Mutebi v National Environment Management Authority and 3 Others (Miscellaneous Application 319 of 2022) [2024] UGHCCD 189 (8 November 2024)

## **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

## **MISCELLANEOUS APPLICATION No. 0319 OF 2022**

## **(ARISING FROM CIVIL SUIT NO. 46 OF 2021)**

**MUTEBI NICHOLAS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## **1. NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY**

- **2. KAMPALA CAPITAL CITY AUTHORITY** - **3. NANYONJO GORRET** - **4. JUSIME ENTERPRISES LTD::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON: JUSTICE SSEKAANA MUSA**

## **RULING**

The Applicant brought this application under Order 52 r.1 & 2 of the Civil Procedure Rules, S. I. 71 -1 (CPR); Section 98 of the Civil Procedure Act (Cap.71) (CPA) and Section 33 of the Judicature Act for orders that;

- *1. The dismissal order in Misc. Cause No. 46 of 2022 be set aside.* - *2. The applicant Misc. Cause No. 46 be re-instated and be heard on merit.* - *3. Costs of this Application be provided for.*

The grounds for the application are elaborated in detail within the applicant's supporting affidavit, and they can be summarized as follows:

- 1. The Applicant filed Miscellaneous Cause No. 46 of 2021, which was dismissed for want of prosecution. - 2. On May 11, 2022, Advocate Mayanja was holding brief for Counsel Allan Mulindwa, who was in personal conduct of the matter but was sick and indisposed on the day the matter was called. - 3. On the same day, Advocate Mayanja arrived at court at 9:30 a.m. and inquired from the clerk about the Judge's arrival, who indicated that the Judge had not yet arrived but was expected shortly. - 4. Mayanja then left the courtroom to check on another pending matter, only to return and find that the Judge had arrived and dismissed the matter for want of prosecution in his absence. - 5. The applicant asserts that the mistake of counsel should not be visited upon an innocent litigant who still has a right to a fair hearing. - 6. The applicant contends, as an advocate, Mayanja knows that a matter cannot be dismissed for want of prosecution when pleadings are complete. - 7. The applicant humbly prays that Miscellaneous Cause No. 46 of 2021 be reinstated and heard on its merits. - 8. The applicant seeks to file submissions in the main suit within seven days once the matter is reinstated. - 9. The applicant argues that it is just and equitable that the application be granted.

In reply, the 2 nd respondent, David Oyo, filed an affidavit in reply, stating that:

- 1. The present application is irregular, incompetent, and an abuse of court process as it seeks reinstatement of the suit where only an appeal is permitted or the commencement of a fresh suit subject to the limitation period. - 2. The applicant is required to attend court and was negligent in failing to do so in person on May 5, 2022, when the suit was called for hearing. - 3. The applicant's failure to consistently keep track of the progress of the case is evidence of disinterest.

- 4. The applicant has been dilatory in making this application, which was filed one year and five months after the main suit was dismissed. - 5. Reinstating the suit will prejudice the respondent by subjecting it to an unnecessary lengthy court process and litigation costs, particularly given the applicant's exhibited disinterest.

Furthermore, the 3rd respondent, Nanyonjo Gorreti, a shareholder/director of the 4th respondent, filed a second affidavit in reply, stating:

- 1. The application is grossly misconceived, frivolous, vexatious, and devoid of merit due to its reliance on falsehoods, constituting an abuse of court process that should be struck out with costs to the 3rd and 4th Respondents. - 2. Courts in Uganda commence business at 9:00 a.m.; thus, arriving at 9:30 a.m. indicates lateness, suggesting the applicant's unwillingness to prosecute the case. - 3. The deponent's actions reflect negligence, including leaving the courtroom and failing to cite a file number for the pending matter checked. - 4. The court possesses the authority to dismiss any matter when both the party and counsel are absent, either on the court's own volition or upon a motion by the opposing party. - 5. The contents of paragraph 8 of the applicant's supporting affidavit are irrelevant and devoid of merit. - 6. The application lacks sufficient cause to warrant the court granting the requested prayers, and it is in the interest of justice that it be dismissed with costs to the 3rd and 4th respondents.

## **The main issue for determination is as follows:**

*Whether there is sufficient cause to warrant the reinstatement of Miscellaneous Cause No. 46 of 2022.*

The applicant was represented by *Counsel Allan Mulindwa* while the 1st respondent was represented by *Counsel Omak Carol* holding brief for *Counsel Naigaga*, the 2nd respondent was represented by *Counsel David Oyo* and the 3 rd and 4th respondents where represented by *Counsel Abaine Jonathan*

The parties complied with court directives to file written submissions, which I have reviewed and carefully considered.

## **Determination.**

# *Whether there was sufficient cause shown by the applicant to warrant reinstatement of the suit, Misc. Cause No. 46 of 2021.*

Counsel for the Applicant argued that the court's authority to set aside and reinstate a dismissed application was undisputed. This authority, as submitted, arises under **Section 98 of the Civil Procedure Act Cap 71,** empowering courts to issue necessary orders to ensure justice, and under Order 9, Rule 23 of the Civil Procedure Rules S. I 71-1, which allows courts to overturn a dismissal if sufficient cause is demonstrated.

