Mudoma v Wagabyalire (Miscellaneous Application 87 of 2024) [2024] UGHC 764 (21 August 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE **MISCELLANEOUS APPLICATION NO.87 OF 2024** (ARISING FROM MISC. APPLICATION NO.11 OF 2024)

# (ALL ARISING FROM CIVIL SUIT NO.43 of 2023)

# HIS ROYAL HIGHNESS JUDE MIIKE MUDOMA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**:::::::::::::::: RESPONDENT** JOHN AMRAM WAGABYALIRE ::::::::::::::::::::::::

#### BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

# 1. Introduction

- 2. This application was brought by way of notice of motion under Order 44 Rule 1 (2), (3) & (4) of the Civil Procedure Rules S1 71-1 for orders that- the Applicant be granted leave to appeal against the ruling of this court which was delivered on 15th May 2024 in Misc. Application No.11 of 2024 and costs of this application be provided for. - 3. This application was supported by the affidavit of the Applicant, which has been relied upon in the determination of this matter and briefly states thata. He was served with summons to file a defence in Civil Suit No.43 of 2023 on 19th August 2023; - b. He filed his written statement of defence on 1st September 2023, and the same was endorsed on 19th September 2023 and service was effected on the Respondent herein on 28th September 2023; - c. The Respondent extracted summons for directions on 8th November 2023; - d. He subsequently filed Misc. Application No.11 of 2024 seeking this court to abate Civil Suit No.43 of 2023 for failure to extract summons for directions within 28 days;

e. On 15th May 2024, this court delivered a ruling wherein he enlarged time within which to extract summons for directions and validated the summons for directions that was extracted after 28 days from the last reply;

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- f. He has carefully and meticulously read the said ruling with the guidance of his lawyers and he believes that the law cited by this court while enlarging time within which to extract summons for directions is not applicable in the circumstances; - g. The law that provides for extraction of summons for directions within 28 days of the last reply does not provide for validation of a belatedly extracted summons for directions; - h. He is dissatisfied with the ruling of this court and for which he is seeking leave of court to appeal against the said ruling; - i. He has no automatic right of appeal against the ruling and orders of this court but must first seek leave of this court to appeal. - 4. This application was opposed by the affidavit of the Respondent which has been relied upon in the determination of this application but briefly states that - a. On 14th August 2023, he filed Civil Suit No.43 of 2023, for among others, a declaration that he is the duly elected Umukuuka ll of Inzu Ya Masaaba cultural institution; - b. Summons to file a defence in the aforementioned suit were served upon the Applicant on 19th August 2023; - c. A defence was accordingly lodged by the Applicant on 19th September 2023 and served upon his previous advocates, M/s Katongole & Co. Advocates, on 28th September 2023; - d. On 8th November 2023, his previous advocates extracted Summons for Directions in the aforesaid suit and served upon the Applicant on 13th November 2023;

- e. The Applicant subsequently filed Miscellaneous Application No.011 of 2024 for abatement of Civil Suit No.43 of 2023 for failure to extract summons for directions within 20 days; - f. The 2nd Defendant in Civil Suit No.43 of 2023 (Attorney General) failed to file its Written Statement of Detence within the stipulated time frame and on 27th September 2023, they filed Miscellaneous Application No.311 of 2023 for the enlargement of time within which to file their written statement of defence which was scheduled for 18th December 2023; - g. In the desire to expedite the hearing of the main suit, he advised his advocates to consent to the filing of the 2nd Defendant's Written Statement of defence out of time; - h. As a matter of fact, his advocates in the spirit of good faith, signed a consent and the same was pending presentation before the trial court on 18th December 2023; - i. They had never appeared before the trial court to present the said consent for endorsement and as a matter of fact, the 2nd Defendant's Written Statement of Defence was not officially on record and pleadings had not yet closed because the said paramount step of admitting the 2nd Applicant's Written Statement of Defence out of time had not yet been undertaken; - i. The computation of the time lines within which to extract the summons for directions hadn't began to run yet since the 2nd Defendant's Written Statement of Defence was not yet formally on record as required within the law since parties cannot on their own consent to permit a Defendant's statement of defence without court granting leave; - k. While awaiting to present the consent on 18th December 2023, the 2nd Defendant on 8th November 2023 communicated the fact of the execution of the consent to the Deputy Registrar of the High Court and erroneously opted to withdraw the said Miscellaneous Application No.311 of 2011; - 1. It was on the said date when the court obtained the notice of the consent that the timelines would, if at all, start to run since that would amount to the final pleading from the Defendants;

