Khalifan v Ayubu & 2 Others (Civil Appeal 29 of 2023) [2024] UGHC 516 (21 May 2024)

Full Case Text

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-LD-CV-CA No. 0029 OF 2023**

**(ARISING FROM KASESE CHIEF MAGISTRATE KAS-O2-CV-LD-MA No. 008 OF 2023)**

**(ALL ARISING FROM KASESE CHIEF MAGISTRATE KAS-02-CV-CS-LD No. 004 OF 2019)**

**MZEE KHALIFAN=========================================APPELLANT**

**VERSUS**

1. **SARA AYUBU** 2. **ZAITUN AYUBU** 3. **MADINA AYUBU==================================RESPONDENTS**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Appellant represented by Bagyenda & Co. Advocates

Respondents represented by Kanyonyi & Co. Advocates

**RULING**

**BACKGROUND:**

The origins of this appeal are derived from a civil suit filed before the Magistrate Grade One in Bwera vide **Mzee Khalifan v Sara Ayubu and 2 Others – KAS-02-CV-CS-LD No. 004 of 2019.**

On 13th March 2023, in the absence of the Appellant/Plaintiff, the Respondents/Defendants moved the Learned Trial Magistrate to dismiss the suit under Order 9 Rule 22 of the Civil Procedure Rules for want of prosecution. The Learned Trial Magistrate had then acted accordingly to dismiss the suit observing that the Appellant/Plaintiff appeared disinterested in pursuing the suit.

Upon the dismissal of the aforementioned suit, the Appellant had proceeded to apply to the same court under Order 9 Rule 23 of the Civil Procedure Rules for setting aside of the dismissal and reinstatement of the suit vide **Mzee Khalifan v Sarah Ayubu and 2 Others – KASESE CHIEF MAGISTRATE KAS-O2-CV-LD-MA No. 008 OF 2023.**

The grounds in the application were briefly that:

1. The Plaintiff’s lawful Attorney as well as his lawyer were not aware that the suit had been fixed for hearing on 13th March 2013. 2. The Plaintiff was still interested in pursuing the case which involved a land dispute of substantial value and already had witnesses ready to testify. 3. If the application were to be denied it would leave an unresolved dispute in limbo. 4. The application was brought without delay and it was fair and just that it would be allowed in the interests of both parties.

The lower Court considered the application alongside submissions of the parties and delivered a ruling on the 23rd of May 2023. In the ruling, the Learned Trial Magistrate dismissed the application on the ground that the Plaintiff had failed to provide sufficient cause within the requirements of Order 9 Rule 23. The Learned Trial Magistrate placed reliance upon the Court Record from 19th January 2023 up to the point of dismissal on 13th March 2023 and noted that the Plaintiff had been in court when the matter was adjourned to 23rd February 2023. The Learned Magistrate then noted that the Plaintiff and his lawyer had not been in Court on the 23rd of February 2023 and the matter had been adjourned for the last time with the Court noting that the matter was a backlog matter dating back to 2019.

The Learned Magistrate had reasoned in the ruling that it was the 2nd time that the Plaintiff and his lawyer had failed to attend court despite the consistent attendance of the defendants and their lawyer. The Learned Magistrate further justified the dismissal of the application on the basis that the Plaintiff and his lawyer had not been truthful about not knowing that the matter was coming up on the 13th of March 2023. The Learned Trial Magistrate subsequently dismissed the application effectively declining the prayer to set aside the dismissal of the suit.

The Plaintiff/Former Applicant subsequently appealed against the aforementioned dismissal to this court on the grounds that:

1. The Learned Trial Magistrate Grade 1 erred in law and fact when he failed to find that the Appellant’s Counsel was not served with the Hearing Notice for 13th March 2023 and the same constitutes sufficient cause. 2. The Learned Trial Magistrate erred in law and fact when he relied on hearsay evidence from the bar that Counsel for the Plaintiff had agreed with Counsel for the Defendants that the matter be adjourned to 13th March 2023. 3. The Learned Trial Magistrate erred in law and fact when he held that he did not see any interest on the part of the Plaintiff/Appellant in prosecuting his matter yet witness statements were on court record.

