Keishara & 2 Others v Kirabo & 4 Others (Miscellaneous Application 216 of 2022) [2023] UGHC 320 (23 January 2023)

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

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

### **HELD AT MASAKA**

#### **MISCELLANEOUS APPLLICATION NO. 216 OF 2022**

### **(Arising from Civil Suit No. 44 of 2017)**

#### **BETWEEN**


### **RULING**

#### *Before the Hon. Lady Justice Victoria. N. N. Katamba*

#### **Background:**

The Applicants filed Civil Suit No. 44 of 2017 against the Respondents over the suit land comprised in Mawogola Block 45 plots 3 and 4, land at Bukasa, Lwemiyaga Sembabule District. It was stated in the plaint that the suit land belonged to their late father, Yosia Lucunda.

They filed the suit as beneficiaries of his estate and claimed that while the suit land was in their possession and use, around mid-2017, the Respondents brought surveyors on it who started to survey it, planting mark stones on it, fencing it and generally doing things on it that had the effect of interfering with the Applicants' quiet use and possession. It was against that background that Civil Suit No. 44 of 2017 (the main suit) was filed for a legal redress.


After filing the suit, the Applicant's also filed an application for a temporary injunction which was heard and decided in their favour.

The case 1st came up in Court on 11th December 2020 and counsel for the applicants was in Court and informed it that parties were engaged in mediation with a view to settle it and the same was adjourned to 8th June 2021 but due to Covid 19 pandemic that was prevalent at the time parties were unable to attend Court on that day. The suit was subsequently dismissed on 27th April,2022 for want of prosecution and the Applicants filed M. A No.133 of 2022 for reinstatement of the suit. as a result the case lost position.

When the applicants went to Court in May 2022 to follow it up after Covid 19 pandemic was put under control, they found that the same had been dismissed by the Court on 27th April 2022 under Order 17 rule 6 (1) of the Civil Procedure Rules. They thereafter on their own filed M. A No. 133 of 2022 to re-instate it. They then re engaged Counsel who advised them to withdraw it and file the present application.

When the application came up for hearing on 10th November,2022, the parties were given schedules to file written submissions which they did.

# **Applicants Submissions:**

Counsel for the Applicant submitted that the only issue for the determination of this court is whether the dismissal of C. S No.44 of 2017 can be set aside and the suit reinstated and heard and determined on merit.

He argued that the Court has inherent powers to re-instate a case dismissed under the equivalent of O17 r 6 (1) of the Civil Procedure Rules and cited several authorities to support his argument including *Rawal While Vs Mombasa Hradware Ltd (1968)EA 392* in which it was held by the *East African Court of Appeal* that *a Court has inherent powers to re-instate a case dismissed under the equivalent of O17 r 6 (1) of the Civil Procedure Rules.*

This decision, Counsel stated has been followed by this Court in a number of cases such as *Meera Investments LTD Vs Uganda Investment Authority M. A*

*No. 114 of 2015* where *Madrama J (as he then was)* while following the above decision exercised the Court's inherent powers and re-instated a case that had been dismissed under *Order 17 r 6 (1)* of the Civil Procedure Rules.

The question to determine, Counsel stated is, whether the applicants have disclosed sufficient cause to justify the Honourable Court's exercise of its inherent to powers re-instate the main suit and based on the applicants' affidavits in support of the application argued that they disclose sufficient cause to justify the Court's exercise of its inherent powers to re-instate the main suit for the reasons that the parties in the suit were involved in mediation after the Temporary Injunction was granted, they were prevented from following up the suit by the COVID 19 Pandemic Lockdowns, they acted promptly in filing an application for reinstatement as soon as they learnt that CS No44 of 2017 had been dismissed, reinstatement of the main suit will not cause any prejudice to the Respondents and that the suit land is where the applicants live and derive their sustenance. Lastly that the main suitdiscloses a prima facie case with probability of success.

Counsel submitted that the applicants demonstrated that they are children of the late Yosia Lucunda who was the owner of the suit land and when he died it remained theirs in their capacities as beneficiaries of his estate and that the Respondents are not and have no right to use it as if it is theirs.

He concluded his arguments by citing the case of *Bank Arabe Espanol Vs Bank of Uganda SCCA No. 8 of 1998* in which it was held by Oder JSC that:

**"As George C. J. said in Essaji Vs Solank 1968 EA 218 at 222. The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant in pursuit of his rights...... it would seem that the main purpose of litigation namely, the hearing and determination of disputes should be fostered rather than hindered."** And stated that the decision in Bank Arabe Espanol supra was followed by the *Hon. Justice Alfonse Chigamoy Owiny-Dollo J (as he then was) in Faridah Nantale Vs Attorney General and 5 others. Civil Suit No. 97 of 2011.***a**nd prayed that the

Honourable Court exercises its inherent powers under *S 98 of the Civil Procedure Act* to allow the application and grant orders prayed for in the notice of motion with costs being in the cause.

