Kanshabe v FINCA Uganda Limited & 2 Others (Miscellaneous Application 47 of 2022) [2024] UGHC 840 (5 September 2024)

#### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KABALE**

## **MISCELLANEOUS APPLICATION No. 0047 OF 2022** 10 **(Arising from Miscellaneous Application No. 0004 of 2021) (Arising from Civil Suit No. 0002 of 2021)**

#### **KANSHABE BARBARA**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANT**

#### **VERSUS**

- 15 **1. FINCA UGANDA LIMITED** - **2. WAATUNGA DISUS**

## **3. NIWAHABYONA TOMSON T/A DEDARO AUTIONEERS INTERNATIONAL**:::::::::::**RESPONDENTS**

#### 20 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Applicant brings the instant application by Notice of Motion under **Section 98** of the **Civil Procedure Act, Section 33 (**now **Section 37)** of the **Judicature Act, Order 53 Rules 1** and **3** of the **Civil Procedure Rules** seeking orders HCCS 25 No 0002 of 2021 be reinstated for hearing.

The grounds upon which this application is premised interalia are that:

- a) The Applicant is dissatisfied with the ruling and order of this Court dismissing HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 on 12/04/2022. - 30 b) That HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 were both dismissed without notice to the Applicant.

- 5 c) That HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 did not proceed with being fixed for hearing on account of the Applicant suffering from Covid 19. - d) That the Applicant went to check on the status of both HCCS No. 0002 and HCMA No. 0004 of 2021 where upon she discovered the same had been 10 dismissed on 12/04/2022 without being notified. - e) That the Applicant did not attend Court on 12/04/2022 because the files had lost position due to Covid 19 pandemic and she was not aware of a new date when HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 were dismissed by this honourable Court. - 15 f) That the Applicant is desirous of being heard in both HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 since they touch on her registered interest in land comprised in Block (Road) 160 Plot 18 at Nyakagyera, Burora, Nyarushanje Rukungiri District measuring 21 hectares where her matrimonial home is situated which is fraudulently being claimed by the 1st 20 Respondent as mortgage. - g) That the Applicant jointly owns the said land with 2nd Respondent which the latter mortgaged without her spousal consent. - h) That the Applicant instituted HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021 respectively before this honourable Court seeking for an order declaring that the said land is a matrimonial home of the Applicant and 2nd 25 Respondent, cancellation of the said mortgage on ground of fraud, general damages, costs of the suit and an order stopping the 3rd Respondent from selling the land.

5 i) That it is just and equitable that the Applicant be granted the orders sought herein.

The application is supported by the affidavit of the Applicant who expounds on the grounds of the application.

The 1st Respondents' senior legal officer Bwengye Alex filed an affidavit in reply 10 to the application and interalia avers that:

- a) That the application is bad in law and served out of time, intended to delay the 1st Respondents' efforts to recover its money, thus has no merit and should be dismissed. - b) That on the 12/04/2021 His Lordship Moses Kazibwe Kawumi dismissed - 15 HCCS No. 0002 of 2021 against the Applicant and the interlocutory application arising therefrom. - c) That if the Applicant is dissatisfied or aggrieved by the decision of His Lordship Moses Kazibwe Kawumi the correct procedure should have been to appeal the decision as of right and not originating this application. - 20 d) That the procedure adopted by the Applicant seeking to reinstate HCCS No. 0002 of 2021 is defective, erroneous and flaunts the Civil Procedure Rules. - e) That the Applicants' sickness can't stop the case from being fixed or followed up by her lawyers because she is ably represented. - f) That the Applicant has all along demonstrated dilatory conduct and lack of 25 the will to prosecute her own cause. - g) That there is no sufficient cause demonstrated warranting reinstatement of the dismissed suit.

- The 3rd 5 Respondent also filed an affidavit in reply to the application in which he avers interalia that: - a) That the main suit was filed on 11/01/2021 and the Applicant had never taken any step to prosecute the same until this honourable Court on its own motion decided to dismiss the said suit before the 12/04/2022 which is 10 almost one year and 3 months. - b) That the attachments to the Applicants' application are not corresponding and seem not to be genuine to wit, Annexure 'B' shows that on 02/01/2022 she tested positive for Covid 19, on 08/05/2021 also tested positive for Covid 19 and then on 12/06/2021 tested negative which seems practically 15 impossible. - c) That the Applicant states that she was diagnosed with Covid 19 in the year 2022 but the Judiciary notified in 2022 that Uganda had no cases of Covid 19 and the economy was in full operation. This shows that the Applicant is not being truthful to this Court. - The 2nd 20 Respondent who is a spouse to the Applicant did not oppose the application.

#### **Representation.**

The Applicant was represented by Messrs Onyango & Co. Advocates while the 1st Respondent was represented by Messrs Moriah Advocates and the 3rd 25 Respondent by Messrs Mujurizi, Alinaitwe & Byamukama Advocates.

Counsel proceeded by way of Written Submissions.

- 5 Counsel for the Applicant in their submissions raised and submitted on the following two issues: - **1) Whether or not this application is barred in law and served out of time.** - **2) Whether the Applicant has sufficient cause to justify the reinstatement of HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021.** - 10 3) **What remedies are available**.

#### **Issue 1**

It is the submission of Counsel that the instant application was filed and endorsed by the Assistant Registrar on 30/05/2022 and dully served upon the Respondents

on the 13/08/2022 for hearing on the 28/09/2022 meaning that the 1st 15 Respondent had 30 days within which to prepare his reply.

