Margaret Kigongo and Others v Ssenyonjo Noah Nakiwafu (Misc.Application No.763 of 2021) [2024] UGHCLD 303 (24 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. APPLICATION NO.763 OF 2021 (ARISING OUT OF CIVIL SUIT NO.885 OF 2016)**

#### **1. MARGARET KIGONGO**

**2. CLAIRE NAKIMBUGGWE**

**3. KIWALAGO JAMES --------------------- APPLICANTS**

**4. WASSWA PETER**

# **VERSUS**

**1. SSENYONJO NOAH NAKIWAFU -----RESPONDENTS**

## *BEFORE: HON. JUSTICE KANYANGE SUSAN*

#### **RULING**

## **INTRODUCTION**

This Application was brought under Section 98, CPR Cap 71, 0.9 R 23, and Order 52 R 1 of the CPR seeking orders that;

- 1. The dismissal Order of CIVIL SUIT NO.885 of 2016 entered against the Applicants/Plaintiffs be set aside. - 2. CIVIL SUIT NO.885 of 2016 be reinstated and determined on its merits. - 3. Costs of the Application be provided.

**The grounds of the application are summarised in the Notice of Motion and elaborated in the affidavit sworn in support of the application by EDWIN BUSULWA but briefly, the grounds are that;**

- 1. The Applicants instituted Civil Suit No.885 of 2016 against the Respondent. - 2. Civil Suit No.885 of 2016 was fixed for hearing on the 9th day of April 2021 which date was mistakenly recorded in the diary as 19th April 2021. - 3. Consequently, Civil suit No.885 was dismissed by the court on the 9th of April 2021 for non-attendance. - 4. The Applicant's suit has merit with high chances of success if reinstated and heard on its merit. - 5. It is fair, equitable, and in the interest of justice that this Application is allowed and the case heard on its merits.

# **The application was opposed by an affidavit in reply deponed by the Respondent briefly stating that;**

1. The Applicants are no longer interested in prosecuting Civil Suit No.885 of 2016 since there is a

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similar civil suit ( Civil Suit No. 002 of 2017)in the Chief Magistrates Court of Entebbe at Entebbe between the same parties seeking the same remedies in respect of the same subject matter. The Applicants will not be prejudiced in any way.

2. The case was adjourned in the presence of Counsel Edwin Busulwa and the actions/omissions point to his negligence.

#### **LEGAL REPRESENTATION**

The Applicants were represented by **M/s Buwule & Mayiga Advocates**. The Respondent was initially represented by **M/S Ochieng Associated Advocates** and solicitors who later stated that they no longer had instructions to represent the Respondent. The Respondent did not file submissions.

#### **LEGAL ISSUE**

**Whether the application shows sufficient cause to warrant the reinstatement of Civil Suit No.885 of 2016.**

Section 98 of the Civil Procedure Act gives this court inherent powers to make such orders as may be necessary for the ends of justice. Reinstatement can be granted if

there is proof of sufficient cause which relates to the inability to take a particular step on time. **(See Isadru Vicky Vs. Perina Aroma & 6 others C. A No. 033 of 2014 & MK Financiers Vs. Natukunda Alice, Misc. Application No. 797 of 2015).**

In the case of **Tiberio Okeny & Anor VS the Attorney General and 2 ORS CA 51 of 2001** The Hon. Justice Twinomujuni gave the broad contours within which the discretion is to be exercised where he observed thus:

*"(a) First and foremost, the application must show sufficient reason related to the in ability or failure to take some particular step within the prescribed time. The general requirement notwithstanding each case must be decided on facts.*

*(b) The administration of justice normally requires that the substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights.*

*(c) While mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law.*

*Unless the Applicant was guilty of dilatory conduct in the instructions of his lawyer, errors or omissions on the part of counsel should not be visited on the litigant.*

*(e) Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirements of the law ..."*

The Hon. Justice Twinomujuni further held that *"it is only after "sufficient reason" has been advanced that a court considers, before exercising its discretion whether or not to grant the extension, the question of prejudice, or the possibility of success and such other factors ...".*

Also in the case of *Shabir Din V. Ram Parkash Anand 22 (1955) Eaca 48(Ca-K***)**. It was held that:

"*For an application to succeed a mistake by plaintiff's advocate (though negligent) may be accepted*."