The Appellant prayed that this Court allows the appeal and sets aside the lower court decision and that the costs of the appeal and of the lower court be granted to the Appellant.

The Appellant and Respondents’ respective lawyers prepared written submissions with respect to the appeal.

Counsel Geoffrey Mishele submitted for the Appellant on the grounds above as follows.

Concerning the first ground, Counsel for the Appellant argued that the Trial Magistrate had erroneously concluded that the Appellant/Plaintiff and his advocate had been aware that the matter had been fixed for hearing on 13th March 2023. Counsel argued that Court had erroneously relied upon the submissions of Counsel for the Defendant/Respondent without formal proof. Counsel also pointed out that the Respondents affidavit in reply to the application as sworn by the 3rd Respondent to this appeal was contradictory as it was suggested therein that the Plaintiff and his advocate had been in court when the matter was adjourned which was not the case.

However, the primary argument in this regard was that the Learned Trial Magistrate ought to have required the Respondents/Defendants to extract a Hearing Notice for service upon the Appellant/Plaintiff whereupon the Respondents/Defendants would be expected to file and affidavit of service as proof that the Appellant/Plaintiff had been informed of the hearing date. Counsel argued that in the absence of this key step meant that the Appellant/Plaintiff had been condemned unheard as there was no proof of service of a Hearing Notice and that to this extent the Appellant/Plaintiff had a sufficient cause which the Learned Trial Magistrate had failed to take into account.

Counsel for the Appellant argued that in as much as the Trail Magistrate had gone ahead to rely upon the Respondents’ advocate’s word of mouth concerning agreement between the parties’ respective lawyers on the hearing date, the Learned Magistrate had relied upon unsubstantiated evidence from the bar which was unsupported in writing. Counsel argued that the Trial Magistrate ought to have required written proof of agreement of the parties upon the hearing date but had erroneously relied upon word of mouth.

Regarding the second ground Counsel for the Appellant argued in brief that the Trial Magistrate had erroneously relied on submissions by Counsel for the Respondent that they had agreed on an adjournment to 13th March 2023. To that extent he argued that the Trial Magistrate had relied upon hearsay to conclude that the Plaintiff was aware of the date on which his case was dismissed.

Counsel for the Respondent argued in response that Counsel for the Appellant had in fact met with him on 23rd February 2023 and agreed to an adjournment and that he could not now turn around and dispute the same.

Concerning the third ground, Counsel for the Appellant argued that the Learned Trial Magistrate had erred in his ruling when he stated that,

*“It was the second time the matter was coming up and the plaintiff and his counsel were not in court and I did not see any interest on the part of the plaintiff in prosecuting this matter. Even if counsel had not moved court, I would still wonder how far I could have stretched the defendants and their lawyer who have consistently come to court since 2019.”*

Concerning the above, Counsel argued that the Learned Trial Magistrate’s conclusions were not consistent with the facts of the court record and that there had been an element of bias against the Appellant. Counsel for the Appellant then drew the attention of this Court to the court record dating back to 2019 and explained the sequence of events in brief as follows:

* 28th March 2019: The matter was referred to mediation in the presence of both Counsel. * 2020-2021: Disruptions caused by Covid Lockdown. * 4th March 2022: Suit came up for mention in the presence of both Counsel and was adjourned to 15th June 2022 as Counsel for Defendants had prayed for leave to file counterclaim and witness statements. * 15th June 2022: Trial Magistrate absent. Matter adjourned to 13th July 2022. * 13th July 2022: Counsel for Plaintiff present but Counsel for Defendant absent. 1st Defendant present in court. Matter adjourned to 17th August 2022. No counterclaim filed. * 17th August 2022: Both Counsel present. Matter adjourned to 19th October 2022 on prayer of Counsel for Defendant to file counterclaim. * 19th October 2022: No counterclaim filed. * 16th November 2022: Both Counsel present. No counterclaim filed. Matter adjourned to 5th December 2022 * 28th November 2022: Plaintiff files witness statements * 19th January 2023: Counsel for Plaintiff present, Counsel for Defendant absent but had abandoned counterclaim but opted to file witness statements 3 months after court mandated schedule.

