Lubwana & Another v Attorney General (Miscellaneous Application 112 of 2022) [2023] UGHC 394 (2 October 2023)

# **THE REPUBLIC OF UGANDA**

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

# **MISCELLANEOUS APPLICATION NO.112 OF 2022**

# **(Arising out from Civil Suit No.53 of 2020)**

### **1. ISAAC LUBWANA WALUSIMBI**

**2. SSEGWANYI MUHAMMED:::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

### **VERSUS**

**ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This Application was brought under Order 9 Rule 22 and 23, Order 52 Rule 1 and 3 of the Civil Procedure Rules SI 71-1 as amended and Section 98 of the Civil Procedure Act Cap 71. The Applicants seek orders that;

- 1. The order dismissing Civil Suit No.53 of 2020 be set aside and Civil Suit No.53 of 2020 be reinstated. - 2. The Defendant's amended written statement of Defence and Counter claim filed in this Court on the 18th May 2022, be struck off Court record for non-compliance with Court's directives. - 3. The costs of the Application be provided for.

This Application was supported by two affidavits. One deponed by the 1st Applicant and the other by a one, Lugoloobi Hamidu. While the affidavit in reply was deponed by Maj. Fredrick Kangwamu.

Before I delve into the averments therein, I would like to note that some of the averments contained in the affidavits went to the merits or demerits of matters in issue


in the main civil suit. I shall therefore not refer to them but shall restrict myself to the averments relevant to this Application for reinstatement.

The 1st Applicant in his affidavit in support states as follows, that;

- 1. The Applicants are joint plaintiffs in HCCS. No.53 of 2020 against the Attorney General concerning trespass on the Plaintiffs' land occasioned by the Uganda Peoples' Defence Forces (UPDF) particularly, the Air Force Division for which the Respondent is liable. - 2. When the suit came up for hearing on 18th May 2022, it was dismissed for want of prosecution. - 3. The Applicants discovered on 17th May 2022 that their lawyers were not doing enough to prepare for the Applicants' case and they therefore decided to engage services of other lawyers, that is; M/S Lugoloobi Associated Advocates to take over the matter. - 4. The Applicants' previous lawyers, M/S Aisha Nansubuga and Co. Advocates informed them that their case was coming up for hearing on the 19th May 2022. - 5. When the Applicants together with their newly engaged lawyers appeared before Court on 19th May 2022, they discovered that the suit had been dismissed the previous day on 18th May 2022. - 6. On the same day, Mr. Brian Musota, lawyer for the Respondent filed an Amended Written Statement of Defence together with a counter claim on 18th May 2022 without leave of Court. - 7. The said lawyer never informed the Applicants of this fact and that the Amended Written Statement Defence and counterclaim are pending Court's seal and service on the Applicant however they were filed out of time. - 8. The Applicants are interested in the civil suit but owing to their previous lawyer's negligence, the case was dismissed.

In the affidavit of Lugoloobi Hamidu, he states as follows, that;

1. He was instructed by the Applicants to represent them in Civil Suit. No.53 of 2020 which was coming up for hearing on 19th May 2022.


- 2. On 19th May 2022, the Deponent together with his colleague Ntege Charles went to Court with the Applicants however, they later discovered that the suit had been dismissed on 18th May 2022 for want of prosecution. - 3. The Respondent's Counsel filed an amended written statement of Defence on 18th May 2022 and yet as per Court directives, the same was supposed to be filed by 3rd May 2022 and a reply to the same to be filed by 14th June 2021. - 4. Hearing notices were issued for 6th October 2021, however, the Applicants' previous lawyers never informed them of the hearing date or attended Court. - 5. He also discovered that the Applicants' previous lawyers also misled them as to the correct date of hearing.

The Deponent thereafter reiterated the 1st Applicant's averments in the affidavit in support.

