Hajji Bukenya v Lutwama and Another (Miscellaneous Application No. 1531 of 2022) [2023] UGHCLD 14 (25 January 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

#### **MISCELLANEOUS APPLICATION NO.1531 OF 2022**

#### (Arising from Civil Suit No.566 of 2021)

#### HAJJI BUKENYA

SULAIT::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. LUTWAMA GYAGENDA DAVID

#### 2. WALUGEMBE EMMANUEL 10

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#### Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

This is an application seeking orders to set aside the order dismissing **Civil Suit No.566 of 2021;** and reinstatement of the suit so that it can be heard and determined on its merits.

It is brought under the provisions of **Article 126 (2) (e) of the Constitution of the Republic** of Uganda, Section 98 of the Civil Procedure Act cap.98 and Order 52 rules 1 & 3 of **the Civil Procedure Rules SI 71-1.** It also seeks that the costs of the application be provided for.

#### 20 Grounds of the application:

The grounds in support of the application are contained in the affidavit in support of the application deponed by Counsel Nakyeyune Berna, an advocate practicing with *M/s Magna* **Advocates,** and counsel in personal conduct of the matter.

She states that the land which is the subject of litigation in *Civil Suit No.566 of 2021* is 25 part of the land comprised in Kibuga Block 21 plot 1339 at Busega Kampala District measuring approximately 20 by 10 feet, and that when the matter last came up for hearing before **His Worship Kintu Zirintusa**, he informed the parties that he would forward the matter to the trial judge for further management.

That although counsel diligently followed up on the matter so as to have the same fixed for 30 hearing, she registered no success as she was always told that the file was missing, and that when the file was found, it was discovered that the matter had been called on 8th July 2022 in the presence of counsel for the defendants and their counsel, in the absence of both the plaintiff and his counsel and the same was dismissed for non-appearance of the plaintiff.

and and

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That upon further pcrusal of thc filc, counsel discovered that while this court had fxed 8s July, 2022 as the hearing datc and hearing notices in respcct of the same had been served at counsel's chambers to the rcccptionist, upon inquiry with all the advocates of the firm, counsel found that nonc of the advocatcs had either receivcd thc said hearing notices, or entercd the dates in their diarics.

Additionally, that when counscl inquired from the reccptionist, she found that upon receiving thc hearing notices, shc had kept them to hcrsclfwithout notifying either counsel in personal conduct of thc matter or any other advocatc in the firm thus thcrc was a miscommunication betwcen the staff and thc lawycrs in that rcgard, to which thc applicant was a victim, and

that the applicant was shockcd to find that thc matter had bccn dismisscd yet he was waiting for the mattcr to bc fixcd. 10

That not only docs the applicant have a meritorious suit, but he has at all times done everything in his ability to ensure that the matter is fixed for hcaring and that both the applicant and his counsel were gcnuinely unaware of the fact that the matter had been fixed for hearing on 8th July, 2022 when the matter was dismissed.

[.'urther, that the applicant was prcventcd by sufficient cause from attcnding court when the matter was called for hearing, as the grounds advanccd in this application constitute such sufficient cause to warrant setting asidc of the dismissal order, and reinstatement of the same. According to hcr thercforc, this is a fit and propcr casc where this court can exercise

its inherent power, in thc intcrest of justicc to sct asidc thc order dismissing, Clull Sult No.566 of 2O27. 20

Thc application is unopposcd by the respondent dcspitc the fact that thc application had been duly scrvcd, as pcr the affidavit of scrvice of Mr. Kamukama Alex.

The applicant through his lawyers M/s Magna Adaocates filed writtcn submissions in support of thc application as dircctcd by this court. 25

### Considerdtion of the application.

I have carcfully read the pleadings, cvidcncc and submissions of both counscl, thc dctails of which arc on the court rccord, and which I havc takcn into account in considcring whether or not this application discloses sufllcicnt cause warranting thc grant of the praycrs sought.

- In her submissions. Counscl for thc applicant argucd that the fact that therc was miscommunication bctwccn thc applicant's lawycr's staff to wit; thc rcccptionist who received thc hearing noticcs in Ciull Sult No.566 of 2O2I and failcd to notify counsel in personal conduct of the samc amounts to sufficicnt cause for thc non-attcndance of court, and that thc applicant is an innocent victim of thc circumstanccs as hc was not notified of thc hearing 30 - datc, thus the omission of his counsel should not bc visited on him. 35

## ln Hikirna Kgannqnyws as Sajic,bi Chris C. A. C. A No. I of 2006 it was hcld that

## "Sufficient re(rson or cause depends the circumstatces of each case and must reldte to inabilitg or lailure to take a particular step in tirne"

In considcring whcther or not thcrc was sufficicnt causc why either the applicant, or his counsel did not appcar in court on thc date that a matter was dismisscd, this court is guided by the rcasoning and judgcment of court in thc casc of Notlonol Insl;.ronce Corporation as Mugengi & Co, Advocates [19871 HCB 28 whcrcin court obscrvcd that;

# 10

"...the test to be applled in ccses of that nature utas uthether under the circunrstq.nces the pa.rtg applging honestlg intended to be presett at the bearing and did his best to qttend. It tDo.s also importdnt Ior the litigant to shotu due dillgence in the matter."

Counscl for the applicant in hcr affidavit in support statcs that upon pcrusal of thc file, counsel discovcrcd that whilc this court had hxcd 8rh July, 2022 as thc hearing date and hearing noticcs in rcspcct of thc samc had bccn served at counscl's chambcrs to the receptionist, upon inquiry with all thc advocates of thc firm, counsel found that none of the advocatcs had either received the said hearing notices, or entcred the dates in their diaries.

She further states that when shc inquircd from thc reccptionist, she found that upon recciving thc hearing notices, she had kept thcm to herself without notifying cither counsel in pcrsonal conduct of the matter or any othcr advocate in thc firm thus there was a miscommunication betwcen the staff and the lawyers in that regard, to which the applicant

was a victim, and that the applicant was shocked to find that the matter had been dismissed yet hc was waiting for the mattcr to bc irxcd. 20

It is the finding of this court that the applicant was cffcctivcly scrved through her advocates, a fact that is not disputcd by cithcr counsel or thc applicant himself. The claim that counsel

for thc applicant was prcvcntcd from attcnding court bccausc the hearing notices were not brought to her attention is insufficient in vicw of the fact that no proof has been led to convincc this court that the applicant followed up on the mattcr. 25

Ilc that as it may, I am pcrsuadcd by thc dccision of court in thc case of Nicholas Roussos Vs Gzlamhussein Habib Vlrann and. Anor SCCA IVo,9 of [993(unreported, wherein court notcd that mistakc by an advocatc though ncgligcnt, may bc acccptcd as a sufficicnt causc.

It is evident from the cvidence adduccd that thcrc was a clcar miscommunication in counsel for the applicant's chambers which caused the applicant not to appear before this court whcn the matter camc up for hcaring.

Section 98 gives court power to make a decision to meet the ends of justice for all parties involved. Accordingly, the order of dismissal is set aside, so as to enable the applicant prosecute his case. Consequently this application is granted and orders made as follows:

#### 1. The dismissal order in Civil Suit No. 0566 of 2021 is hereby set aside.

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- 2. Civil Suit No. 0566 of 2021 is re-instated and shall be heard and determined on its merits. - 3. No order is made as to costs.

Alexandra Nkonge Rugadya Judge 25th January 2023.

Delvad by mail Only Jos 11/2023