Counsel for the Appellant contended that he had only been absent once from court on 23rd February 2023 and that thereafter no further no communication had been made to him about the fixture on 13th March 2023.

Counsel for the Appellant further contended that it was erroneous to subject the Plaintiff to dismissal on account of the absence of Counsel on 23rd February 2023 and the subsequent related absence on 13th March 2023. Counsel argued that the Defendants had also contributed to the delay in the matter by not filing their counterclaim and pleadings as mandated by court on their prayers. Counsel further prayed that the mistake of Counsel should not be visited upon the client.

Counsel for the Appellant concluded by praying for this Court not to allow procedural errors to prevent the substantive merits of the Plaintiff’s case from being addressed.

Counsel for the Respondents Kanyonyi Luke submitted in reply and raised two preliminary points of law as follows:

1. The Appeal lacked merit as the Appellant did not extract a court order upon which this appeal is founded. 2. The grounds raised in the appeal offend Order 43 Rule 2 of the Civil Procedure Rules as they are argumentative and narrative.

With regard to the first point Counsel argued that the appeal could not stand as there was no order of court extracted. Counsel cited **Attorney General v Tinyefuza – Constitutional Appeal No. 1 of 1997** and Section 220(1)(a) of the Magistrates Courts Act in support of his argument. He further cited on persuasive grounds the decision in **Mbambu Stella v Monday Nicholas – Fort Portal High Court Civil Appeal No. 01 of 2016.** Based on the foregoing decisions and law Counsel argued that the appeal was fatally defective.

As concerns the second point Counsel Kanyonyi argued that the grounds were narrative and argumentative contrary to Order 43 Rule 2 of the Civil Procedure Rules. On the basis of decisions made in the cases of **National Insurance Corporation v Pellcan Air Services – CACA 15/2023** and **Kizito Mpumpi v Seruga Frank – High Court Civil Appeal No. 68 of 2010** Counsel argued that grounds 1 and 2 ought to be struck out of the appeal.

As regards the merits of the appeal, Counsel for the Respondent argued as follows.

Concerning the first ground of appeal, Counsel Kanyonyi argued that the Trial Magistrate had correctly addressed his mind to the law and facts and determined that there was no sufficient cause. Counsel argued that the adjournment made on 19th January 2023 to the date of 23rd February 2023 was done in the presence of the Appellant and his lawyer. Counsel then pointed out that the Appellant and his lawyer became absent without prior notice on 23rd February 2023 and that the Trial Magistrate became lenient and allowed an adjournment to 13th March 2023. Counsel also indicated that there were 50 days between 19th January 2023 to 13th March 2023 during which the Appellant took no serious steps to prosecute the case. Counsel further argued that it was not the duty of Counsel for the Defendants to prosecute the Plaintiff’s case to extent of service of hearing notice and that the Appellant ought to have consulted either the Court Clerk or Counsel for the Respondent on the status of the case. To that extent Counsel for the Respondent argued that the first ground lacked merit.

Concerning the second ground, Counsel for the Respondent argued that it could not have been hearsay evidence that the Trial Magistrate relied upon because in Paragraph 6 at Page 6 of the submissions of the Appellant, it was clear that his lawyer agreed with Counsel for the Respondent to seek an adjournment on 23rd February 2023. To that extent, Counsel argued that the Appellant’s Counsel ought to have consulted to find out which date court had set.

Concerning the third ground, Counsel for the Respondent argued that the Appellant placing witness statements on the record alone was not sufficient to demonstrate vigilance. He reasoned that it was upon the Appellant to actively begin his case in line with Order 18 Rule 1 of the Civil Procedure Rules and also pursue the case ex parte under Order 9 Rule 20(1)(a) if need be.

Counsel for the Respondent also prayed that in the event that the appeal is allowed then the costs of the application be met by the Appellant who has drained the Respondents by continually dragging them to court when not prepared to prosecute the same.