## **Respondents Submissions:**

In response, Respondents Counsel argued that the Applicants filed CS No44 of 2017 and immediately thereafter obtained an ex parte order for a Temporary Injunction and took no further effort to prosecute the parent suit. That Court on its own motion in order to stop the abuse of court process and in the interest of justice fixed the matter on a notice to show cause and the plaintiffs did not appear after which the suit was rightly dismissed.

Counsel raised objections that the instant application is technically barred in law because the suit was dismissed under Order 17 rule 6 and that it is now settled law that a party whose suit has been dismissed under this rule can only file a fresh suit. He cited ComTel Integrated Africa Limited vs National Social Security Fund MA No.772 of 2016 to support his position.

He argued that in the instant case, the applicants were served with hearing notices but did not attend court; they did not take any steps to prosecute the case; courts were open at the time the case was called for hearing and it is not true that the courts were closed when their case was dismissed.

Counsel then submitted on the withdrawn Miscellaneous Application No.133 of 2022 that court had no jurisdiction to withdraw it because its summons by motion had expired. The only remedy would have been a dismissal. He relied on the case of Sam Akantwatsa vs United Bank of Africa H. C. Misc Application NO.1233 of 2017 in which it was held inter alia where a procedure is provided for, the parties are obliged to follow it and issuance of fresh summons contravened the law and was done without jurisdiction. He concluded that the instant application is a nullity and should not be before the court.

In conclusion, Counsel stated the plaintiffs showed no justification to warrant a reinstatement and prayed the application be dismissed with costs.

Applicant's Counsel filed submissions in rejoinder on 20th January,2023 and stated that he was served on 17th January,2023 instaed of 9th December,2022 as had been directed by the court. Counsel submitted in rejoinder that the court has discretionary powers to reinstate a suit dismissed under Order 17 ruke 6(1) of the Civil Procedure Rules and that this position was settled by the East African Court of Appeal in Rawal While vs Mombasa Hardware Ltd( 1968)EA 392.

That contrary to Respondent's Counsel's submission, the Hon Justice Christopher Madrama in Comtel Integrators Africa Limited vs NSSf M. A No77 of 2016 stated in part, "*The question before this court is not whether this court has a discretion in the matter, the question is whether exercise of the discretion would deprive the respondent of the defence of limitation argued. I am bound by the decision in Rawal vs Mombasa Hardware Ltd91968)EA 392."*

Counsel submitted that the facts in the case of Comtel Integrators African Ltd vs NSSF were distinguishable from the ones in the instant application because it was argued by the Defendants in Comtel that reinstatement would work to defeat their defence of limitation, which is not the case in the present case.

Regarding res judicata, Counsel submitted that the application was not res judicata because it had never been heard and determined on its merits. That service of MA No133 of 2022 out of time does not hold water because it is no more and what is before court is M. A No216 of 2022.

On the issue of the suit proceeding without the 1st Plaintiff, Kakyoga Violet and the 6th Defendant Alfred Kaganda, Counsel submitted that the applicants in their affidavit in support deponed that they had settled with the 6th Defenadant and that the 1st Plaintiff's absence does not change the applicants claim and is not fatal to the proceedings. Counsel reiterated his earlier prayers that the application be allowed.

# **Determination of the application:**

I have carefully considered the Pleadings and submissions of the parties in this matter and below are the findings and the decision of this court.

The only issue for determination, is whether the dismissal of Civil Suit No. 44 of 2017 can be set aside and the suit re-instated, heard and determined on merit.

The suit was dismissed on the court's own motion on Wednesday 27th April,2022 under Order 17 rule 6 of the Civil Procedure Rules which provides for the dismissal of a suit if no step has been taken for two years.

Dismissal of an application will be justified if there has been inordinate and inexcusable delay in the prosecution of the action on the part of the plaintiff or his lawyers. The suit was dismissed because no step had been taken by the Plaintiffs in prosecuting the suit for two years.

Plaintiffs'/Applicants Counsel submitted that the plaintiffs disclosed sufficient cause to justify the court's exercise of its inherent powers to reinstate the main suit. That after the grant of the temporary injunction, the parties were engaged in mediation with a view to settle with the sixth defendant in the main suit but a settlement was never reached with the Respondents. Indeed, the Respondent's Counsel in his submissions agreed that the present application leaves out Alfred Kaganda and the Applicants aver that they reached a settlement with him.

The second reason advanced by the Plaintiffs/applicants Counsel was the effect of the COVID 19 Pandemic. That on the 11th day of December,2020 when the suit was called for mention, Counsel was present and informed Court that the parties were involved in a mediation. As a result, the suit was adjourned to 8th June,2021 on which date the country was locked down and the file lost position. I am inclined to agree with Respondents Counsel on this matter that courts were allowed some flexibility to operate after the total lockdown and a vigilant litigant ought to have followed up on his/her matter.

