Chiman v Abid & Another (Miscellaneous Application 1595 of 2022) [2023] UGCommC 235 (14 March 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [COMMERCIAL DIVISIONI

# MISCELLENEOUS APPLICATION NO. 1595 OF 2022 CHIMAN BHAI R. PATEL::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS

## I. ABIDALAM

# 2. SUGAR & ALLIED INDUSTRIES LTD:::::::::::::::: RESPONDENTS BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI RULING

The Applicant filed this application under Section 98 of the Civil procedure Act Cap 7l and Order9 Rule 22, Order l7 Rule 5 as amended by SI No. 33 of 2019, and Order 52 Rules 1 and 2 of the Civil Procedure Rules seeking that the Order dismissing High Court Civil Suit No. 0848 of 2021 be set aside; the said suit be reinstated, taxation of HCT-00-CC-TA-0351-2022 be stayed, taxation of HCT-00- CC-TA-O352-2022be stayed, and that costs of the application be provided for.

The Application was supported by the affidavit of Chiman Bhai R. patel, the Applicant stating out the grounds of the Application. The Respondent filed their affidavit in reply opposing the application.

### REPRESENTATION

During the hearing, the Applicant was represented by lws ssekaana Associated Advocates & consultants and the Respondents were represented by M/s Betunda Yusuf Advocate.

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#### SUBMISSIONS

counsel for the Applicant submitted that the Applicant has sufficient cause why he and his lawyers did not appear in court on 6th September 2022 as they had gone for mediation that had been fixed at 9.30 am on the same day when the suit was dismissed. counsel submitted that sufficient cause must relate to the inability of the appellant or his lawyers to appear for the hearing and he cited the case patrick okwir v charles olwa CA 191 of 2013 in support. He prayed that the order for dismissal be set aside.

In reply, counsel for the Respondents raised an objection to the effect that counsel for the Applicant only cited the law under which the suit was dismissed but did not cite the one under which his application is made, therefore it is sufficient cause that the law is silent on reinstatement. That where a matter is dismissed for want of prosecution, the recourse is in filing a fresh suit. He cited the case of Gold Beverage (U) Limited V Muhangura Kenneth & Another in support.

counsel added that there was no mediation on that day as counsel has not availed any record showing that his client appeared for mediation nor did they serve the Respondent with any mediation notice for that day. He then prayed that the application be dismissed with costs.

In rejoinder, counsel for the Applicant submitted that the authority counsel cited is distinguishable as the matter was dismissed for non-appearance of the plaintiff as opposed to want of prosecution, and that the law that provides for each is different. He said that counsel's submissions are not applicable in the circumstances and he reiterated his earlier prayers that the dismissal order be set aside and the matter be reinstated.

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### RULING

Before I delve into the merits of the Application, I wilt first handle the objection raised by Counsel for the Respondent that the Applicant has not mentioned the law under which the application was brought and instead only cited the one for dismissal therefore the presumption would be that the law on reinstatement is silent. The issue of not citing or citing a wrong law was handled in the case of Gold Beverages (U) Limited v Muhangura & Anor Miscellaneous Application 674 of 2019 where it was held:

"It is a long established principle that citing of a wrong law or even the failure to cite any law under which a case is brought, is not fatal, for as long as the substance of the case is clear on the pleadings and the opposite party is not prejudiced thereby. "

In light of the above, the objection raised by Counsel is hereby ovemrled. I will now proceed to handle the application on its merits.

Having listened to the submissions of both Counsel and had the opportunity of looking at the file for the main suit, I am satisfied that the suit was dismissed pursuant to Order 9 Rule 22 of the Civil Procedure Rules as prayed for by Counsel for the Defendant/Respondent, although the final order by Court mentions 'dismissal for want of prosecution'. I am also alive to the fact that we have a duty to ensure that court orders should not be issued in vain (See Mitanda Bokale Masso David v Uganda Revenue Authority MA No. 1424 of 2017).

To put the above in perspective, the law on dismissal for want of prosecution as amended (Amendment of Order XVII S. I No. 33 of 2019) applies to suits where no step is taken for a period of six months after the mandatory scheduling conference. In this case, scheduling had not yet taken place but from the

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Mediator's report dated 6th September 2022,it is apparent that mediation had been ongoing and mediation had previously been fixed for 29106/2022, lglog/2022 and finally 06/0912022 when mediation was closed for non-attendance of the Defendant. That is the same day that only the plaintiff attended mediation as the Defendant attended hearing before this court and prayed that the suit be dismissed, hence the dismissal.

From the above circumstances, it is clear that the intent of the court was <sup>a</sup> dismissal under order 9 Rule 22 of the civil procedure Rules for non-appearance of the Plaintiff. Unlike dismissals for want of prosecution under SI No. 33 of 2019, suits dismissed under order 9 Rule 22 can be reinstated for sufficient cause. Order 9 Rule 23 of the Civil Procedure Rules provides:

" ll'here a suit is wholly or partly dismissed under Rule 22 of this order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was suficient cause for nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a dayfor proceeding with the suit"

From the above rule, the Applicant/plaintiff can apply for an order to set aside the dismissal, and that the Court shall make an order setting aside the dismissal if the Plaintiff satisfies the court that there was sufficient cause for nonappearance when the matter was called for hearing. Therefore, the issue is whether or not the Applicant had sufficient cause for nonappearance.

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The phrase 'sufficient cause'was explained in the case of Bishop Jacinto Kibuuka v rhe uganda catholic Lawyers society & 2 others Miscellaneous Applicarion No. 696 of 2018 where it was held that:

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".... sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently,, or "remaining inactive." However, the facts and circumstances of each case must aford sfficient ground to enable the court concerned to exercise discretion for the reason thot whenever the court exercises discretion, it has to be exercised judiciously. "

In this case, from paragraphs 9 and l0 ofthe deponent's affidavit in support ofthe Application, the Applicant/Plaintiff and his lawyer were appearing before the learned Registrar for mediation on the 6th day of September 2022 at 9.00 am when the matter was also dismissed before the trial Judge. Annexure J to the affidavit in support of the application is sufficient proof of the same as it shows that the matter was fixed for mediation and that it was dismissed for nonappearance of the Defendant, on that day. I find that there was therefore no negligent act on the part of the Applicant/Plaintiff, because as it has been the practice, when a matter is referred for mediation, it is not until mediation is concluded and the file referred back for hearing that the parties stop attending mediation.

In addition, section 98 of the civil procedure Act (cap 7l) gives this court inherent powers to make such orders as may be necessary for the ends ofjustice or to prevent abuse of the process of the court. In this case, the ends ofjustice are to be met when the case is heard and determined on its merits because the administration of justice requires that the substance of all disputes should be

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investigated and the cases be decided on their merits; and that errors and lapses should not necessarily debar a litigant from pursuing his rights (see Re-christine Namatovu Tebajjukira (1992-93) HCB 85 and, Essaji and Ors V, Solanki (196g) E. A 2r8).

In conclusion, I find that the Applicant/Plaintiff had sufficient cause for nonappearance in court on the day the matter was dismissed. Therefore, I find that the Application has merit and is therefore allowed in the following terms:

- a. The Order dismissing High Court Civil Suit No. 0848 of 2021 is hereby set aside. - b. Taxation of HCT-00-CC-TA-0351-2022 is staved. - <sup>c</sup> High Court Civil Suit No. 0848 of 2021 is reinstated. - d, Costs to be in the cause.

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HON. LADY JUSTICE ANNA B. MUGENYI DATED tg..b.!.p-tg