Byaruhanga v Kisembo and 2 Others (Miscellaneous Application 28 of 2024) [2024] UGHC 398 (31 May 2024)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

# 3 **MISC. APPLICATION NO. 028 OF 2024**

## **(ARISING FROM LAND CIVIL APPEAL NO. 030 OF 2022)**

**(ORIGINATING FROM FPT – 00 – CV – LD – 0049 OF 2013)**

# 6 **BYARUHANGA CHARLES :::::::::::::::::::::::::::::::::::::::::: APPLICANT (Suing as an administrator of the Estate of the late Imelda Kabakali)**

## 9 **VERSUS**

- **1. GRACE KISEMBO** - **2. STELLA KADIIDI** - 12 **3. REGINA NSUNGWA ::::::::::::::::::::::::::::::::::::::: RESPONDENTS BEFORE: HON. JUSTICE VINCENT WAGONA**

## **RULING**

#### 15 **Introduction:**

This application was commenced under Order 43 rule 4(1), 52 rules 1 & 2 of the

- 18 Civil Procedure Rules and Section 98 of the Civil Procedure Act for orders that: - **1. The order dismissing HCT – O1 – CV – CS – LD – NO. 030 of 2022 be set aside and the appeal is reinstated.** - 21 *2.* **That the costs of taking out the application be provided for.**

#### **Grounds of the application:**

The application is supported by the affidavit of the applicant who averred thus;


- (1)That having lost FPT 00 CV LD CS 0049 of 2013 before the Magistrate Grade One at Fort Portal, he was aggrieved and appealed against 3 the same in the High Court. - (2)That he later become sick and lost contact with his lawyers which later resulted in the appeal being dismissed on 10/11/2023. - 6 (3)That after recovering, he followed up his case only to find that it was causedlisted without his knowledge and dismissed. - (4)That if the application was not allowed, it would cause a miscarriage of justice - 9 which will result into financial loss to the applicant. - (5)That it is fair, just and equitable that the application is allowed and the dismissed matter is heard on merits. - 12

## **Reply by the respondent:**

- The application was opposed by the 3rd 15 Respondent who deposed as follows: - (1)That she was in court when the case was dismissed for want of prosecution. That the applicant was not vigilant in following up his appeal and have it fixed - 18 for hearing until it was dismissed on court's own motion. That the suit was dismissed for want of prosecution as such could not be re-instated. - (2)That the applicant cannot rely on the failure by his advocate to inform him of 21 the date yet it was his duty to follow up on the appeal. That the applicant has not demonstrated sufficient cause to account for the failure to prosecute his appeal. - 24 (3)That court should be pleased to dismiss the application with costs.

## **Rejoinder by the Applicant:**


In rejoinder, it was further deponed by the applicant as follows;

(1)That in the event of his sickness, his lawyer was meant to follow up the appeal

- 3 but unfortunately he had lost contact with him as such he could not follow up. - (2)That the dispute in issue being a land matter, it's in the interests of justice that the appeal is heard on merits. - 6

# **Legal Representation and hearing:**

9 *Mr. Businge A Victor* appeared for the applicant while *Mr. Mugisa Richard Rwakatoke* appeared for the 3 rd Respondent. Both counsel addressed me on the merits of the application by way of written submissions which I have duly 12 considered herein.

#### **Issues:**

Two issues are pertinent to the determination of this application thus:

- **(1)Whether there is sufficient cause warranting setting aside the order** 18 **dismissing civil appeal no. 030 of 2022?** - **(2)What remedies are available to the parties?**

# 21 **CONSIDERATION BY COURT:**

I have considered the submissions of both counsel, pleadings and the record of court 24 in Civil Appeal No. 030 of 2022. The dismissal order did not cite the relevant provision of the CPR but the spirit in the wording demonstrates that the court applied Order 43 rule 31 of the Civil Procedure Rules. Under the said order, when read


together with Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Article 126(2)(e) of the Constitution leads me to the conclusion that the court 3 may in its discretion reinstate such an appeal, upon the applicant demonstrating sufficient cause or special circumstances. (See: **Abel Balemesa V YesroMugenyi, HCMA No. 126 of 2019).**

What constitutes sufficient cause is a question of fact and law depending on the circumstances of each case. *Twinomujuni JA (RIP) in TiberioOkeny & Anor v The*