By way of rejoinder, Counsel for the Appellant argued that the preliminary points of law raised by the Respondent were misconceived. Counsel Mishele argued that the failure to extract a decree from a judgment does not render an appeal arising therefrom incompetent. In raising this argument, Counsel cited the case of **John Byekwaso and Another v Yudaya Ndagire – HCCA No. 078 of 2012.** Based on that case Counsel argued that Section 220(1)(a) of the Magistrates Courts Act was in conflict with the Constitution to the extent that it created a technicality hindering access to substantive justice. Furthermore, in reliance on the same case, Counsel highlighted the fact that Order 21 Rule 7(3) of the Civil Procedure Rules placed the responsibility of drawing a decree on the Magistrate and the failure to do so could not be visited upon a litigant. Counsel further placed reliance upon **Banco Arabe Espanol v Bank of Uganda – Supreme Court Civil Appeal No. 42 of 1998** wherein it was held that an appeal by its very nature is against the judgment or a reasoned order and not the decree extracted from the judgment or a reasoned order. Counsel therefore argued that the absence of the decree was a technicality and prayed Court to determine the appeal on its merits in line with Article 126(2)(e) of the Constitution.

With regard to the substantive grounds of the appeal, Counsel for the Appellant argued in rejoinder as follows.

Concerning the first ground, Counsel agreed that the adjournment of 23rd February 2023 was mutually agreed upon but the hearing on 13th March 2023 was an ambush as the previous mutually agreed adjournment placed a duty on the Respondent’s Advocate to extract a hearing notice and serve the Appellant.

Concerning the second ground Counsel for the Appellant argued that in the absence of proof that Counsel for the Respondent made the next hearing date of 13th March 2023 known to the Appellant then it constituted trial by ambush.

Concerning the third ground, Counsel for the Appellant reiterated that the Appellant had not been dilatory and that the filing of statements cannot be deemed as simply dumping in court. These were all pertinent steps taken towards pursuing his case. He further argued that any blame with regard to the witnesses not being led in court was the fault of Counsel for which the client should not be held liable.

Counsel concluded by praying that the ruling and order of the lower court be set aside and the file remitted to the Chief Magistrate for re-allocation and trial. He further prayed that costs of the appeal and the Miscellaneous Application in the lower court.

**ANALYSIS AND RESOLUTION OF THE APPEAL:**

Having considered the grounds of the appeal and the submissions of both Counsel in this matter, my analysis of the same follows.

With regard to the preliminary objections, Counsel for the Respondent argued two points of law with the first being that the appeal was defective because there was no decree or order extracted from the decision of the Trial Magistrate for purposes of an appeal in line with Section 220(1)(a) of the Magistrates Courts Act.

I have considered the aforementioned provision in the context of Article 126(2)(e) of the Constitution alongside the decision of Lady Justice Percy Night Tuhaise in the case of **John Byekwaso and Another v Yudaya Ndagire – HCCA No. 78 of 2012** as cited by Counsel for the Appellant. I am in agreement with the position of my Learned Sister that Section 220(1)(a) of the Magistrate Courts Act no longer holds sway in light of the requirement for substantive justice without undue regard to technicalities stipulated in Article 126(2)(e) of the Constitution. The reasoning in her decision in this regard is very clear and I have nothing useful to add thereto. She held regarding the postulation that non-adherence to Section 220(1)(a) renders an appeal defective that,

*“This legal position appears to have changed in light of Article 126(2) (e) of the said Constitution which enjoins courts to administer substantive justice without undue regard to technicalities. It has since been held by the Court of Appeal in* ***Banco Arabe Espanol V Bank of Uganda Civil Appeal No. 42/1998*** *that the extraction of a decree was a mere technicality which the old municipal law put in the way of intending appellants and which at times prevented them from having their cases heard on the merits, and that such a law cannot co exist in the context of Article 126(2) (e) of the Constitution. The position was maintained by the same Court of Appeal in* ***Standard Chartered Bank (U) Ltd V Grand Hotel (U) Ltd Civil Appeal No. 13/1999****.*