The record shows that Civil Suit No.885 of 2016 was dismissed on April 9, 2021, due to non-attendance of the Plaintiffs/Applicants as per Order 9 Rule 22 of the Civil Procedure Rules. Counsel for the Applicants attributed this to a mistake in recording the hearing date in the diary, indicating April 19, 2021, instead of April 9, 2021.

Counsel for the Applicant stated that when the matter came up for hearing on the 17th day of November 2020, the matter was adjourned to 9th April 2021. Counsel for the Applicant stated that he mistakenly wrote the date as 19th April 2021 instead of 9th April 2021.

The Applicants pleaded an honest mistake of counsel in recording a wrong date and that mistake of counsel should not be visited on the Applicants. The Respondent opposed the assertion by the Applicants and stated that the case was adjourned in the presence of Counsel Edwin Busulwa and the actions/omissions of recording a wrong date point to his negligence.

Considering the principles outlined in **Tiberio Okeny & Anor VS the Attorney General and 2 ORS** (Supra), the court finds that the mistake made by the Applicants' counsel, though negligent, is accepted as sufficient cause for the dismissal of the suit. The Applicants should not bear the consequences of their counsel's error.

The Respondent in his affidavit in reply asserted that the Applicants are no longer interested in prosecuting Civil Suit No.885 of 2016 since there is a similar civil suit ( Civil Suit No. 002 of 2017) in the Chief Magistrates Court of Entebbe at Entebbe between the same parties seeking the same remedies in respect of the same subject matter.

The Applicants will not be prejudiced in any way. As regards to similarity of the two civil suits, Counsel for the Applicants stated that Civil Suit No. 002 of 2017 in the Chief Magistrates Court of Entebbe at Entebbe was filed on the 13th of January 2017 whereas the current civil suit was filed earlier on the 13th of December, 2016 therefore the Entebbe suit is not a bar to the continuation of the present one, or does not defeat the present suit because the present suit was filed earlier and the Lis Pendens Rule does not apply to it.

*Section 6* of the *Civil Procedure Act (Cap.71)* which embeds the spirit of the *lis pendens* rule. It provides as follows;

"*No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed."*

*Black's Law Dictionary (8th Ed)* defines *"lis pendens",* as a Latin expression that simply refers to Type text here

a *"pending suit or action". Section 6 CPA (supra)* outlines the principles that support the rule, This provision essentially prohibits courts from proceeding with a trial if the subject matter of the suit or proceeding is directly and substantially in issue in another suit between the same parties or parties claiming under them, and if that other suit is already pending before a court in Uganda with jurisdiction to grant the relief sought.

Section 6 does not explicitly specify which suit takes precedence if multiple suits are pending. Instead, it generally bars the court from proceeding with a trial until the issue is resolved in the previously instituted suit.

Therefore, there is no legal impediment to reinstating Civil Suit No. 885 of 2016, and the lis pendens rule does not preclude its continuation since Civil Suit No. 002 of 2017 was filed after Civil Suit No. 885 of 2016, and I also do not have all the details of civil suit no 002 of 2017.

Moreover, the application was also submitted promptly, on the 27th day of April 2021. This demonstrates the diligence of the Applicants and their commitment to pursuing Civil Suit No. 885 of 2016.

Based on the foregoing, the court finds that the Applicants have demonstrated sufficient cause for the reinstatement of Civil Suit No. 885 of 2016. The dismissal of the suit was due to an honest mistake by their counsel, and their interests should not be prejudiced as a result.

**Section 33 of the Judicature Act,** enjoins this court to grant all such remedies to enable the final determination of all matters of controversy between the parties.

Therefore, the court grants the application and orders as follows:

- 1. The dismissal order of Civil Suit No. 885 of 2016 is set aside. - 2. Civil Suit No. 885 of 2016 is reinstated and shall be determined on its merits.

3. Applicants to pay costs of this application. **DATED AT KAMPALA THIS ----------DAY OF ---------2024** 24th May

**……………………………………….**

**KANYANGE SUSAN AG JUDGE LAND DIVISION.**