Kanto v Okemoto & Another (Miscellaneous Application 23 of 2023) [2024] UGHC 1117 (27 December 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 023/2023**

**(Formerly HIGH COURT GULU MISC. APPLICATION No. 192/2023)**

**(Arising from HIGH COURT KITGUM - CIVIL APPEAL No. 217/2018)**

**(Formerly HIGH COURT GULU – CIVIL APPEAL No. 07/2018)**

# **(Arising from CHIEF MAGISTRATE, KITGUM-CIVIL SUIT No. 024/2010). KANTO JOSEPH APPLICANT**

#### **Versus**

# **1. OKEMOTO ROBERT LABOW**

**2. ONGEE MARINO LOL RESPONDENTS**

# **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **Introduction and Background.**

- [1]. The Applicant, seeks in his first prayer, an Order from this Court setting aside the Dismissal Order in Civil Appeal No. 07/2018 (High Court Gulu Circuit) of the 2nd November, 2023; secondly, an Order reinstating Civil Appeal No. 07/2018 to be heard on its merits; and, thirdly, an Order making provision for costs of the Application. - [2]. The Court observes that the file being formerly Civil Appeal No. 07/2018, upon transfer from the High Court Gulu Circuit to the High Court Kitgum Circuit was registered afresh and is presently Civil Appeal No. 217/2018. Similarly, the suit before the Lower (Trial) Court previously Civil Suit No. 072/2006 was later registered as Civil Suit No. 024/2010 upon re-designation of Magisterial areas.

- [3]. The Application is instituted by way of Notice of Motion filed on the 6th December, 2023 brought under **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 52 Rules 1, 2 & 3 and Order 43 Rule 16 of the Civil Procedure Rules, SI 71 - 1.** These citations have been revised under the **Law Revision Act, Cap. 3** and **Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws) Instrument, 2024**. - [4]. Supporting the Application is an Affidavit attached deponed by the Applicant.

# **The Applicant's Case and Submissions.**

- [5]. The Applicant's grounds are stipulated in the Motion and expounded upon in his own supporting Affidavit and are: - firstly, he could not attend Court on the 2 nd November, 2023 because his Advocate Mr. Komakech Stephen who was in personal conduct of the case and had the file did not inform him of the hearing date; secondly, the mistake, negligence or error of Counsel should not be visited on him; thirdly, the case should be heard on its merits; fourth and lastly, it is in the interests of justice that the Dismissal Order is set aside. - [6]. In his Affidavit, the Applicant concedes that the Appeal previously came up before the Court on the 28th September, 2023 and was adjourned to the 2nd November, 2023 to enable his Attorney obtain certified copies of the Judgment and Record of Proceedings of the Lower (Trial) Court and have them served on the Respondent. - [7]. The Court observes from its Record of the 28th September, 2023 that the Applicant was absent whilst his Attorney was in Court whilst on the 2nd November, 2023 neither the Applicant nor his Attorney were present at the Court when the matter was called for hearing and upon non-appearance it was subsequently dismissed.

- [8]. The Applicant places blame entirely on his Attorney for not informing him of the hearing date fixture thereby preventing him from attending his matter in the Court himself which resulted in its dismissal for default by the Appellant by way of non-appearance. - [9]. It is his case that he is interested in having the Appeal heard and determined *inter parties* on its merits and the mistakes, negligence and, or error of Counsel should not be visited on him as he is not conversant with matters of procedural Law – which is in effect the *"layman"* or *"Ignorantia Juris"* argument. - [10]. Further, the Application has been made without delay and it is in the interests of Justice that the Dismissal Order is set aside and the Civil Appeal is reinstated, heard and determined on its merits. - [11]. In his Submissions filed on the 9th April, 2024, the Applicant addressed the issue of - Whether there was sufficient cause for non-appearance of the Applicant on the date the matter came up before the Court and was dismissed and the available remedies. - [12]. The Applicant citing **Supreme Court Civil Appeal No. 8/1998: Banco Arabe Espanyol Vs. Bank of Uganda** submitted that the fault for non-attendance of the hearing fixed for the 2nd November, 2023 lay with his former Attorney Mr. Komakech Stephen who was in personal conduct of the matter and neither attended Court inspite of being on the Court premises and the matter being stood over to enable him appear nor informed him of the Court fixture. - [13]. This he submits constitutes sufficient cause for grant of the Application and reinstatement of the Appeal under **Order 43 Rule 16 of the Civil Procedure Rules**. - [14]. It is on this basis that the Applicant prays that the Court exercises its discretion and grants the Application and the Orders sought.