*It is clear from the foregoing decisions, which I am bound to follow, that the extraction of a formal decree embodying the decision complained of is no longer a legal requirement in the institution of an appeal. The court in the cited* ***Banco Arabe Espanol*** *case stated that an appeal by its very nature is against the judgment of a reasoned order and not the decree extracted from the judgment or the reasoned order. Section 220(1) (a) of the Magistrate’s Act is apparently now in conflict with the Constitution which takes precedence as the supreme law of the land. Besides, as rightly submitted by the applicant’s Counsel, Order 21 rule 7(3) of the Civil Procedure Rules requires the magistrate who pronounced the judgement to draw up the decree. To that extent, the magistrate’s failure to extract the decree should not be visited on the appellant.”*

The failure to extract a decree or order in this matter does not therefore render this appeal defective and this point of law fails.

Concerning the question of the grounds being narrative and argumentative, Counsel for the Respondent argued that to the extent that the grounds were framed contrary to Order 43 Rule 2 of the Civil Procedure Rules. The said provision requires that the grounds raised in a Memorandum of Appeal must set forth concisely and under distinct heads the grounds of objection.

Counsel cited the position of the Court of Appeal in the case of **National Insurance Corporation v Pellcan Air Services – Civil Appeal No. 15 of 2023** to the effect that a ground that offended the rules of court in as far as how grounds of appeal shall be framed should be struck off.

Counsel went on to challenge Grounds 1 to 3 as argumentative and narrative highlighting the following words:

Ground 1: “ … *appellant’s Counsel was not served with a hearing notice for 13/03/2023 and the same constituted a sufficient cause.”*

Ground 2: “ … *he relied on hearsay evidence from the bar that counsel for the plaintiff had agreed with Counsel for the Defendants that the matter be adjourned to 13/3/2023.”*

Ground 3: “ … *yet witness statements were on court record.”*

Counsel for the Appellant contended that Counsel for the Respondent had not demonstrated how the words above offended the requirements of Order 43 Rule 2 of the Civil Procedure Rules.

With regard to the above, I refer to the case of **Dr. Baveewo Steven v Kaggwa Anthony – HCCA No. 1 of 2020.** In that case Justice Musa Ssekaana held that,

*“For a ground of appeal which alleges an error or misdirection in law to be a valid ground of appeal it must comply with the following conditions:*

*a) Quote a passage in the judgment where the misdirection or error in law is alleged to have occurred;*

*b) Specify the nature of the error in law or misdirection; and*

*c) Give full substantial particulars of the alleged error or misdirection.*

*The ground of appeal must state clearly the complaint against the judgment so that the adverse party or the court is not thrown in a state of confusion in trying to decipher the content or nature of the ground. Therefore, it must be specific and general in terms.”*

When I consider the grounds in this appeal alongside the parameters specified by my Learned Brother Justice Ssekaana, I agree with Counsel for the Appellant that Counsel for the Respondent has not disclosed how the words he quoted from the grounds of appeal are argumentative or narrative. The grounds clearly cite the offending portions of the Trial Magistrate’s decision and the nature of the error warranting appeal with particulars of the same.

I therefore find that this point of law also fails and accordingly overrule the preliminary objections in this appeal.

Before I go on to address the substantive grounds of the appeal, I bear in mind that the duty of the first Appellate Court. In the case of **Frederick J. K. Zaabwe v Orient Bank and 5 Others – Supreme Court Civil Appeal No. 4 of 2006**, the Hon. Justice Bart Katureebe (as he then was) quoted with approval the parameters cited by Justice Amos Twinomujuni guiding his role in the matter before the Court of Appeal as a first appellate court,

*“The duty of this court as the first appellate court is well settled. It is to evaluate all the evidence which was adduced before the trial court and to arrive at its own conclusions as to whether the finding of the trial court can be supported … I have studied the record of the trial … and all the evidence which was adduced before the learned trial judge. I now proceed to evaluate the evidence and to pronounce myself on the conclusion reached by the trial court”.*

It is with the above in mind that I now proceed to address the grounds in this matter.

