Kalubenge and 18 Others v Banyina and Another (Civil Appeal No. 23 of 2012) [2021] UGCA 61 (25 August 2021)
Full Case Text
### THE REPUBLIC OF UGANDA
### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
### **CIVIL APPEAL NO. 0023 OF 2012**
(Arising from HCT-MA 131 of 2011 also Arising from HCT-02-CV-32 Of 2011)
1. KALUBENGE PATRICK $\mathsf{S}$ 2. KULE WILLIAM 3. RWAMBALE SALVERI 4. KALIZOKA VENESIO 5. KAMBALE IOHN 6. MUKAMBA TADEO $10$ 7. KASEREKA DOUGLAS $\mathbf{L} = \begin{bmatrix} \mathbf{R} & \mathbf{R} & \mathbf{R} \\ \mathbf{R} & \mathbf{R} & \mathbf{R} \end{bmatrix}$ 8. BIYIRWA PASIKALI 9. MRS. KAMUNDU $$ NTAMBIRE MC'ISIAH $11.$ **MUKENDO RAULIANO** $15$ $12.$ **MATSONGA NASON** $$ **MWAKA IVAN** $$ **MADAWA** $$ **WILLIAM KIRUNDU** $$ $\overline{20}$ $17.$ **KALEMEKO ALFRED** $$ **KABIONA** 19. ZABULONI BAITABABU $\equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \$
**VS**
- 1. BANYINA ALEXANDER $\overline{25}$ - 2. SIDORA NYAKAISIKI======================RESPONDENTS
# CORAM HON. MR. JUSTICE GEOFREY KIRYABWIRE, J. A. HON. LADY JUSTICE MONICA K. MUGENYI, I. A. HON. MR. JUSTICE REMMY KASULE, Ag. J. A. JUDGEMENT OF THE COURT
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### **INTRODUCTION**
This is a first Appeal from the Ruling of the High of Uganda at Fort Portal delivered by the Hon. Mr. Justice Mike Chibita (as he then was) on 3<sup>rd</sup> February, 2012.
### **BACKGROUND** $10$
The Appellants applied by way of Chamber Summons in the High Court for a temporary injunction to restrain the Respondents from evicting the Appellants from possession, use and enjoyment of the suit land under Civil suit No. HCT CV CS 032 of 2011. The trial Judge found that the Appellants did not have a lawful claim against the Respondents because of the following reasons; First, that the Suit was Res judicata because it was the same suit land that was litigated upon in the Rwehingo LC1 Court in 1994 and 1997 and had the same subject matter as in High Court CV CA 0019 of 2009in the Fort Portal High Court.
Secondly, that the claim of the second to the eighteenth Appellants was barred $20$ by limitation because the second Respondent had been on the land since 1949 and the Appellants had never attempted to evict or challenge her occupancy.
Thirdly, that the Appellants had come to court with unclean hands because there was an undisputed allegation that they had been brought on the land by
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extra judicial means. This was because the Appellants had entered the suit property on the orders of the Deputy Resident Commissioner and dispossessed the second Respondent of the Suit land.
The trial Judge ordered that that the main suit to be struck off because it was res judicata with costs to the Respondents. The court also ordered that the $\mathsf{S}$ Judgment and Orders of the High Court in Civil Appeal No. 0019 of 2005 be reinstated and with necessary modifications to apply to the Application for temporary injunction and to civil suit No. 032 of 2011.
### DUTY OF THE COURT
This being the first Appellate court, it is our duty to give the evidence on the $10$ record as a whole that fresh and exhaustive scrutiny which the Appellants are entitled to expect, and then draw our own conclusions of fact. However as we never saw or heard the witnesses who gave evidence, we must make due allowance in that respect. See Rule 30(1) (a) of the Rules of this court, Pandya v R (1957) EA 336. $15$
### **REPRESENTATION**
The Appellants were represented by Mr. Baluku Geoffrey who was holding brief for Mr. Geoffrey Sibendire while counsel for the Respondent was absent.
### **Grounds of Appeal**
1. That the learned trial Judge erred in law and fact when he held that $20$ the suit was time barred.
- 2. That the learned trial Judge erred in law and fact when he held that the matter on which the Application was based was res judicata. - 3. That the learned trial Judge erred in law when he introduced extraneous factors in determining the Application. - 4. That the learned trial Judge erred in law and fact when he held that the first Respondent had been in possession of the suit land since 1949. - 5. That the learned trial Judge erred in law and fact when he determined the Application basing on wrong principles of law. - 6. That the learned trial Judge erred in law and fact when he held that the first and nineteenth Applicants were witnesses and privies to the matter in L. C.1 court. - 7. That the learned trial Judge erred in law and fact when he held that the 2<sup>nd</sup> Respondent's evidence had not been rebutted. - 8. That the learned trial Judge erred in law and fact when he dismissed the suit through the Application and did not make Orders as to the counterclaim. - 9. That the learned trial Judge erred in law and fact when he generally failed to evaluate the evidence on record and therefore came to a wrong decision.