Furthermore, Counsel submits that this being a land matter the Applicant has a right to bring an action for recovery of land within 12 years, having learnt about the sale of her land from the monitor New Papers on 19/12/2020, lodged a caveat

20 and instituted the suit HCCS No. 0002 of 2021 on 11/01/2021 then it was dismissed on the 12/04/2022 therefore the issue of limitation does not arise and the suit was brought in good faith and in time.

Counsel for the 1st Respondent in his Written submissions contends that under **Order 5 Rule 1 (b)** of the **Civil Procedure Rules** service of summons is to be 25 effected within 21 days from the date of issue unless extended by Court and that the instant application having been endorsed on the 30/05/2022 and served upon the 1st Respondent on the 13/08/2022 the same was served 90 days late.

#### 5 **Resolution.**

### **Order 5 Rule 1 (b)** of the **Civil Procedure Rules** provides:

*"Service of summons issued under sub Rule (1) of the Rule shall be effected within twenty one days from the date of issue except that time may be extended in application to Court made within 15 days after the expiration of the twenty-one*

10 *days showing sufficient reasons for extension"*

While **Order 49 Rule 2** of the **Civil Procedure Rules** provides;

"*2. Orders and notices, how served.*

*All Orders, notices and documents required by the Act to be given or to be served on any person shall be served in the manner provided for the service of summons"*

15 In **stop and See(U) Ltd versus Tropical Africa Bank HCMA No. 0333 of 2010, Madrama J** (as he was) guided that applications, like plaints and defence are bound by the same timelines as provided for under **Civil Procedure Rules**.

**Order 5 Rules 2** and **3** of the **Civil Procedure Rules** is to the effect that once summons expire before service and there is no application for extension within

20 15 days or the application for extension is dismissed the suit stands dismissed without notice.

According to the Supreme Court in **Kanyabwera versus Tumwebaze [2005] 2 EA 86** all the provisions under **Order 5 Rule 1** of the **Civil Procedure Rules** are of strict application since penalty accrues upon their default.

25 I am alive to decisions in regard to service of Notice of Motions to the effect that service should be effected within a reasonable time.

In the present case however service of the instant application upon the 1st 5 Respondent 90 days after the issuance of the same cannot be considered to be reasonable. The argument of Counsel that the Applicant has 12 years within which to institute her suit is clearly misplaced.

The first issue is therefore answered in the affirmative.

10 On this issue alone I would dismiss the instant application.

However, for completeness, before I leave this matter I will examine the next issue.

# **Whether the Applicant has sufficient cause to justify the reinstatement of HCCS No. 0002 of 2021 and HCMA No. 0004 of 2021.**

15 Counsel for the Respondent on this issue submits that the Applicants' suit and the subsequent application was dismissed for lack of want of prosecution under **Order 17 Rule 4** of the **Civil Procedure Rules**. It is the contention of Counsel that the said law does not provide for reinstatement and that the position of the law is that a suit which has been dismissed for want of prosecution and the only 20 remedy available to the party is to file afresh suit subject to the law of limitation or to appeal against the dismissal. In this regard Counsel relies on the decision in **Golden Beverages Uganda Limited versus Muhangura Kenneth & 20 others HCMA No. 0674 of 2019.**

Counsel for the Applicant in rejoinder contends that the suit was not dismissed 25 for want of prosecution under **Order 17 Rule 6 (1)** of the **Civil Procedure Rules** and that HCCS No. 0002 of 2021 had not stayed in Court for two years.

#### 5 **Resolution.**

A perusal of HCCS No. 0002 of 2021 reveals that the Court disposed of the suit in the following manner:

*"The summons were issued on 11/01/2021. The suit has to date not progressed. It is dismissed for want of prosecution"*

10 I would agree with the Applicants' Counsel that the Court did not cite expressly the provision under which the order was derived but none the less the basis for dismissal is for want of prosecution.

The corresponding provision for such a dismissal would be **Order 17 Rule 5** of the **Civil Procedure Rules** that provides;

- 15 "*Dismissal of suit for want of prosecution.* - *(1) In any case not otherwise provided for, in which no application is made or step taken for a period of six months by either party with a view to proceeding with the suit after the mandatory scheduling conference, the suit shall automatically abate.* - 20 *(2) Where a suit abates under sub Rule (1) of this Rule, the Plaintiff may, subject to the law of limitation bring a fresh suit"*

the law applicable to the dismissal order is therefore **Order 17 Rule 5** of the **Civil Procedure Rules.**

Counsel for the Respondent in my view rightly submits that this provision does 25 not provide for reinstatement but rather filing of a fresh suit. The aggrieved party may also choose to file an appeal it would appear.

5 Justice Bashaija K Andrew in **Golden Beverages (U) Ltd versus Muhangura Kenneth & another HCMA No. 0674 of 2019** observed thus;

*"In the present case, however, it is the Applicant/Plaintiff which filed the suit against the Respondent/Defendants and failed to prosecute its case, and the defendants/Respondents applied for the dismissal of the suit for want of*

- 10 *prosecution. Therefore, the law applicable and the effect in both instances is quite different. There is no provision under the law which requires the Plaintiff/Applicant whose suit has been dismissed for want of prosecution, to demonstrate good cause why he/she never attended Court when his/her case was called for hearing. The dismissal for want of prosecution seals the matter for the* - 15 *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 limitation period imposed by law"*

The Court also cited the decision in **Sekguya Sebugulu versus Daniel Katunda**

**[1979] HCB 76** in which it was held that once an action has been dismissed for 20 want of prosecution, the Plaintiffs only remedy is either an appeal against the order of dismissal or commencement of a fresh action subject to the law of limitation.

5 Issue No. 2 is therefore answered in the negative.

Having found as above, the application is dismissed with costs to the Respondents.

Before me,

…………………………… 10 **Samuel Emokor Judge 05/09/2024**