- m. On the same day, 8th November 2023 when the court took cognizance of the consent between the 2nd Defendant and himself, it issued summons for directions for service upon the respective parties; - n. This court therefore issued summons for directions on 8th November after the last pleading had been received officially on the record, which was the 2nd Defendant's Written Statement of Defence; - o. It is therefore not true that his advocates failed to comply with the requirement to take out summons for directions within the required period; - p. The purpose for penalizing persons for the omission to extract summons for directions is to avoid unnecessary delay and expedite matters; - q. The suit has not delayed in any way because the same was filed on 14th August 2023 and his advocates immediately took initiative to effect service upon the Defendants in the main suit, any intensions to expedite the same were hampered by the 2nd Defendant's failure to file their defence on time and subsequently apply for the enlargement of time under Miscellaneous Application No.311 of 2023; - r. However, in the spirit of expediting the matter, he instructed his advocates to consent to late filing so that the trial can commence; - s. At every interval when the matter was called, his advocates prayed for the issuance of directions mostly because of the sensitivity of the matter. As a matter of fact, when the main suit file was referred for trial, and his advocates immediately applied for the nearest hearing date and sought the indulgence of the court to issue schedules for the commencement of the trial; - He has therefore not been indolent or dilatory in the pursuit of this matter. t. It would thus be unjust if the main suit is dismissed on a minor technicality; - u. He is a lay person and not knowledgeable in the law and the procedures of the court and should therefore not be condemned or denied right to be heard on account of omissions by his advocates;

- v. The provisions of Order 11A of the Civil Procedure Rules have been interpreted as not being mandatory and therefore do not exclude the court from exercising its inherent powers to make an order that it deems fit in the interests of justice; - w. The last reply in Civil Suit No.43 of 2023 was the Written Statement of Defence of the 2nd Defendant (Attorney General) which was formally received on the Court record on 8th November 2023 upon admitting the consent between the Attorney General and the Applicant; - x. Civil Suit No.43 of 2023 is one of great public concern because the entire Bamasaaba community is keenly interested and following closely; - y. The disgruntlement is vivid within the community and individuals are divided/disunited which bears heavily on the existence of the Bamasaaba cultural institution; - z. As an individual, he shall not relent until their cause is heard and they are accorded justice; - aa. He has a very good case on the merits since he is also entitled under the Constitution to be heard in a proper, free and fair trial. - 5. This application was also supported by the affidavit in rejoinder of the Applicant which has been relied upon in the determination of this matter and briefly states that - a. The outcomes of Civil suit No.43 will be fatal for to his collaboration with the state because he was gazzated, enthroned and therefore the suit stands dismissed for lack of proper reference as mandated by the law in this case, the Institution of Traditional or Cultural Leaders Act; - b. As a matter of fact the suit abated when the Respondent failed to extract summons for directions within 28 days from the date of last filing and also mediation summaries have not been filed and served. In such circumstances, court cannot validate belatedly extracted summons for direction or enlarge the time since it is contrary to the provisions of the law;

