Lubega v Twaha (Miscellaneous Application 1055 of 2024) [2025] UGHCLD 8 (13 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO.1055 OF 2024 (ARISING FROM CIVIL APPEAL NO. 0154 OF 2019) (ARISING FROM CIVIL SUIT NO. 01237 OF 2015)**

**LUBEGA GEORGE ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

# **TWAHA AHMED SIRAJE ::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

### *Introduction:*

- 1. This was an application by notice of motion brought under Sections 82 and 98 of the Civil Procedure Act, Order 43 rule 6 Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The order dismissing Civil Appeal No. 0154 of 2019 on 28th March 2024 be set aside, the appeal be re-admitted and fresh scheduling dates for filling submissions be issued. - ii) The costs of this Application be in the main cause.

#### *Background;*

- 2. The Applicant filed Civil Appeal No. 0154 of 2019 and the matter came up for hearing on the 11th day of January 2024 wherein Court gave schedules to the parties to file their respective submissions. None of the parties complied and thus Court on the 28th day of March 2024 dismissed the appeal for want of prosecution. - 3. The Applicant being dissatisfied with the said order filed this application to have the same set aside and the appeal be re admitted for hearing.

#### *Applicants' Evidence;*

- 4. The grounds of the application are contained in the affidavit in support of the application deposed by **LUBEGA GEORGE** the Applicant and are briefly that: - i) That I am the appellant in Civil Appeal No. 154 of 2019 and the matter last came up on 11th January 2024 and this Honourable Court issued scheduling dates to the parties within which to file submissions. - ii) That my lawyers were supposed to file submissions by 1st February 2024, the Respondent to file his submissions by 22nd February 2024, the rejoinder by 29th February 2024

and the judgement to be delivered on the 28th March 2024 on ECCMIS.

- iii) That there was sufficient cause for failure by my lawyers to file submissions as directed by this Honourable Court because the lower Court proceedings were not yet available for my lawyers to rely on in order to write the submissions and the error by my Lawyers should not be visited on me. - iv) That a copy of the lower Court proceedings was obtained after the date within which to file the submissions had lapsed and the Respondent did not also file and serve his submissions as directed by the Honourable Court. - v) That the ruling was delivered on the 28th March, 2024 dismissing the appeal for want of prosecution under S. 98 of Civil Procedure Act Cap 71 and Section 33 of the Judicature Act Cap 13. - vi) That I am dissatisfied with the ruling and order of this Honourable Court dismissing Civil Appeal No. 0154 of 2019. Am still interested in pursuing the appeal until its final disposal and I shall suffer irreparably if this application is not granted.

## *Respondent's evidence;*

- 5. The application is opposed to by an affidavit in reply deposed by **TWAHA AHMED SIRAJE,** the respondent which briefly states as below; - i) That with the help of my lawyers of C/o Kratos Advocates, I have read and understood the contents in the application and the affidavit in support of the application and the same is full of falsehoods which should be treated with utmost scrutiny, analysis and a keen eye. - ii) That the Applicant's application is malafide and an abuse of court process as it has been brought under a wrong law and my lawyer shall raise a preliminary point of law to that effect. - iii)That the application does not raise any ground(s) sufficient for this Court to grant the orders sought by the Applicant and I pray that this Honourable Court be pleased to dismiss the same with costs in my favour. - iv) That the Applicant has been indolent in prosecuting the appeal ever since he filed the same on 9/12/2019 and its subsequent memorandum of appeal on 29/11/2019 and as such, he is using these applications to delay and or defeat ends of justice to my detriment.

- v) The Applicant was well aware on the 11th day of January 2024 when the appeal came up for hearing but chose not to update court on the status of the record of proceedings from the lower Court and this application is just an afterthought to abuse Court process, there is no overwhelming chance of success of the alleged appeal and the applicant is only trying to cast a wide net of possibilities in the hope that he would bet something by filing multiple applications to re admit the defunct appeal. - vi) That the Applicant through his lawyers of Omongole & Co. Advocates having requested for copies of the lower court proceedings through letter dated 15/11/2019 and filed at Court on 9/11/2019 never made any further steps to ensure that the same is availed to them which is a clear manifestation of wastage of court's time thus denying justice to the respondent. - vii) That the Applicant has always failed to exhibit any interest in prosecuting his appeal and to this effect on 25/03/2021 and 25/08/2021, I moved Court through my lawyers and wrote a letter to the Deputy Registrar High Court at Land

Division requesting that the Applicant's appeal be fixed for hearing.

- viii)That the respondent further rejoins that it is prima facie that the Applicant's appeal was 1st dismissed for want of prosecution on the 31/08/2021 by this Honourable Court and following the dismissal the Applicant lodged MA No. 1646 of 2021 for orders that the defunct Civil Appeal No. 154 of 2019 be reinstated among others which was granted in his favour. - ix) The Applicant as is his character and or nature after a period of approximately two years from the grant of the aforesaid application, failed to prosecute his appeal until the 28/03/2024 when it was again dismissed for want of prosecution and it is on the above basis that the applicant lodged a second application vide MA No. 1055 of 2024 for orders that the appeal be re admitted and fresh scheduling dates for filing submissions be issued. - x) The Applicant's numerous, continuous and multiple applications without action amounts to an abuse of court process, wastage of court's time and are brought in bad

faith, a programmed agenda by the Applicant to delay justice for the respondent.