**GROUND 1: SUFFICIENT CAUSE**

In considering this ground, I note that the Learned Trial Magistrate founded his ruling on an application brought largely under Order 9 Rule 23(1) of the Civil Procedure Rules. It is provided thereunder that,

*“Where a suit is wholly or partly dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was sufficient cause for non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.”*

Rule 22 as cited in Rule 23 above provides that,

*“Where the defendant appears, and the plaintiff does not appear, when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part of it, in which case the court shall pass a decree against the defendant upon such admission, and, where only part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.”*

From the rules above it is clear that once Court dismisses a case called on for hearing for non-appearance of the plaintiff, the only recourse open to the plaintiff is to apply for an order to set aside the dismissal. The Court shall only set aside the dismissal upon being satisfied that there was sufficient cause for non-appearance of the Plaintiff.

In this matter the Appellant/Plaintiff applied to the lower court on the grounds that Counsel for the Plaintiff and the Plaintiff’s Attorney were unaware of the fixture on 13th March 2023. Counsel for the Appellant argued that the fixture was made on 23rd February 2023 a date when he had agreed with Counsel for the Respondents/Defendants to seek an adjournment. In his ruling the Learned Trial Magistrate held that,

*“On 23rd February the plaintiff’s attorney and his lawyer were absent despite the matter being adjourned in their presence. None of them was courteous enough to inform court of their absence, at least it’s not on court record. Mr. Kanyonyi informed court that he had met and agreed with counsel for the plaintiff that the matter be adjourned and he sought adjournment. Court noted this with concern and had this put on record.”*

In considering the above, I find that the Learned Trial Magistrate contradicted himself in stating that the Plaintiff and his lawyer had not been courteous enough to inform court of their absence. This is because he also noted in his ruling that Mr. Kanyonyi (Counsel for the Respondents/Defendants) informed court that he had met Counsel for the Plaintiff and they agreed that the matter be adjourned. It is likely the Learned Magistrate may have been referring to the failure to notify court prior to the hearing but regardless of what he meant the fact still remained that court had notice of the absence of the Plaintiff and his lawyer albeit through Counsel for the Respondent.

Notwithstanding the above, Counsel for the Appellant/Plaintiff argued that it was incumbent upon Counsel for the Respondent to notify him of the fixture on 13th March 2023 or extract a hearing notice. Because this was not done, Counsel for the Appellant argued that there was sufficient cause for his non-attendance on the day in question. Counsel for the Respondent rejected this argument claiming that it was incumbent upon his colleague to follow up his own case by inquiring about what had transpired in court on 23rd February 2023.

While I do agree that there was an element of lack of vigilance on the part of Counsel for the Appellant for not following up with his colleague. I do also note that Counsel for the Respondent in this regard also shares the blame. As the Trial Magistrate correctly observed, Counsel Kanyonyi for the Respondents/Defendants is on record as stating that he had met his colleague and they had agreed to an adjournment. Once this position was communicated to court, it meant that Counsel Kanyonyi was bound to communicate the adjournment to his colleague because he too had accepted and presented the proposal for adjournment to court. He had in essence become party to leading court into granting an adjournment. It is therefore absurd and unprofessional for him to turn around and act like he had no part in creating the situation.

This was a situation where the Learned Trial Magistrate ought in my view to have recognized that the circumstances leading to the absence of the Plaintiff and his lawyer on 13th March 2023 were not solely the fault of the Plaintiff’s lawyer. In such circumstances, prudence dictated that court should have issued a Hearing Notice and required the party in court to serve the absent party especially given that the party in court is communicating a jointly agreed request for adjournment. The reason for this is clear. First, it would have left no room for dispute about whether Counsel for the Respondent should inform his colleague or not. Second, if there had been proof of service of a Hearing Notice then the lower court would have been in a better position to place blame squarely at the feet of the Plaintiff.

In the circumstances, therefore I am constrained to agree with Counsel for the Plaintiff that there was indeed sufficient cause for setting aside the dismissal even if simply in the interests of fairness and transparency. There should have been unequivocal evidence of the Plaintiff being made aware of the adjournment to 13th March 2023 before dismissing the case.