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- c. Civil Suit No 43 of 2023 collapsed sideways both for noncompliance to the law relating to extraction of summons for directions and filing mediation summaries; - d. There is no such a thing as a suit being of great public concern, it is just a few political masqueraders including the Respondent himself; - e. Civil suit No.43 is frivolous and vexatious for the same was filed without a reference to court for determination on the failed question of law hence bad in law; - f. Counsel in personal conduct in the matter and with full instructions to represent the litigant cannot claim his own mistakes not to be vested on his client, advocates are due to bound to diligently and professionally prosecute matters on behalf of their clients, whereas it is as he has stated in the present circumstances, it is quite reasonable that counsel alleging his own mistakes should pay costs to the applicants; - g. The Respondent has already caused him great financial loss which is unbecoming for him to state that he will not suffer any injustice if this application is denied; - h. The right of appeal is one of the remedies for an affected party and it is in the interest of justice that leave is granted to me to appeal the ruling and order in Misc. Appl. No. 11 of 2024 arising from Civil Suit No.43 of 2023.

# 6. Legal representation

7. Counsel Nangulu Eddie appeared for the Respondent while the Applicant was represented by counsel Massa Joseph and Wesile Yonah.

# 8. Submissions

9. At the hearing of this application, counsel for both parties were given schedules to file their respective written submissions. I will consider them in the determination of this application.

#### 10. **Analysis of court**

- This court framed the following issue for determination of this application 11. to wit- - (a) Whether this application discloses any grounds to warrant leave to appeal? It is important to note that there is no inherent right of appeal since the 12. right to appeal is a creature of statute and therefore the appellant should show court that his or her right of appeal is expressly provided for in a given statute. (See Supreme Court decision in Baku Rraphae Vs Attorney General

## SCCA NO.1 OF 2005)

- In Lukwago Vs Attorney General SCCA NO.6 OF 2014 it was stated that-13. "The right to appeal must thus be provided for by the law and any party seeking to invoke it must comply with all the stipulations therein." - It is a cardinal requirement of the law that an aggrieved party to a civil $14.$ action may only appeal without leave in cases which are specifically provided for under section 76 of the Civil Procedure Act 282 and Order 44 Rule 1 of the Civil Procedure Rules but in all other cases like the instant one, leave must be sought and granted by court before appeal is tabled in the appellate court. - In Sango Bay Estate V. Dresdner Bank & Attorney General [1971] EA 15. **17** Spry V. P stated that-

"As I understand it, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are *grounds of appeal which merit serious judicial consideration....*"

- (Also see: Alley Route LTD Vs Uganda Development Bank LTD HCMA 16. NO.634 of 2006 [2007] UGCommC 8 (31 January 2007) - 17. Further in Fida Birabwa Vs Suleiman Tigawalana HCCA NO.27 OF 1992, court stated that-

"A substantial miscarriage of justice is said to occur where there has been misdirection by the trial court on facts relating to the evidence given where there has been unfairness in the conduct of the trial." (The underline is for emphasis)

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In view of the above, this court is only under duty to grant leave in this 18. matter after being convinced that there are serious issues that warrant judicial consideration in the intended appeal or that the decision of this court which the Applicant intends to appeal from caused any miscarriage of justice.

- The Applicant at paragraphs 4, 5 and 6 of the affidavit in support and 19. submissions states that; the Respondent extracted summons for directions on 8th November 2023 out of time which is the basis upon which he subsequently filed Misc. Application No.11 of 2024 seeking court to abate Civil Suit Number 43 of 2023 for failure to extract summons for directions within 28 days filed on 15th May 2024. This court determined the said application and delivered the ruling therein. In its ruling, it enlarged time within which to extract summons for directions and validated the summons for directions that were extracted after 28 days from the last reply. - The Applicant further in paragraphs 8 and 9 of the affidavit in support and 20. submissions stated that the law which provides for extraction of summons for directions within 28 days of the last reply does not provide for validation of a belatedly extracted summons for directions and therefore he is dissatisfied with that ruling of this court. - In reply, the Respondent in paragraph 15 of the affidavit in reply and 21. submissions stated that it would be unjust if the main suit is dismissed on a minor technicality because he is a lay person and not knowledgeable in the law and the procedures of the court and therefore should not be condemned or denied his right to be heard on account of omissions by his advocates. - In rejoinder, the Applicant under paragraph 15 stated that Civil Suit No 22. 43 of 2023 collapsed sideways both for noncompliance to the law relating to extraction of summons for directions and therefore wasn't curable even by court. - Article 126 (2) (c) of the Constitution of the Republic of Uganda provides 23. that-

"In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles-

substantive justice shall be administered without undue regard to

technicalities."