#### **The Respondents' Case and Submissions.**

- [15]. The Respondents opposed the Application and filed an Affidavit in Reply on the 5 th February, 2024 deponed by the 2nd Respondent, Ongee Marino Lol, stating that: - firstly, the Application is misconceived, frivolous, vexatious, bad in Law and an abuse of Court process and it should be struck out with costs; secondly, the Appeal was dismissed in the absence of both the Applicant and his Attorney at the hearing much as his Attorney was on the Court premises and the matter being stood over which indicated that the Applicant had no interest in pursuing the Appeal. Accordingly, the Dismissal Order should not be set aside and the Appeal should not be re-instated. Further, the Applicant will not suffer any injustice if the Application is not granted and it is in the interests of Justice that the Application is not granted. - [16]. In their Submissions filed on the 16th April, 2024, the Respondents addressing the same issue as raised by the Applicant and citing **Supreme Court Civil Application No. 6/1987: Florence Nabatanzi Vs. Naume Binsobedde** submitted that the Applicant must show sufficient cause relating to the inability or failure to take a particular step within the prescribed time with each case determined on its merits. A vigilant Party should not be penalized for the fault of his Counsel over whose actions he has no control. - [17]. It was the Respondents further contention that litigants are responsible for their cases and should be conscious and vigilant about their matters in Court. This includes pursuing their Counsel and their cases in Court. The placement of blame on Counsel has the effect of making litigants lazy thereby not being vigilant about their cases. - [18]. It is the Respondents Submission that the Applicant has not shown steps taken in following up his case with his Counsel proving that he was not vigilant.

- [19]. The Respondents highlighted that the Appeal was filed in February, 2018 and was not followed up for more than five (5) years indicating that the Applicant is not interested in the Appeal. - [20]. The Respondents prayed that the Application is dismissed for failure by the Applicant to show sufficient cause for grant of the Orders sought. - [21]. There are no Rejoinders filed.

# **Representation.**

- [22]. Counsel, Mr. David Kinyera, represented the Applicant. The Applicant was in attendance. - [23]. Counsel, Mr. Louis Odongo, represented the Respondents. The 2 nd Respondent was in attendance.

# **Proceedings of the Court.**

- [24]. The proceedings before the Court were on the 28th March, 2024 and the 6th June, 2024. - [25]. The Court observes that at the proceedings on the 6 th June, 2024 the parties indicated to the Court that the Respondent had no objection to grant of the Application. Nonetheless, directions were given for filings this being a matter subject to the discretion of the Court.

# **Issues for Consideration.**

[26]. The Issue for consideration to be addressed by the Court is – **Whether sufficient cause has been established for the Court to judiciously exercise its discretion to set aside its Order dismissing Civil Appeal No. 07/2018 (217/2018 – Kitgum) and thereby reinstating the Appeal.**

# **Considerations and Determination of the Court.**

- [27]. A review of the Record of the Court indicates that the Appeal was dismissed on the 2nd November, 2023 under **Order 43 Rule 14(1) of the Civil Procedure Rules SI 71 – 1** with costs awarded to the Respondent for default of the Appellant by way of non-appearance. - [28]. The instant Application is brought under **Order 43 Rule 16 of the Civil Procedure Rules** which provides –

**"Rule 16 – Readmission of Appeal for default.**

**Where an Appeal is dismissed under Rule 14 or 15 of this Order, the Appellant may apply to the High Court for readmission of the Appeal; and, where it is proved that he or she was prevented by any sufficient cause from appearing when the Appeal was called on for hearing … the Court shall readmit the Appeal on such terms as to costs or otherwise as it thinks fit."**

- [29]. The core grounds presented by the Applicant in establishing sufficient cause are the failure of his Counsel to attend Court when the matter came up on the 2nd November, 2023 or to inform him of the Court date to enable him to attend Court himself thus arguing that the negligence, mistake or error of Counsel should not be visited upon him. - [30]. It is correctly observed and corresponds with the Record of the Court that on that day the Court stood over the matter to enable attendance of the hearing of the Appeal by the Appellant or his Counsel which culminated in its dismissal under **Order 43 Rule 14(1) of the Civil Procedure Rules** when neither the Appellant nor Counsel appeared in Court. The Applicant's Counsel had attended the previous hearing fixture on the 28th September, 2023 and was well aware of the fixture for 2 nd November, 2023 given in his presence. The Applicant was absent at the proceedings of the 28 th September, 2023.