An affidavit in reply was deponed by Maj. Fredrick Kangwamu wherein he states as follows, that;

- 1. The Respondent was never made aware of the fact that there was a change in lawyers and there is no evidence to support the fact that the Respondent was served with a notice of change of Advocates. - 2. There is also no evidence to support the fact that the Applicants' previous lawyers, M/S Aisha Nansubuga and Co. Advocates were ever served with a notice of change of Advocates. - 3. The Deponent and a one, Lt. Phiona Orishaba were the officers over-seeing the Civil Suit together with Brian Musota, a state attorney. - 4. The Applicants showed utmost negligence, lack of interest in the case and gross misconduct by absconding from hearings, resulting in unnecessary delays. - 5. The Applicants or their lawyers failed to enter appearance on 6th October 2021 and the matter was adjourned to 18th May 2022 however, neither the Applicants nor their lawyers entered appearance on the day. - 6. There is no evidence to support the fact that the Applicants or their new lawyers were misinformed. - 7. The Amended WSD and counterclaim have no bearing on this Application.

- 8. He was informed by lawyers in the Attorney General's Chambers that the Application was served out of time. - 9. The Application was filed on 10th June 2022 and signed by the Registrar on 26th July 2022 and served on the Attorney General on 29th August 2022.

In rejoinder, the 1st Applicant deponed as follows, that;

- 1. The Applicants appeared in Court on 19th May 2022 and not 18th May 2022 because their previous lawyers had informed them of 19th May 2022 as the hearing date. - 2. The Respondent had no locus to apply for dismissal since no Amended Written statement of defence had been filed and served at the time. - 3. On several dates, the Applicants appeared in Court even without their lawyers and this indicates that they were and are still interested in the suit. - 4. A notice of change of Advocates was duly served and that before the proceedings on 3 rd May 2021 which was attended by lawyers for both parties, a notice of change of advocates had already been filed in April 2021 and in light of the circumstances, Counsel for the Respondent ought to have been aware.

#### **Representation.**

The Applicants were represented by Mr. Charles Ntege from M/S Lugoloobi Associated Advocates while the Respondent was represented by Brian Musota, a State Attorney.

Both parties filed written submissions.

#### **Submissions for the Applicants.**

Counsel submitted that this is an Application for reinstatement of Civil Suit. No.53 of 2022 brought under Order 9.

While relying on the case of *National Insurance Corporation versus Mugenyi and Co. Advocates 1987 (HCB),* Counsel submitted that the main test for reinstatement is whether the Applicant honestly intended to attend the hearing and did his best to do so and that the Court also enquires into the nature of the suit and whether there is a prima case.

On failure to attend, Counsel submitted that it was negligence of the Applicants' previous lawyers that led to the Applicants not appearing when the matter was called and that mistake of Counsel should not visited on an innocent litigant. Counsel also relied on Sam Jakana and another versus Emmanuel Msabimana HCCS. No.428 of 2015.

On prima facie case, Counsel submitted that the Applicants have a prima facie case and the same ought to be heard and determined on its merits.

Counsel then submitted that even if sufficient cause has not been established, Court should invoke its inherent jurisdiction under Section 98 of the Civil Procedure Act and reinstate the suit. Counsel relied on the case of Girado versus Alam Sons (U) Ltd HCCS. 1966.

#### **Submissions for the Respondent.**

The Respondent raised a preliminary objection that is; the notice of motion was served out of time.

Counsel submitted that the Application was served beyond the mandatory 21 days provided for by the Civil Procedure Rules and there was never an application for extension of time and as a result, the Application is incompetent. Counsel submitted that the notice of motion was served on 29th August and yet it was lodged in Court on the 26th of July 2022. Counsel relied on the case of Stop and see (U) Ltd versus Tropical Bank, HCMA. No.333 of 2010.

On whether the suit qualifies for reinstatement, Counsel submitted that the test for reinstatement is whether the Applicants have showed sufficient cause however, the Applicants had failed to prove sufficient cause. Counsel submitted that the Applicants failed to appear for two consecutive that is 3rd May 2021 and 18th May 2022 without any clear justification and the evidence does not show that they did their best to attend.


Counsel submitted that the Applicants are relying on hearsay evidence. Counsel then submitted that there is no evidence to support the fact that the Applicants were misinformed by their previous lawyers.

