Mugubi and 3 Others v Tumhimbise and 34 Others (Miscellaneous Application No. 537 of 2022) [2022] UGHCLD 234 (16 December 2022)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DTVTSTON)

## MISCELLEANEOUS APPLICATION NO. 537 OF 2022

# ARISING FROM MISCELLANEOUS APPLICATION NO. 1687 OF 2022

## ARISING FROM HCCS. NO. 2836 OF 2015

### 1. MUGUBI FRED

- 2. MUSANWFU MUSOKE JOHN - 3. MUSAMBI MOSES SUNDAY

4. TEKITYA CHRISTINE ELTZABETH APPLICANTS

#### VERSUS

TUMUHIMBISE GODIUS & 34 OTHERS RESPONDENTS

# BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVTI

#### RULING.

# Introduction:

- 1. This application was brought under the provisions of Article 126 (2) e of the Constitution of the Republic of Uganda, S. 82 and 98 of the Civil Procedure Act, O. 46 rr 1 &2(a) and O. 52 rr1 &3 of the Civil Procedure Rules, plus S. 33 of the Judicature Act. - 2. It was seeking for orders that;

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- a. Court reviews its dismissal orders in HCCS No. 2836 of 20t5; - b. HCCS. No. 2836 of 2015 be reinstated to be heard and determined on its merit; - c. Court reviews its dismissal order in Miscellaneous Application No. 1687 of 2O2O; - d. Miscellaneous Application No. 7687 of 2O2O be reinstated and fixed for hearing; and - e. Costs of this application be provided for. - 3. It was brought by Notice of motion which was supported by an a-fhdavit sworn by Jemba Erisa, an attorney of the Applicants. The grounds of the application were laid in the Notice of motion and affidavit in support. Briefly the grounds were that; - a) On 9th March 202 1 HCCS. No. 2836 of 2O15 was dismissed for failure of the parties to comply with the directives of court that were issued on 8th October, for parties to file joint scheduling memorandum, tria-l bundles and witness statements within specific time lines; - b) The Applicants were prevented by sufficient cause from complying with the said directives which included mistake and omissions of their counsel; - c) There is important information which wasn't available to court or considered by court at the time of dismissing the case which information is now available;

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- d) The Applicants are aggrieved by the errors apparent on the court record pertaining to the dismissal of HCCS No. 2836 of 2015 and HCMA No. 1687 of 2O2O. - e) The said dismissal deprived the Applicants of a legal right as registered proprietors from ever repossessing parts of their land from the defendants who unlawfully dispossessed them of the said land. - 4. One Katimpa Jackson John, the 21"t Respondent filed an affidavit in reply in which he called upon the court to dismiss this application with costs. Briefly he maintained that; - a) the Applicants took no steps to prosecute HCCS. No. 2836 of 2015 and the case was rightfully dismissed on 9th March 2O2L, for want of prosecution after the parties had failed to comply with directives of court that had been issued on 8th October 202 1. - b) There is no error apparent on the face of the record and the Applicants had not demonstrated any new evidence to warrant a review.

## 5. Background

a) HCCS No. 2836 of 2015 was filed at court on 6th October 2O15. It appears no serious action was taken on the file until 28th September 2OL7, when the matter was placed before the tria-l judge for hearing. From then on, the matter was adjourned on three consecutive occasions, i.e. 22"d March 2018; 2"d July 2018; and 13th November 2018.

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- a. On 13th November 2018, the court ordered parties to file joint scheduling memorandum, trial bundles and witness statements by 22"a December 20 1 8, and the case was fixed for hearing on 7th May 2019. These directives were given in the presence of the 1"t, 2"d and 3'd Applicants together with their advocates. - b. By 7,h May 2019, none of the above directives had been complied with and on this day the case was adjourned to 2ls August 2019. - c. On 21"t August 20 19, counsel for the plaintiffs/applicants requested court for an administrative directive to issue to the LC 1 Chairman Nkokonjeru zone and DPC Kawanda to conduct an exercise to identify a-11 people on the land to give their proper identification. He was advised to get in touch with the Deputy Registrar to do this. - d. It appears no action was taken on the file for a long time and on 24th August 2O2O, the 20th defendant moved court to dismiss the case for want of prosecution. The court delivered a ruling on 8th of October 2O2O by which it gave the following directives; - Parties to file joint scheduling memorandum by 23'd October 2020; - Plaintiff to file tria-l bundtes and witness statements by 6tt' November 2O2O; - Defendants to file trial bundles and witness statements by 2Oth November 2O2O;

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e. By gttr March 2O2l when the matter came again for hearing none of the above directives had been complied with whereupon the court dismissed the case for want of prosecution.

The Applicants therefore filed the instant application seeking for the aforementioned orders.

## 6. Issue

# Whether the order of court dismissing HCCS No. 2836 of 2O15 that was passed on 9th March 2021 should be set aside.

I have carefully studied the pleadings, record of proceedings and submission of both parties and the relevant law. Both parties filed written submissions and I don't have to reproduce them here.

S. 82 of the Civil Procedure Rules provides that any person considering himself of herself aggrieved by a decree or order from which no appeal is allowed may apply for review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit. Therefore since the Applicants consider themselves to be aggrieved by the decision of court, they have locus to file the instant application.