In this regard, I note also that the apparent cause for dismissal rests entirely on the failure of both Counsel in this matter to coordinate effectively and professionally. To that extent, it is trite law that the mistakes of Counsel cannot be visited upon the client. According to the lower court record of 23rd February 2023 the circumstances leading up to the dismissal on 13th March 2023 rested entirely at the feet of both Counsel in this matter and I see no reason to subject the Plaintiff’s case to their poor judgment.

This ground therefore succeeds.

**GROUND 2: RELIANCE ON HEARSAY EVIDENCE**

I have considered the context of the argument by the Appellant in this regard. It is my view that whereas Counsel for the Appellant submitted that by virtue of Page 5 of the ruling the Learned Trial Magistrate relied on hearsay to conclude that the Plaintiff was aware of the adjournment to 13th March 2023, there is nothing in the ruling especially at Page 5 that suggests that the Learned Magistrate relied upon hearsay.

What I noted in the ruling was that the Learned Trial Magistrate held on Pages 5 – 6 of the ruling that,

*“At a time the plaintiff and his lawyer were in court and the matter was adjourned to a specific date, it was incumbent upon the plaintiff and his lawyer to consult the court record and know when their matter was to come up next but they did not.*

*The claim by the applicant or his attorney that they did not know when the case was coming or knowing it was coming upon 15th March 2023 is not being truthful and cannot warrant to show sufficient cause in my view …”*

From the above, it seems that the Learned Trial Magistrate probably meant that the plaintiff and his lawyer having not been in court ought to have consulted the court record. Otherwise, the statement that they were in court and yet should have consulted the court record does not make sense.

Nonetheless, it is still clear to me that there was no evidence in the ruling to support the conclusion that the applicant and his attorney had not been truthful. To reach such a conclusion there needed to be proof that the Plaintiff and/or his lawyer had knowledge of the fixture on 13th March 2023. By every indication, this was not the case because Counsel for the Respondent who was in court on 23rd February 2023 clearly did not inform his colleague about the fixture and instead blamed his colleague for not following up. On the other hand, Counsel for the Appellant blamed his colleague for not informing him. In the circumstances, there was no evidential basis for concluding that the Appellant was not truthful and that to that extent there was no sufficient cause.

To the extent of the foregoing, I find that whereas the Learned Trial Magistrate did not rely on hearsay evidence to make his conclusions, it is clear that he did not have an evidential basis upon which to determine that the Appellant had been untruthful.

This ground therefore succeeds in part to the extent that while the Learned Trial Magistrate never relied on hearsay to cast blame on the Appellant and his lawyer, his conclusion that they were untruthful was evidentially unsupported.

**GROUND 3: LACK OF INTEREST OF THE PLAINTIFF**

Concerning this ground, I refer to the reference made by Counsel for the Appellant to part of the ruling of the Learned Trial Magistrate,

Counsel for the Appellant denied that the Appellant lacked interest in the case arguing that the Appellant had been diligent and had even filed witness statements. Counsel for the Appellant also submitted at length detailing the timeline of the entire case while Counsel for the Respondent maintained that the Appellant was not vigilant in pursuing the case.

Upon examining the ruling of the Learned Trial Magistrate alongside the court record, it was immediately apparent that whereas the court record starts on 28th of November 2021, the ruling primarily focuses on events occurring between the 19th of January 2023 up to 13th March 2023 when the case was dismissed.

From the statement above in the ruling, the Learned Trial Magistrate made two fateful conclusions. First, he stated that it was the second time the matter was coming up and the Plaintiff and his Counsel were not in court. Secondly, he stated that the Defendants and their lawyer have consistently come to court since 2019.

In both conclusions, the Learned Trial Magistrate failed to take into consideration the entirety of the court record.

From 28th of November 2021, there were 13 occasions when the dismissed case was scheduled before court. Out of the 13 occasions, Counsel for the Appellant attended court 6 times while Counsel for the Defendants attended court 7 times. Of those attendances, at least 4 were joint attendances by both Counsel.

