; - a) The application was an abuse of court process since the applicants had on several occasions failed to prosecute their case which had been repeatedly dismissed and this was the fourth time they had filed an application to reinstate the case. - b) The applicants had repeatedly demonstrated lack of commitment and failed to prosecute the case which was filed in 2OO8. - c) There was no evidence indicating which lawyer was in court on the day the case was dismissed. - d) The 1"t arrd 2"d Respondent did not file any affidavit in reply.

- 3. In rejoinder the applicants called upon this court to strike ofl the affidavit in reply for having been filed out of time and without leave of court. - 4. Both parties filed written submissions which this court has carefully studied together with all the pleadings and record of proceedings.

# 5. The issue to be decided by court is whether HCCS. NO. 449 of 2OO8 should be reinstated.

Counsel for the applicants submitted interalia that the applicants had shown that there was sufficient reason for reinstatement of the said suit. That l"t the Applicant was sick and unable to attend court their counsel for was in court at exactly 9.0O am but the matter was ca-lled before 9.0oam and dismissed. He cited several authorities in support of his case that explain what amounts to sufficient cause which I have carefully studied.

Counsel for the Respondent on the other hand submitted inter a-lia that the applicants had repeatedly failed to prosecute the case, application was an abuse of court process and the case was rightfully dismissed for want of prosecution. He also cited several authorities in support of these submissions which I have carefully studied.

After carefully studying the record of proceedings and submissions of both parties I established as follows:

- a) Civil Suit No. 449 of 20O8 was filed at court on 26th November 2008. - b) The case was ca-lled on twelve occasions i.e. 161612015, 5I rL I 2Or5, 29 / 4 I 2016, 6I 2 I 2Ot7, 29 I 6 I 2Ot7, 2t I 9 I 2Or7, 5l3l2or8, 8l5l2Ot8, 2/7 l2or8, 17 I tl2or9, 3rl5l2Ot9, 26l8/2ol9,and on all these occasions the applicants did not prosecute their case. It was then dismissed for want of prosecution on 5l9l2Ol9. By consent of a-11 parties the case was reinstated on 4/6/202l. Itwas then ca,lled onTllOl2l, 27l4 /2022 and finally on 29 l6l2O22 wL,en it was dismissed for want of prosecution - c) The 1"t applicant clearly informed court that on the day the case was dismissed he was unable to attend court due to sickness. He therefore relied on information from his lawyer who told him that he/she arrived at court at 9.00 am but the matter was called before 9.00 am and dismissed. Unfortunately he did not disclose the particulars of this lawyer and this lawyer did not equally swear any affidavit to verify this fact. In the absence of any affidavit from the lawyer who a-llegedly attended court that day, the evidence of the l"t applicant remains hearsay and cannot be relied on by court. Besides, perusal of the court record shows that the matter was called at 9.00 am. It is therefore not true that the matter was ca-lled before 9.0O am as alleged. - dl On29 1612022, when the case was called both parties were not in court and the matter was dismissed for want of prosecution.

Dismissa-l for want of prosecution presupposes that the judge has carefully and critically studied and analysed the casefile

and come to the conclusion that the plaintiff has failed to prosecute his case and therefore dismisses the same.

Perusal of the record shows that the case was filed on 26lll/2OO8 and was dismissed on29l6l2022. For a period of close to 14 years the plaintiffs/applicants failed to prosecute their case. The l"t Applicant stated in his affidavit in support of the application that the purpose for coming to court on 291612022, was not to prosecute but merely to inform court about progress of mediation, and ask for, more time to mediate. This further confirms that the plaintiffs were not ready to prosecute their case.

In the case of Gold Beverages (U) ltd. Vs. Muhangura Kenneth,segonga Godwin TIA Platinum Associates Land Division M/A No. 674 of 2019 it was held that the dismissal for want of prosecution seals the matter for the plaintiff in the same court which issued the dismissal order, and recourse can only be had by the plaintiff to an appeal or commencement of a fresh action subject to the law of limitation.

Counsel for the applicants called upon this court to invoke its inherent powers under S. 98 of the Civil Procedure Act and reinstate the case.

I have however not found any special circumstances that would warrant this court to invoke its inherent powers. As a matter of fact, the plaintiffs had failed to prosecute their case for close to 14 years and the matter was rightly dismissed. The plaintiffs/applicants are at liberty either to appeal or file a fresh suit as and when they are ready to prosecute the same.

I have equally not found any reason to deviate from the decision of court in Gold Beverages (Supra)

This application therefore hereby fails and the same is accordingly hereby dismissed with costs to the 3rd Respondent.

DATED at Kampala this ....................................

HON. LADY JUSTICE FLAVIA NASSUNA MATOVU JUDGE.