Be that as it may, this court is enjoined under Article 28 of the Constitution of the Republic of Uganda to hear and determine matters fully rather than prevent litigants from being heard. In Ismael Serugo vs KCC & The Attorney General Constitutional Appeal No.1 of 1998 per Mulenga JSC, "*a litigant should not be turned away from the seat of justice before his case is heard on its merits.* "The


Applicants stated that they were in the process of mediation and when the suit was dismissed. They acted promptly and filed Miscellaneous application No.133 of 2022. Miscellaneous Application No.133 of 2022 was filed by the Applicants on 12th July,2022 and withdrawn by the Applicants on the 31st day of October,2022 with leave of court. A plaintiff may be compelled for some adequate reason to withdraw or abandon his/her present proceedings and discontinuance does not prevent the plaintiff from commencing a fresh action. (See Mulondo v Semakula [1969] HCB 27. The Application that Respondents Counsel refers to was withdrawn before it was set down for hearing. It had been filed by the Applicant who is an illiterate and not conversant with the rules of procedure. Indeed when the instant application No.216 of 2022 was called, Respondents Counsel, Mr. Arinaitwe Justus did not have issue with this application nor the withdrawn No.133 of 2022 and stated that they could actually consent to it because the suit is a nonstarter. His argument is that had MA No133 been dismissed, the matter would be res judicata and this court would have no jurisdiction to entertain it. Respectfully to Respondents Counsel, this court does not agree with his proposition. For res judicata to arise, the matter must have been in issue in the former suit, parties must have been the same and the matter must have been heard and determined and finally decided upon by a court of competent jurisdiction. (emphasis mine)( See **Maniraguha Gashumba vs Sam Nkundye CACA No23 of 2005.** MA No.133 of 2022 was never heard and determined on its merits and res judicata does not arise.

I will now turn back to whether or not whether the dismissal of Civil Suit No. 44 of 2017 can be set aside and the suit re-instated, heard and determined on merit.

Respondents Counsel cited Comtel Integrators Africa Ltd vs NSSF M. A No77 of 2016 and I have perused it extensively. Indeed at the last page of his decision and in paragraph two thereof, the Hon. Justice Madrama stated thus; " *The question before this court is not whether this court has discretion in the matter. The question is whether exercise of the discretion would deprive the Respondent of the defence of limitation as argued. I am bound by the decision in Rawal vs The Mombasa Hardware Ltd[1968]EA 392."* The Judge went on to say, *In the cited*


*East African Court of appeal case the court held that it would exercise discretion in special circumstances and Law JA held, 'I personally consider that in the special circumstances of this case, the remedy provided for in r6, that is of bringing a fresh suit , was not intended to be exhaustive and that the inherent jurisdiction vested in courts by s.97 of the Civil Procedure Act is for that reason not excluded"* I associate myself with the reasoning in these decisions. The remedy in rule 6(2) was not intended to be exhaustive.

Having established that the court may invoke its discretionary powers to reinstate a suit dismissed under Order 17 rule 6(1) of the Civil Procedure Rules, the question to determine is if the applicants have demonstrated justifiable reason in order for the court to exercise its discretion.

The Applicants Counsel pleaded sufficient cause. Sufficient cause has no particular definition in the statutes where it appears. It is analogous to "good cause' or "just cause" which simply means, "legally sufficient reason. ( **Black's Law Dictionary 8th Edition at page 231)**

The Applicants contend that they were disrupted by the COVID pandemic and that there were ongoing negotiations between the parties. As soon as they learned of the dismissal, the 1 st Applicant without Counsel's assistance filed an application to set aside the orders dismissing the suit and sought its reinstatement. This to an extent shows someone interested in prosecuting the case.

Without delving into the merits of the suit and most importantly, the Applicants stated in their affidavits in support of the application that the suit land is where they reside and derive their sustenance. This is a matter in which the court is inclined to allow the substance of the dispute to be investigated rather than refuse it.

*The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and errors, lapses should not necessarily debar a litigant in pursuit of his rights. .. It would seem that the main purpose of litigation namely, the hearing and determination of*


*disputes should be fostered rather than hindered.* Per Oder JSC quoting George CJ in Esaji vs Solak 1968 EA 218 at 222 in the case of **Banco Arabe Espanol vs Bank of Uganda SCCA No.8 of 1998.**

In the circumstances and for the reasons stated above, I am inclined to allow the Applicants application in the orders sought.

The application is hereby allowed.

The dismissal of Civil Suit No.44 of 2017 is hereby set aside.

Civil suit No.44 of 2017 is hereby reinstated. The costs of this application shall remain in the cause.

Ruling delivered at Masaka by email this 23rd day of January,2023.

Victoria Nakintu Nkwanga Katamba

Judge.