- 9 *Attorney General and 2 ors CA 51 of 2001* gave an elaborate narration on the basics to consider as to what constitutes sufficient cause thus: - *"(a) First and foremost, the application must show sufficient* 12 *reason related to the liability or failure to take some particular step within the prescribed time. The general requirement notwithstanding each case must be decided on facts.* - 15 *(b) The administration of justice normally requires that substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily debar a* 18 *litigant from pursuit of his rights.* - *(c) Whilst mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of* 21 *judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law.* - *(d) Unless the Appellant was guilty dilatory conduct in the* 24 *instructions of his lawyer, errors or omission on the part of counsel should not be visited on the litigant.*


- *(e) Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's* 3 *negligence or omission to comply with the requirements of the law …"* - 6 Further that:

*"it is only after "sufficient reason" has been advanced that a court considers, before exercising its discretion whether or not to grant extension,* 9 *the question of prejudice, or the possibility of success and such other factors …".*

- 12 In the present case, the applicant contended that he fell sick and later was unable to follow up on his appeal. That his lawyer did not also follow up on the same and as a consequence the same was dismissed for want of prosecution. That there is just cause - 15 for not following up on the matter. In reply, learned counsel for the Respondent contended that the applicant did not submit any special circumstances that warrant the re-admission of the appeal. That the application was presented to deny the - 18 Respondent from realizing the fruits of litigation specifically the costs granted against him. - 21 Sickness of a party in my view constitutes sufficient cause or special circumstances where court can re-admit an appeal dismissed under Order 43 rule 31 of the Civil Procedure Rules. This must however be proved by a party placing material evidence - 24 on record to support such claim. Court cannot merely rely on the oral testimony of a party as proof of sickness.


In the present case, the applicant's sickness is unsupported by medical evidence. I have additionally considered the principle of law that mistake of parties or their

- 3 advocates should not be used as a legal bar to the parties from pursing their claims which may be the case in the present case since the applicant's counsel had be instructed to prosecute the appeal, he ought to have followed up on the same. Further - 6 I have previously observed in *Kabarole District Local Government Vs. Gun Paper Industries Limited, Misc. Application No. 102 of 2022* thus;

*"It is my understanding that whether a particular cause is sufficient or not is a*

- 9 *matter for judicial determination taking into account the facts of the case. Each decision would depend entirely on the particular facts of the case. …………Where a party has not been grossly negligent or palpably indifferent in prosecuting the case,* - 12 *the delay may be excused to afford granting an extension. It appears to me that in circumstances where the denial to grant an extension would occasion an injustice or lead to multiplicity of suits, or where in the court's consideration justice can be* - 15 *better served after hearing from both side especially in land matters, an extension should be granted. This is intended to ensure that justice is done to all no matter the faults, mistakes, lapses and minor procedural irregularities that do not go to the* - 18 *roots of the administration of justice."*

In the present application, the main suit being an appeal, the applicant's lawyer ought to have followed up the same to have it heard. However his mistake and that of his

- 21 counsel not to follow up on the appeal should not be blantantly used to block him from accessing the channels of justice. Where such mistake can be remedied by an award of damages, court should be hesitant to order a dismissal especially where a - 24 party has showed interest to pursue his or her claim.


Furthermore, the dispute in the appeal is about land. I find it in the interest of justice not to punish the applicant by denying him an opportunity to have the appeal heard

3 especially where there is no gross injustice which shall be suffered by the Respondent. I also consider that this application was considering the circumstances of the case brought without inordinate delay and thus it is fair and just that the same 6 is allowed so that court can investigate the merits of the parties on merit.

In the result, I allow this application with the following orders:

- **1. The order dismissing HCT – O1 – CV – CS – LD – NO. 030 of 2022 dated 10** 9 **th November 2023 is hereby set aside and the appeal is accordingly reinstated.** - **2. The appeal shall be heard on merits interparty.** - 12 **3. The Respondent is awarded costs of this application in the cause.** - **4. The applicant shall ensure that everything is done to ensure that he has filed written submissions in the appeal and served the respondents** 15 **within 2 weeks from the date of delivery of this ruling.** - **5. The case will be mentioned in court on 1/7/2024.**

I so order.

Vincent Wagona

**High Court Judge**

21 **Fort-portal**

#### **DATE: 31/05/2024**