To clarify "sufficient cause," counsel referenced *Banco Arabe Espanol vs. Bank of Uganda, SCCA No. 8 of 1998,* and cited *National Insurance Corporation v Mugenyi & Company Advocates HCB 28*, where guiding principles for reinstatement were outlined. These principles include the applicant's demonstration of genuine intent to attend, the nature of the case, and the notion that a litigant should not be penalized for counsel's errors.

Counsel emphasized that Paragraph 4 of the supporting affidavit demonstrated counsel's efforts to attend court. It stated that *Counsel Ahmed Mayanja arrived at 9:30 am* and was informed by the clerk that the judge had not yet arrived. Counsel briefly left to attend to another matter, and upon returning, discovered the case had been dismissed. The Applicant's counsel argued that this absence was attributable to counsel, not the litigant. Citing *Banco Arabe Espanol vs. Bank of Uganda, SCCA No. 8 of 1999.*

Counsel argued that this mistake constitutes sufficient cause for the judge to exercise discretion and reinstate the case.

Further, counsel contended that a diligent applicant should not be penalized for counsel's actions, over which they have limited control. Paragraph 5 of the supporting affidavit indicated the applicant's temporary absence to attend another matter, leading to dismissal in his absence, which the Applicant attributes to a mistake by counsel.

Counsel raised the question of whether oversight, error, or negligence by counsel could qualify as sufficient cause for discretionary relief. Generally, counsel argued, parties should not suffer for their counsel's mistakes. This argument was supported by *AG vs. AKM Lutaaya, SCCA No. 12 of 2007*, where Katureebe, JSC, held that litigants' interests should not be prejudiced by counsel's errors. *Godfrey Mageze & Brian Mbazira vs. Sudhir Ruparelia SCC Application No. 10 of 2002* was also cited, where Karokora, JSC, emphasized that litigants should not be penalized for their counsel's mistakes, as it could lead to denial of justice.

Finally, counsel for the Applicant argued that based on the affidavit evidence, the trial judge had adequate information to consider the application even without the presence of both parties. Citing **Order 17, Rule 4 of the Civil Procedure Rules**, counsel suggested that the judge could have made a decision on the affidavit evidence alone.

*Counsel for the 2nd Respondent* submitted that Misc. Cause No. 46 of 2021 was dismissed for want of prosecution on 5th May 2022. Counsel argued that the law provides only two options for recourse after such dismissal: filing an appeal or commencing a fresh action, subject to the applicable limitation period. To support this argument, counsel cited *Gold Beverages (U) Limited vs. Muhangura Kenneth, Segonga Godwin T/A Platinum Associates; Miscellaneous Application No. 674 of 2019*, where Justice Bashalja K. Andrew held, *"*The dismissal for want of prosecution seals the matter, and recourse can only be had by the plaintiff to an appeal or commencement of a fresh action subject to the limitation period imposed by law*."*

Counsel further cited *Eunice Busingye vs. Kampala Capital City Authority, Misc. Application No. 1129 of 2022*, where Justice Nassuna Flavia Matovu relied on **the Gold Beverages** case to dismiss a similar application for reinstatement.

Counsel for the 3rd and 4th Respondents argued that the applicant did not demonstrate a genuine intention to attend the hearing, as he failed to appear in court in person or produce his National Identity Card to affirm his interest in the case. Counsel submitted that the applicant's absence indicated a lack of interest in the proceedings, warranting dismissal of the application.

Counsel for the 3rd and 4th Respondents contended that the applicant was attempting to reinstate a public interest case, which was improperly brought before the court. They argued that reinstating such a case would be a waste of the court's time and should therefore be declined.

Counsel for the 3 rd and 4th Respondents submitted that courts should not indefinitely postpone cases for litigants who are not prepared to prosecute them. Referring to their affidavit in reply, they noted that both the applicant and his counsel arrived late on the hearing date, then proceeded to attend to other matters instead of remaining in court to await the presiding judge or request an adjournment. Counsel argued that this conduct demonstrated a lack of diligence and constituted sufficient cause to dismiss the application with costs.

## *Analysis*

The principle of reinstatement for dismissed suits is essential within Uganda's civil procedure framework, as it underpins access to justice by allowing dismissed cases to be reconsidered when procedural oversights have occurred.

**Section 98 of the Civil Procedure Act, Cap 282**, empowers the High Court with the inherent discretion to dismiss or reinstate cases as justice demands. This section thus forms the foundation for reinstatement, providing the

court with the flexibility to rectify dismissals that may have been procedurally correct but substantively unjust. The discretion vested in the court reinforces its role in balancing judicial efficiency with the protection of litigants' rights.

The case of *Agnes Nanfuka Kalyango & Others v. Attorney General & Masaka District Administration***,** *C. A. C. A. No. 64 of 2000***,** outlined three instances in which a court may exercise its inherent powers to dismiss a suit for want of prosecution. The court noted that dismissal is warranted when there is (1) an excessive delay in prosecuting the case, (2) the delay remains unjustified even if credible excuses are presented, and (3) the delay is likely to severely prejudice the defendant. The court must also consider whether the balance of justice supports dismissal.