Of those attendances, some were of particular significance. The first of these was on 30th March 2022 when both Counsel with the consent of the parties agreed that the Defendants would file a counterclaim. Subsequently on 17th August 2022 after at least two adjournments, Counsel for the Respondent prayed for an adjournment to allow more time for the counterclaim to be filed. This was granted and the Defendant was directed by court to file the counterclaim by 31st August 2022.

By 16th November 2022 neither party had managed to file their respective trial documents. Inexplicably though, Counsel for the Respondent prayed for the matter to proceed with urgency as it was the Plaintiff’s case. At that point, he made no mention at all about whether he still intended to file a counterclaim.

By 5th December 2022, the record shows that Counsel for the Plaintiff had filed witness statements and Counsel for the Defendants prayed for adjournment to allow him file witness statements. The matter was then adjourned to 19th January 2023 at which point the Trial Magistrate began tracking the attendance of the Plaintiff.

On 19th January 2023, the record shows that Counsel for the Appellant/Plaintiff was in court but Counsel for the Respondents/Defendants was absent. According to the record Counsel for the Appellant sought an adjournment for 23rd February 2023 at 2PM as his colleague was attending a meeting at Kasese Chief Magistrate Court.

On 23rd February 2023, Counsel for the Respondent notified court about his colleague’s absence and requested an adjournment by mutual agreement which was reluctantly granted by court leading to the contentious dismissal of the case on 13th March 2023 on which this appeal is based.

From my analysis of the record, it is evident to me that the blame for the delays in this case rests in almost equal measure on both Counsel in this matter. The Learned Trial Magistrate erred in fact when he attributed the delays in this matter entirely to the Appellant and that to that extent the Appellant had not shown interest in his case. To reach such a conclusion, the justice of the matter required that the Learned Trial Magistrate consider the facts in their entirety from the very beginning of the case. Had this been done, the Trial Magistrate would have noted that from 30th March 2022 up to 16th November 2022, Counsel for the Respondent had significantly contributed to holding up the progression of the case. This was because he prayed to be allowed to file a counterclaim only to inexplicably abandon the prayer even after being expressly directed by court to make good on his prayer by 31st August 2022.

Counsel for the Respondent cannot therefore be seen to plead that the blame lay only at the feet of his colleague. In this regard, Counsel for the Respondent was clearly in *pari delicto* when it came to the delays in this case.

From the facts apparent in the Court record, I do not see any material basis upon which one may conclude that the Appellant/Plaintiff was not interested in his case. The Appellant/Plaintiff had even taken then trouble to appoint a lawful attorney to appear in his stead in court along with his lawyer. All delays in this matter were clearly determinable as caused by the respective Counsel and as I have already pointed out such failures of Counsel cannot be visited upon the client.

I therefore find that this ground succeeds as the Learned Trial Magistrate ought to have considered the court record in its entirety before drawing a conclusion that the Appellant/Plaintiff was not interested in the case.

Before I take leave of this ground I feel it important to point out that should a judicial officer feel compelled to dismiss a case for want of prosecution, then justice and fairness require that the judicial officer consider the conduct of Plaintiff, Applicant or Appellant, as the case may be, in the context of the entire case and not to evaluate the conduct selectively based on portions of the court record.

**ORDERS:**

1. The Appeal against the decision in Kasese Chief Magistrate Court KAS-02-CV-LD Miscellaneous Application No. 8 of 2023 is hereby allowed. 2. The Order of the Trial Magistrate issued on 13th March 2023 dismissing Bwera Court Civil Suit No. CV-LD-CS No. 004 of 2019 is hereby set aside. 3. Bwera Court Civil Suit No. CV-LD-CS No. 004 of 2019 is hereby reinstated and referred back to Kasese Chief Magistrate for allocation and conclusion of trial. 4. In as much as the circumstances leading to the dismissal of the suit were the result of actions of both Counsel in this matter, I decline to award any costs in this matter as the litigants should not carry the blame for the lack of coordination of their respective lawyers.

**David S. L. Makumbi**

**JUDGE**

**21/5/24**