Kwagala v Kotecha (Miscellaneous Application 316 of 2022) [2024] UGHC 649 (5 July 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **MISCELLANEOUS APPLICATION NO.316 OF 2022** ARISING FROM CIVIL REVISION CAUSE NO.10 OF 2021 ARISING FROM MISCELLANEOUS APPLICATION NO.009 OF 2020 (ALL ARISING FROM MISCELLANEOUS CAUSE NO. 050 OF 2020)

# KWAGALA BEN ::::::::::::::::::::::::::::::::::: **VERSUS** VIJAY AMITRAL KOTECHA :::::::::::::::::::::::::::::::::::: BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

#### **RULING**

### **Introduction**

This Application was brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Orders 9 Rule 18 and 52 Rules 1, 2 & 3 of the Civil Procedure Rules seeking orders that the order made on the 30<sup>th</sup> of May 2022 dismissing Civil Revision Cause No.10 of 2021 be set aside and that Civil Revision Cause No.10 of 2021 be reinstated and fixed for hearing on its merits.

The grounds of the Application were laid out in the affidavit in support of the Application deponed by Kwagala Ben but are briefly stated below;

- 1. That the Applicant was not aware of the date (30.05.2022) when his civil revision cause No.10 of 2021 was fixed and dismissed by this Honourable Court. - 2. That the Applicant is still very interested in his said main Application and ought in the interest of justice be heard on its merits. - 3. That the only date the Applicant was aware of and scheduled for hearing of his main Application was 22.08.2022 and not 30.05.2022 - 4. That there was confusion about the fixtures and hearing dates of the said main Application caused by misplacement of the court file. - 5. That there is sufficient and good reason for the Applicant's non-appearance and/or failure to appear in court on the day the matter was dismissed.

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### **Representation**

The Applicant was represented by Counsel Jacob Osillo and Sharif Semaganda while the Respondent was represented by Counsel Stephen Muzuusa.

### **Determination of the Application**

The court shall adopt the issues raised by the party to enable it determine this suit;

- 1. Whether the order dismissing Civil Revision Cause No.10 of 2021 should be set aside and the suit set down for hearing on its merits. - 2. What remedies are available to the parties?

### **Preliminaries**

Counsel for the Applicant raised a preliminary point of law to the effect that the Respondent filed and served his submissions on the 14<sup>th</sup> of August 2023, 13 days outside the time-lines directed by this Honourable Court. Relying on Order 17 rule 4 of the Civil Procedure Rules and the case of Ndawula Ronald Vs Hiraa Traders M. A No.1153 of 2020, counsel prayed that the court proceeds to hear and decide the Application based on the submissions of the Applicant as the Respondent's submissions were filed out of time in violation of court's schedule.

In light of Article $126(2)(e)$ of the Constitution, I will overrule this objection on grounds that this court is interested more in dispensing substantive justice than strictly adhering to technicalities. I will move forward to consider both parties' submissions.

### Issue 1: Whether the order dismissing Civil Revision Cause No.10 of 2021 should be set aside and the suit set down for hearing on its merits

#### Submissions by Counsel for the Applicant

Relying on Order 9 rule 18 of the Civil Procedure Rules (CPR) and the case of Bishop Jacinto Kibuuka V The Uganda Catholic Lawyers' Society and 2 Others Miscellaneous Application No.696 of 2018, Counsel argued that the Applicant had sufficient cause for his non-appearance when Civil Revision Cause No.10 of 2021 was fixed and dismissed because on several occasions the court file had gone missing and he was not aware of the hearing.

Counsel further argued that the Applicant was never served or made aware of the case fixture on 20/05/2022 as stated in paragraph 6 of his affidavit in support of the application. The fact

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that he was not aware of the hearing date during a period in which the file went missing from the registry is sufficient cause and thus the suit should be reinstated.

### Submissions by counsel for the Respondent

Counsel started by raising a preliminary objection that the application was bad in law. He asserted that the learned trial judge dismissed Revision Cause No. 10 of 2022 for want of prosecution. The matter having been dismissed for want of prosecution, the applicable legal provision is Order 17 Rule 5 of the Civil Procedure (Amendment) Rules 2019 which sets out the remedy in such a case which would be to file a fresh suit subject to the law of limitation.

Counsel also argued that the affidavit in support was tainted with falsehoods and should be treated with scrutiny. He further said that the Applicant led no evidence to prove which court registry staff had intimated to him that the court file was missing.

Counsel argued that the affidavit evidence presented by the Applicant manifests the highest degree of negligence and character of a litigant who failed to exercise vigilance and clearly had no interest at all in prosecuting the case filed by him.