In *Sekyaya Sebugulu v. Daniel Katunda [1979] HCB 46*, the court held that a plaintiff, upon dismissal of a suit due to lack of prosecution, has two options: to appeal the dismissal or to initiate a new suit, provided that it aligns with applicable limitation laws. This ruling emphasizes the procedural safeguards that exist even after a case is dismissed for inactivity, ensuring that plaintiffs retain some recourse.

**Order 9 Rule 23** of the Civil Procedure Rules sets out specific conditions for reinstatement, particularly in cases of nonappearance. Under rule 22, if a suit is dismissed due to a plaintiff's failure to appear, they are barred from filing a new suit on the same cause of action. However, they may apply for reinstatement if they can demonstrate "sufficient cause" for their absence. This rule serves to prevent the misuse of judicial resources by deterring repeated filings of dismissed suits. Nonetheless, it also provides a pathway for plaintiffs to apply for reinstatement, given a compelling justification.

The interpretation of "**sufficient cause**" is elaborated in several landmark cases. 'Sufficient cause' entails a convincing reason that justifies a plaintiff's failure to appear in court, placing the burden of proof on the plaintiff. When this burden is met, the court may grant reinstatement subject to conditions, such as cost penalties or other measures deemed fair by the court. This provision exemplifies the court's discretion to reconcile procedural mandates with the need for equitable outcomes.

In *Banco Arabe Espanol v. Bank of Uganda* **(SCCA No. 8 of 1998**), the Supreme Court emphasized that sufficient cause must be assessed based on the facts of each case. The court recognized that legal counsel's mistakes, such as a misinterpretation of a court order or a financial guarantee, may constitute sufficient cause. This stance reinforces the idea that litigants should not be unduly penalized for errors made by their lawyers, as doing so would unjustly curtail their access to justice.

Further, in *National Insurance Corporation v. Mugenyi & Company Advocates* **(Civil Appeal No. 14 of 1984)**, the court highlighted additional factors to be considered in reinstatement applications. These include the applicant's genuine intent to attend or continue with the hearing and the complexity of the case. The court acknowledged that procedural barriers or unforeseen delays, when beyond the applicant's control, may also constitute sufficient cause. By accounting for such uncontrollable factors, the court aims to avoid unfairly penalizing parties for events outside their influence, thereby aligning with principles of substantive justice.

In contrast, cases of unsuccessful reinstatement applications underscore the court's adherence to procedural standards**.** *In Patrick Senyondwa & Another v. Lucy Nakitto (Misc. Application No.1103 of 2018)***,** the court declined to reinstate the suit due to the applicant's failure to meet procedural requirements—specifically, neglecting to file a timely response without obtaining leave from the court. This decision demonstrates that sufficient cause must be clearly established, and that procedural compliance remains a key consideration in reinstatement decisions.

In the instant case, the applicant attributes their absence to counsel's brief departure from the courtroom. The reason advanced for counsel's absence is unbelievable since the concerned counsel should have approached the bench at that particular moment since it was on the same day. The respondent counsel us giving wrong dates for the dismissal of the suit.

The applicant quites the date of dismissal as 11th May 2022 whereas the date of dismissal of this suit was 5th May 2022. This implies that the applicant's counsel was no where near the court on the day the matter came up for hearing. The Order of dismissal which is attached to the application clearly shows that actual dates as being 5th May 2022.

The courts are choking on backlog and the courts are no longer as lenient as they used to be 20 or 30 years ago on timelines set by court to expedite the disposal. When a party has secured a date for hearing, he has a duty to ensure that he attends court promptly to prosecute their matter otherwise, the courts valuable time would be wasted. The court had earlier given directions on filing submissions which the applicant's counsel failed to file as directed. The applicant has not given any sufficient cause for failure to file submissions as directed which would be the prosecution of the matter as envisaged under the civil rules. In the case of *Revici v Prentice Hall Incorporated [1969] 1 WLR 1 157 at 159, 160 Lord Denning M. R* said:

*"Nowadays, we regard time very differently from the way we did in the 19th century. We insist on the rules as time is being observed. We have had occasion recently to dismiss cases for want of prosecution, where people have not kept the rules of time…"*

Many a litigants and their counsel have taken the rules of procedure lightly, and ignored them altogether as if the rules were made in vain and without proper purpose. Rules of procedure setting time limits are important in the administration of justice, they are meant to prevent delay by keeping the wheels of justice rolling smoothly. If this were not so, parties would initiate action in court and thereafter go to sleep, only to wake up at their own appointed time to continue with such litigation at their pleasure. If this were allowed, litigation would grind to a halt, a sure recipe for confusion and inordinate delay in the due and proper administration of justice. See *Oppong v Attorney General & Others [2000] SCGLR 275*

The applicant's counsel has failed to show sufficient cause for non attendance of court on the day the matter was fixed and has equally failed to avail any reason for failure to file submissions in time.

This application fails and is dismissed with costs to the respondents.

**I so Order.**

*Ssekaana Musa Judge 8 th November 2024*