- xi) There is no error attributed to the Applicant's lawyers neither the Applicant himself but rather the actions and conduct of the Applicant together with that of his lawyers exhibited a higher degree of connivance to frustrate the respondent from enjoying the fruits of his judgement in the lower Court and the actions and conduct of the Applicant. - xii) That the Application is a mere fallacy as there is no evidence of the Magistrate's certificate of correctness to show that the alleged record of proceedings was issued by the trial Magistrate on the 19/02/2024 without which is not true without a certificate of an issuing officer and the applicant ought to have written follow up letters to the lower Court further requesting for the said record but the same was never adhered to. - xiii) That upon failure to comply with the Court's scheduling dates, a vigilant and prudent Applicant would have made a formal expression before the judgement date to the Appellant Court of his in ability to file his submissions and or seek an extension within which to comply with the said directives.

#### *Representation;*

6. The Applicant was represented by counsel Mutumba Nicholas of M/s Omongole & Co. Advocates whereas the Respondent was represented by Counsel Turyamusima Geofrey and Constance Athena. The parties filed written submissions which I have considered during the determination of this Application.

#### *Issues for determination;*

## **Whether the dismissal order in Civil Appeal No. 154 of 2019 should be set aside and the appeal reinstated?**

7. Counsel for the Respondent raised a preliminary objection that the Applicant brought this application under Section 82 and Orders 43 rule 6 of the Civil Procedure Act. The said section 82 of the Civil Procedure Act is to the effect that any person considering him/herself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the Court

which passed the decree or made and the court may make such order on the decree or order as it thinks fit.

- 8. He further argued that Order 43 rule 6 and Order 9 rule 23 envisages that no such security as is mentioned in rules 4 & 5 of this order shall be required from the government or where the government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him or her in official capacity. - 9. That the said provisions do not apply in this particular case where the Applicant's prayer is to reinstate the appeal and the Applicant's application does not disclose any grounds for review and Court cannot act in a vacuum. - 10. The second preliminary objection is that the application is an abuse of Court process as it involves use of legal proceedings by the Applicant for an improper purpose and given the circumstance under which the appeal was dismissed, the Applicant ought to have brought this application under the general powers of this Court vide Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act short of which the Application is improperly brought before this Court and we pray that the same is dismissed with costs in my favour.

- 11. Both preliminary objections connote to the Applicant having filed the instant application under the wrong law for which Counsel for the Respondent seeks to have the Application dismissed. - 12. Courts prioritize the substance of a case over procedural technicalities ensuring that justice is not compromised by formal errors. - 13. Court of appeal stated that where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored and the correct law inserted. **(Saggu v Road Master Cycles (U) Ltd**

#### **[2000] EA LR 255.**

Citing the wrong laws does not prejudice an application therefore the preliminary objections are over ruled.

#### *Resolution and determination of the issue;*

**Whether the dismissal order in Civil Appeal No. 154 of 2019 should be set aside and the appeal reinstated?**

10. The power to readmit/reinstate an appeal is discretionary in nature and the same is often exercised upon sufficient cause being shown by the appellant.

- 11. Sufficient cause is defined to mean an expression which has been used in large number of statutes. That the meaning of the word sufficient is adequate or enough in as much as may be necessary to answer all purposes intended. Therefore, the word sufficient embraces no more than that which provides a platitude which when the act is done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. **(Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Anor [2017] KLR 650 and Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & Anor MA. 696 of 2018).** - 12. In the instant Application, the Applicant states under paragraph 8 of his affidavit in support of the application that he failed to comply with the timelines issued by Court because the lower Court proceedings were not yet available for his lawyers to rely on the same in order to file submissions in compliance with Court's directions and thus the error of his lawyers should not be visited on him. - 13. However, the Respondent stated in his affidavit in reply opposing the application at hand, under paragraph 6 and 7 that

the Applicant had been indolent in prosecuting the appeal ever since the same was filed on 9/12/2019. The Applicant was well aware of the said position when the matter came up for hearing on 11th January 2024 but chose not to update Court on the status of the record of proceedings from the lower Court thus this application is an afterthought to abuse Court process.

- 14. The Appeal in question was filed on 9/12/2019, dismissed for the first time on 31/08/2021 for want of prosecution and the Application filed MA No. 1646 of 2021 to have the same reinstated and the application was granted. - 15. On 11/01/2024, this Court issued timelines to the parties within which to file their respective submissions to which none of the parties complied thus the appeal was dismissed (second time) for want of prosecution on the 28th day of March 2024. - 16. The Applicant's reason for non-compliance is that he had not obtained the record of proceedings from the lower Court however, he did not adduce any evidence of persistent follow ups to obtain the record of proceedings since 2019 to date. - 17. The Court cannot condone dilatory delay in as much as the Applicant states that he had not obtained the record of proceedings since 2019, this does not do a way or rebut the fact

that he has not taken any serious steps towards prosecuting the appeal.

- 18. There is a duty imposed on Courts to ensure that the factors considered for reinstatement of dismissed matters are consonant with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of the disputes before the Court. - 19. It is not resounding that since 2019, the Applicant has never obtained the record of proceedings in order to ably prosecute his appeal. This looks like a ploy to prevent the Respondent from enjoying his fruits of judgement. Be that as it may, Equity aids the vigilant, and the Applicant was not vigilant enough whilst prosecuting his appeal. - 20. I find this application is not merited and I dismiss it with costs to the respondent.

#### **I SO ORDER.**

# **NALUZZE AISHA BATALA Ag. JUDGE. 13th/01/2025**


### *Delivered Electronically via ECCMIS on the 13th of January*