Counsel also submitted that this application seems to be a calculated move by the Applicant to waive liability on his part and pin the same on the court registry staff which in turn not only tarnishes their image but also the image of the judiciary. He thus prayed that this suit be dismissed.

### **Submissions in Rejoinder**

Counsel maintained his position that the Applicant had sufficient cause for his nonappearance when Revision Cause No. 10 of 2021 was fixed and dismissed. That the Applicant has always been vigilant and interested in pursuing the prosecution of the case.

In reply to the point of law raised by the Respondent's counsel, counsel for the Applicant submitted that the Application was not dismissed under Order 17 rule 5 of the Civil Procedure (Amendment) Rules as stated in the Respondent's submission as the said order does not apply to the issue in the circumstances.

He argued that Order 17 Rule 5 envisions a scenario where mandatory scheduling had taken place. In this case, there was no mandatory scheduling and as such, the order cannot be applied. Furthermore, he stated that the Court did not specify under what law or order the Application was dismissed.

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### Decision of Court

I will start by addressing the objection raised by Counsel for the Respondent who argued that Civil Revision Cause No.10 of 2021 was dismissed for abatement under Order 17 Rule 5 of the Civil Procedure Rules and as such the only remedy available is to institute a fresh suit and not apply for reinstatement. The said order 17 rule 5 of the Civil Procedure Rule states;

"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 the view to proceeding with the suit after the mandatory scheduling conference, the suit shall automatically abate; and - (2) Where a suit abates under subrule (1) of this rule, the plaintiff may, subject to the *law of limitation bring a fresh suit.*" (Emphasis is mine)

Respectfully, I disagree with the submission of Counsel for the Respondent. Firstly, I have failed to find it anyway on the court record where the trial Judge stated the law under which he dismissed Revision Cause No.10 of 2021. Secondly, a perusal of Order 17 Rule 5 of the CPR implies that the time period of 6 months starts to run at the point when the mandatory scheduling has been completed. See Musa Nsiimbe V Sentongo Kirizestom Miscellaneous Application No.904 of 2021. On the record, I am unable to find any indication that mandatory scheduling ever took place. As a result, the court could not dismiss the suit under Order 17 rule 5 of the Civil Procedure Rules. I therefore find no merit in this point of law raised.

Moving on to the Application before this court, it should be noted that reinstatement of a suit is provided for under Order 9 Rule 18 of the Civil Procedure Rules which states;

"Where a suit is dismissed under rule 16 or 17 of this Order, the plaintiff may, subject to the law of limitation, bring a fresh suit or 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 his or her not paying the court fee and charges, if any, required within the time fixed before the issue of the summons or for his or her non-appearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

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The applicant's main reason for not appearing in court was that he was never served with a hearing notice. He also stated that the file went missing several times and as a result it was hard for him to know when the matter had been fixed for hearing. Unfortunately, the Applicant has not adduced any evidence to prove not only that the file went missing but also the fact that he made any effort to trace for the said file. The court is therefore constrained to rely on the Applicant's claims that have not been backed up by any sort of evidence. Satisfying the court that there is sufficient cause puts the onus on the Applicant to come up with a reasonable and justifiable excuse backed up by credible evidence that can then be relied on by the court to reinstate proceedings. Otherwise, the court runs a risk of promoting sluggish and inept behaviour amongst litigants and counsel which will create injustice in the end.

Therefore, this court finds that the failure by the Applicant to adduce evidence that proves the inadvertent misplacement of the file leaves no option but to find that the Applicants failed to not only follow up and attend proceedings in their case but also failed to effect service of summons on the Respondents. Justice Kavuma in Siraji Kimuli V Stanbic Bank Civil Appeal No.23 of 2009 relied on the decision in Continental Bank of Kenya Ltd V Mukunya [2003] 1 EA 209 where the court discussed the failure serve summons;

"The effect of failure to serve process upon the party affected thereby has been considered in several cases. In Graig V Kanseen (1943) 1 all ER 108 the Court of Appeal in England stated:

The failure to serve summons upon which the order in the present case was made was not a mere irregularity, but a defect which made the order a nullity, and therefore, the order must be set aside.'

Therefore, the Applicants have failed to present a sufficient cause warranting the reinstatement of Civil Revision Cause No.10 of 2021. This Application is therefore dismissed with costs to the Respondent.

I so order

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## FARIDAH SHAMILAH BUKIRWA NTAMBI

JUDGE<br>Delivered on this day of 2024 **JUDGE**

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