[31]. The Court has considered the authorities cited which constitute some of the leading authorities on sufficient cause - **Supreme Court Civil Appeal No. 8/1998: Banco Arabe Espanyol Vs. Bank of Uganda** and **Supreme Court Civil Application No. 6/1987: Florence Nabatanzi Vs. Naume Binsobedde** for the dual propositions that sufficient cause must relate to the inability to act

or take a step timely and that negligence, mistake and, or error of Counsel does indeed constitute sufficient cause and should not be visited on a litigant.

[32]. The Court must be satisfied as to the reasons or explanation provided by one seeking remedy and the sufficiency of the grounds should relate to an inadvertency, inability, failure or bonafides to take a proactive, necessary or mandatory measures or steps to further one's case timely which would exonerate the litigant from the presumption or assertion of dilatory conduct, indolence, negligence or inaction which in the first place led to the negative outcome which the litigant now seeks to have remedied.

**See: Supreme Court Civil Appeal No. 9/1993: Nicholas Roussos Vs. Ghulam Hussein Habib Virani** and **Supreme Court Constitutional Application No. 1/2006: John Sanyu Katuramu & Others Vs. The Attorney General.**

- [33]. This Court has previously determined the requirement for sufficient cause. **See this Court's Decision on Sufficient Cause in Misc. Application No. 044/2021 arising from High Court Civil Suit (Gulu) No. 05/2021: Atoo Grace Vs. Onen Anthony & Rubangakene Wilson.** - [34]. It is trite that the burden of proof under the **Evidence Act, Cap. 8** is placed on the Applicant who has the duty to demonstrate sufficient cause by providing a factual explanation for the delay or delinquency and it therefore cannot simply be left to the Court to impute sufficient cause for reinstatement of any matter without a factual or otherwise legal basis.

- [35]. In the circumstances of this case, it is inexplicable that Counsel would be in the Court premises knowing of a Court fixture previously made in his presence and with his participation and the matter stood over to enable attendance but still fail to appear before the Court. The Court therefore finds that negligence of Counsel is established thus constituting sufficient cause for grant of the Orders sought and reinstatement of the Appeal. - [36]. Moreover, the Court observes that the Applicant himself filed the Appeal timely by way of Memorandum of Appeal on the 6 th February, 2018 following the Judgment of the Lower (Trial) Court on the 30th January, 2018 and the Letter requesting certified Judgment and Proceedings is on Record dated 6 th February, 2018. This is indicative that the Applicant has shown some diligence in pursuing the Appeal. This was accomplished by the Applicant himself without the benefit of the Counsel and is exhibited by the Memorandum of Appeal prepared by himself. - [37]. Having carefully given due consideration to the Application, supporting Affidavit, responsive Affidavit and Annextures thereto as well as the submissions of the respective parties and to the circumstances of the case as well as the interests of Justice – the Application is granted with the Order dismissing **Civil Appeal No. 07/2018 – High Court Gulu (now Civil Appeal No. 217/2018 – High Court Kitgum)** hereby set aside and **Civil Appeal No. 217/2018** is hereby reinstated. - [38]. The Deputy Registrar, High Court Kitgum Circuit shall obtain the certified Judgment and Record of Proceedings of the Lower (Trial) Court constituting the Record of Appeal and avail it to the parties within Forty-Five (45) days hereof and forthwith fix it for hearing. - [39]. The parties shall each meet their own costs.

# **Orders of the Court.**

- [40]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 23/2023** is hereby granted. - 2. The Order dismissing **Civil Appeal No. 07/2018 (now Civil Appeal No. 217/2018)** is hereby set aside. - 3. **Civil Appeal No. 217/2018** is hereby reinstated. - 4. Each party shall meet their own costs.

It is so Ordered.

**Signed and Dated on the 27 th day of December, 2024 at High Court Kitgum Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

# **Delivery and Attendance.**

This signed and dated Ruling on the directions of the Presiding Judge shall be delivered to the Parties electronically on **Friday, 27 th day of December, 2024** by the Deputy Registrar, High Court Kitgum Circuit.

- 1. Deputy Registrar, High Court Kitgum Circuit - Her Worship Suzanne Aisia Musooli. 2. Counsel for the Applicant - Mr. Kinyera David. 3. Applicant - Mr. Kanto Joseph. 4. 1 st Respondent - Mr. Okemoto Robert Labow. 5. 2 nd Respondent - Mr. Ongee Marino Lol. 6. Court Clerk and Interpreter - Mr. Atube Michael. - 7. Interested and Affected Persons and Entities.


**Philip W. Mwaka**

**Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**27 th day of December, 2024.**