Counsel further submitted that though the general rule is that negligence of counsel cannot be visited on a litigant, a litigant must be vigilant enough to follow up his case with Counsel and not sit back and hope the lawyer should conclude all the work. It was submitted that the Applicants waited until 17th May 2022 to change advocates and yet the hearing was on 18th May 2022 and this indicates lack of vigilance. Counsel concluded by stating that missing two hearing dates also illustrates lack of vigilance.

I have carefully considered the affidavits to this Application as well as the submissions for both parties. I now proceed to determine this Application.

#### **Determination of Application.**

Before delving in the merits of this Application, I shall first consider the preliminary objection raised by the Respondent that is; **the notice of motion was served out of time**. I also note that the Applicants never responded to the preliminary objection raised.

*Order 5 Rule 1(2)* of the *Civil Procedure Rules* provides that; *Service of summons issued shall be effected within twenty-one days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension.*

*(3) Where summons have been issued under this rule, and— (a) service has not been effected within twenty-one days from the date of issue; and (b) there is no application for an extension of time under subrule (2) of this rule; or (c) the application for extension of time has been dismissed,*


#### *the suit shall be dismissed without notice.*

According to the provisions above, where summons are issued and are not served with 21 days, an Applicant ought to seek Court's leave to serve the same out of time and where there has been no application for extension of time or the application for extension of time within which to serve the summons has been rejected, the suit shall be dismissed without notice. (See: *Rwabuganda versus Bitamisi, COACA. No.87 of 2010*)

*Order 49 Rule 2* of the Civil Procedure Rules provides that; *All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons.*

From Order 49 Rule 2, the rules under Order 5 also apply to Applications. (See: *The Registered Trustees of Madi West Nile Diocese versus Lucia Eyotaru and 7 others, HCMA. No.43 of 2021*)

A keen perusal of the Court record, discloses that the notice of motion was issued on 26th July 2022. The notice of motion ideally should have been served by the 25th of August 2022 but from the affidavit of service deponed by a one, Mwami Appollo dated 20th April 2023, the notice was served on the Respondent on 29th August 2022. On record, there is no formal application for an extension of time within which to serve the notice. The question this Court is left to answer is, "What then becomes the effect of serving summons (notices) or serving summons beyond the time prescribed for their service?"

As already observed earlier, under Order 5 Rule 1(3), where there has been noncompliance with requirements under Order 5, the matter **shall** be dismissed without notice. (Also see; *Rwabuganda versus Bitamisi (supra)*)

According to the authority of *National Insurance Corporation versus Mugenyi and Co. Advocates 1987 (HCB),* however, court has a duty to also inquire into the nature


of the case. This is a land matter. It is a suit in which the Respondent has been sued over trespass to land. Dismissal of this suit is most likely to occasion filing of another suit. Under S.33 of the Judicature Act Cap. 16, this court is enjoined to ensure that it does not occasion creation of a multiplicity of suits.

More also, the Respondent was directed on 3rd May 2021 to file his amended defence and counterclaim within 30days. She only filed the same almost a year later on 18th May 2022. Clearly, this Respondent who omitted to file his defence and counterclaim within the time that was prescribed by this Honourable court, had no moral and legal right to raise the instant objection on late service of the instant Application by mere 2 days.

**On the merits**; This court is satisfied that the Applicants intended to attend court but were misled by their former Advocates who misadvised them on the hearing date. This is a clear mistake of counsel which should not be visited on them.

In interest of Justice and as a trade-off, this court will allow this Application which was served out of time and also validate the Respondent's amended written statement of defence and counterclaim that were filed out of time.

In conclusion, the Application is hereby allowed with no order as to costs.

I so order.

Orders:

- 1. The Order of dismissal of Civil Suit No. 53 of 2020 is set aside and the Civil suit is re-instated. - 2. The Respondent's amended written statement of defence and counterclaim filed in this court on the 18th day of May, 2022 is hereby validated. - 3. Each party will bear its costs.

Dated and delivered electronically at Masaka this 02nd day of October, 2023.



# **Victoria Nakintu Nkwanga Katamba.**

**Judge.**