O. 46 (1), then provides the grounds upon which an application for review may be granted, and these include;

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- discovery of new and important matter of evidence which, a-fter the exercise of due diligence was not within his or her knowledge or could not be produced by him at the time when the decree was passed or order made;

- on account of some mistake or error apparent on the face of the record or

- for any other sufficient cause.

I therefore proceed to consider whether the applicants have satisfied any of the above conditions.

# af Error apparent on the liace of the record

Under 0.46 (b) of the Civil Procedure Rules ,a decision of court can be reviewed where there is arl error apparent on the face of the record. In my view where there is such an allegation, the court is merely expected to study the court record and ascertain whether there are any obvious errors. In the case of F. X. Mubttuke as. UEB HCIIIA NO.98/2OO5, it was held that for a reuiew to succeed on the basis of erTor on the face of record, the error must be so manifest and clear that no court utould permit such an error to remain on the record.

I have carefully studied the record of proceedings in the case before me and I have established that the case was filed at court on 6th october 20 15. For a period of close to six years the plaintiff did not take any serious steps to prosecute the case. The record clearly portrays the chronologr of events as laid out in paragraph 5 above (background). The ptaintiff totally failed to abide by the timelines set

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by court. There is no error apparent on record which can be rectified by way of review. As a matter of fact, the Applicants failed to prosecute their case.

# b) Discovery ofnew evidence.

The Applicants claimed that when the matter was ca-lled on 9th March 2O2l at 9.00 am, both the main suit and application were dismissed for want of prosecution because on that day they had had a misunderstanding with their advocate and had appointed the deponent, Jemba Erisa as their attorney. However, the powers of attorney had not yet been filed on court record since they had not yet been released by URSB, and therefore could not be availed at that time. Therefore, the new evidence that the Applicants wish to rely on to review the order of court, is the fact that the Powers of Attorney which were not available then are now available.

However as already stated above, the case was dismissed for want of prosecution because the plaintiff had failed to prosecute the case. It was not dismissed because the Applicants had not filed powers of attorney. In my view any new evidence should be in regard to why the suit had not been prosecuted since 2O15 to 2O2l wher, it was dismissed and why the parties had not complied with directives of court. Certainly the case was not dismissed because the power of attorney was not on file. Indeed, there was no mention of this fact on the record. It was dismissed for want of prosecution. The order of court cannot be set aside on this ground as well.

# c) Any other suflicient cause.

Courts have overtime held that sufficient reason must relate to the inability or failure to take the particular step in time. (See Rosette Kizito as. Administrqtor General and others SCC/I No. 9/86)

Several reasons were advanced by the applicants as to why they did not comply with directives of court. I must first of all note that the afhdavit filed in support of this application is extremely argumentative and not a mere statement of plain facts. None the less, a careful study of the application plus the affidavit in support shows that the reasons advanced for non-compliance simply point to the fact that the Applicants had no trust or confidence in their advocate and did not allow him to do his professional work. The advocate properly knew the implications of failing to comply with the time lines and consequently drafted the necessary documents which were forwarded to the Applicants for any input. The Applicants kept on referring the documents back and forth to the advocate with endless corrections.

Indeed, in paragraph 26 of the application, it was stated that the Applicants' counsel informed them that it was better to file the scheduling memorandum as directed by court and then apply to amend. This was very good professional advice which the applicants neglected. In my view, the applicants also contributed to the failure to file the necessar5r documents on file and cannot put the entire blame on the advocate.

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Having engaged the advocate, they should have allowed him to do his professional work with minimal interruption.

Perusal of this file shows that from 6th October 2015 when the case was filed, to 9th March 2021 when it was dismissed, no meaningful action had been taken by the Applicants/ Plaintiffs to prosecute this case. The case appears to be a non-starter in as far as the plaintiff filed a suit against 35 people, many of whom were not properly identified /described. He only mentioned one narne e.g. Godi, Nabitaka, Mutuze, Kasule, Ali, Mpungu, Katimpa ,Bogere a.k'a. Taata Bogere, Musisi, Chandra, Mukyala Kiddu, Kigozi, to mention but a few. The defendants were def,rnitely not properly described for easy identification. He then started seeking indulgence of court to help him identify the defendants. In my view this was asking for too much from court. A plaintiff should know his defendants and be in position to identify them, the court should not do this for him. The court is only expected to effect service of court process on the identified parties. Apparently even in the current application, the Applicants still seek for leave to amend the plaint. All these are indicators that the Applicants were never ready to prosecute this case

Since the case was dismissed for want of prosecution, the Applicants are at liberty to put their house in order, identify the rightful defendants, properly describe them to court, and therea-fter institute a fresh suit, of course subject to the law of limitation.

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I have not found sufficient reason to set aside the order dismissing HCCS No. 2836 of 2015 and HCMA No.1687 of 2O2O for want of prosecution. In my view these matters were rightfully dismissed by court. This application therefore hereby fails and is accordingly dismissed with costs to the 21"t Respondent, Katimpa Jackson, John.

Dated at Kampala this .... IQ{I. Day of L\*-\*\* <sup>2022</sup>

HON. STICE FLAVIA NASSUNA MATOVT'