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Section 37 of the Judicature Act Cap 16 provides that-24.

> "The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings *concerning any of those matters avoided.*"

Section 98 of the Civil Procedure Act Cap 282 provides that-25.

> "Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary *for the ends of justice or to prevent abuse of the process of the court."*

26. Section 96 of the Civil Procedure Act (Supra) provides that-

> "Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge that period, even though the period *originally fixed or granted may have expired."*

In Busonya Jamada and others V. Daudi Giruli Supreme Court Civil 27. **Appeal No.11 Of 2017**, found that strict adherence to Rules 8 and 9 of the Commissioner of Oaths Rules was not applicable because it would not serve the ends of justice. It was held that-

> "Constitutional directive enacted in Article 126 of the Constitution provides that the courts should administer substantive justice without undue regard to technicalities. Rules of procedure should be used as *handmaidens of justice but not to defeat it."*

Further still, it is trite that where a case has been presented in the court 28. beyond the time stipulated by the law, the applicant has to explain to the court as to what was the "sufficient cause" which prevented him to approach the court within time. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay.

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- In the instant case, the Respondent under Misc. Application No.11 of 2024 29. indicated that he was prevented from taking out summons for direction within time due to late filing of the written statement of defence by the 2nd Applicant (Attorney General). Although in the said application court found that was a misinterpretation of the law, it is a justifiable cause. - In Basawaraj and Anor V. Special Land Acquisition Officer Supreme 30. Court of India Civil Appeal No. 6974 of 2013, It was held that-

"A liberal interpretation to ensure that substantial justice is done is applied, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible..."

## 31. Halsbury's Laws of England, Vol. 24, p. 181:

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"330. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence".

- In the present case, just like I indicated in my ruling under Misc. 32. Application No.11 of 2024, the purpose of Order 11A rule 2 of the Civil Procedure Rules was to cure the first two problems pointed out by the halsbury's Laws of England above which had contributed to the high levels of backlogged cases in the courts of judicature. - Contrary to the above, the Respondent in this case right from the point of 33. institution of Civil Suit No. 43 of 2023, he has been diligent in pursuing his matter which is impliedly the import of Order 11A rule 2.

- Therefore, this court in the exercise of its discretion, applied the liberal 34. interpretation elaborated in Basawaraj and Anor V. Special Land **Acquisition Officer (Supra)** to ensure that substantive justice is done. - It is further worth of note that section 96 of the Civil Procedure Act allows 35. this court to enlarge time even though the period originally fixed or granted may have expired. The Civil Procedures Rules the Applicant has relayed on are subsidiary to the Principal Act (CPA) which means in case of any conflict between the two, the Principal Act prevails. (See: Mulindwa George William

## V. Kisubika Joseph Supreme Court Civil Appeal NO.12 OF 2014:)

- There is therefore no sufficient ground raised by the Applicant requiring 36. the grant of this application or injustice occasioned to the Applicant since the said orders were given for purposes of ensuring that Civil Suit No. 43 of 2023 is heard on its merits than dismissing it on mere technicalities. - I believe this application was brought in bad faith and intended to prolong 37. the hearing of civil suit No.43 of 2023. It is accordingly dismissed. - The hearing of civil suit No. 43 of 2023 shall commence on 12th of 38. September, 2024 since the same is already fixed for hearing on that date. - Costs of this application are awarded to the Respondents. 39.

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I so order. 40.

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LUBEGA FAROUO JUDGE

Ruling delivered via email of the parties this 21st August 2024

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한 사람들은 아니라 그렇게 늘어나라면 하나라고 하나 나는 사람들이 있다.