## Prayers by counsel for the Applicant
Counsel for the Appellant was not ready to proceed in the matter and prayed for our indulgence to grant a two-month adjournment. This was because the Appellants had not filed written submissions as the Registrar
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of this Court had previously directed to them by way of a hearing notice, and furthermore since the nineteenth Appellant had since passed on, he had to obtain letters of administration for his estate and make an application under Rule 85 of the Rules of this Court for the appointment of a legal representative to continue his claim on appeal.
There was no response from the Respondents as they together with their counsel, were absent in Court though they had been served.
### **Court's Findings**
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When this matter came up for hearing in this court on 22<sup>nd</sup> February 2021 we decided to strike out this Appeal under Rule 2(2) of the Rules of this court. We now give our reasons for striking it.
Rule 2(2) of the court of Appeal Rules gives this court unfettered discretion to make any Orders to avoid the abuse of court process and to meet the ends of justice it provides that,
"nothing in these Rules shall be taken to limit or otherwise affect the inherent 15 powers of the court or the High Court, to make such orders as may be necessary for attaining the ends of Justice or to prevent abuse of the process of any such court and that power shall extend to setting aside Judgments which have been proved null and void after they have been passed and shall be exercised to prevent abuse of the process of any court by delay......." $20$
It is to be recalled that it is settled law and practice that the grant of an adjournment is not automatic even when the said application has not been opposed by the opposing party. The grant of an adjournment or its rejection is a matter of judicial discretion [ see **Uganda Development**
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Bank V National Insurance Corporation and G M Combined (U) Ltd CA No 28 of 1995 (SCU). An adjournment should be granted where the applicant has shown sufficient cause or reason for its grant.
When a matter has been cause listed for hearing and the parties do nothing to prepare for such a hearing, valuable time of court is lost and avoidable delays result from such actions. Parties on receiving a hearing notice, must therefore prepare for trial complying with what is required of them under the law, court rules and case management directions of court. It should be recalled that this Appeal was scheduled to be heard during these unprecedented times during the Covid 19 pandemic when there are serious restrictions (Standard operating procedure [SOPs]) on how persons may engage with each other. So some of the directions help allow for court hearings on the one hand and safety for all on the other.
In this matter we find that there is evidence that the parties are no longer interested in prosecuting this Appeal. This is because of the reasons that follow.
First, when both counsel were served with hearing notices which clearly indicated that the parties file written submissions, none of the parties complied with the direction to file written submissions before the hearing date. This was failure to comply with a case management direction in the hearing notice. Written Submissions help reduce the time required for oral submissions' in court which is in line with established SOPs at this time. However, this was ignored.
Secondly, the parties did not even attempt to prepare for pretrial conference for the main appeal. The appeal was filed about nine years ago; 6 | Page
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but apart from the filing of an interlocutory application no other step has been taken to prepare the main appeal. Since this Appeal was filed in this court on 1<sup>st</sup> March 2012, none of the counsel has bothered to write to court to request for the matter to be scheduled for conferencing or even request for a hearing date.
Thirdly, some of the parties who instituted the suit have since passed on, like the ninetieth Appellant and second Respondent. In this regard, counsel for the Respondent when acknowledging receipt of the Hearing Notice of this court (though he did not attend these proceedings) informed court by endorsing on the Hearing Notice that, "the Respondent passed on sometime back and we had no contact of the family members." The Appellant counsel submitted that he did not have information when his client died but needed about two months to look for his clients to initiate the succession process.
- Since none of the counsel bothered to file with this court an application to $15$ have legal representatives of the deceased added as parties in accordance with Rule 85 of the Rules of this court, we conclude that the parties are not interested in prosecuting this case. The Rule provides; - *An Appeal shall not be instituted in the name of a person who is dead but may* $20$ *be instituted in the name of his or her legal Representative."*
An appeal shall not be incompetent by reason only that the Respondent was dead at the time it was instituted, but the court shall on application of any
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interested person cause the legal representative of the deceased to be made a *party in place of the deceased."*
Finally, this appeal is primarily about the refusal to grant a temporary injunction at the trial court level, which is another area of judicial discretion that we again take caution of. It is intertwined with what appears to be a long standing dispute from about 1994 or before, with existing adjudications and decisions on the land dispute subject matter, from the Local Council Court level 1 (LC 1 Court) at Rwehingo and the High court at Fort Portal. This all points to multiplicity of litigation which courts should strive to bring to a close. The Appellants are keen on the grant of a temporary injunction, but needless to say that a temporary injunction when granted only serves to protect the status quo for trial but in this matter after nearly nine years and existing judicial decisions, the status quo must have changed years ago leading to a moot remedy.
It is therefore for the above detailed reasons that we on the 22<sup>nd</sup> February $15$ 2021 found that, it in the interests of Justice, that this Appeal be struck out.
### **Final Result**
This Appeal stands struck out. Given the reasons for the decision we have taken we make no Order as to costs.
We so Order. $20$
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Dated at Kampala this ....................................
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HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A.
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Mu regery
HON. LADY JUSTICE MONICA K. MUGENYI, J. A.
ween
HON. MR. JUSTICE REMMY KASULE, Ag. J. A.
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