Mwesigwa and 3 Others v Mutabazi and 2 Others (Miscellaneous Application 768 of 2023) [2024] UGHCLD 141 (13 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

My asy allow $\frac{13}{5}$ $\frac{2023}{2024}$ Delivered wa mail.

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANOEUS APPLICATION NO. 0768 OF 2023

(Arising from Civil Suit No.0075 of 2016)

#### 1. PAUL MWESIGWA $\mathsf{S}$

2. MUGISHA MOSES NICHOLAS

3. MUHWEREZA JACQUELINE

4. MUTAWE PATRICK (Administrators of

the estate of the late MUTEGEKI JOHN)::::::::::::::::::::::::::::::::::::

### 10

#### **VERSUS**

1. MUTABAZI JOSEPH

2. KIRENGA FRED

3. TROPICAL BANK (U) LIMITED::::::::::::::::::::::::::::::::::::

# Before Lady Justice Alexandra Nkonge Rugadya.

#### 15

#### Ruling.

This application brought by motion under Article 126 (2) (e) of the 1995 Constitution of the Republic of Uganda, Section 33 of the Judicature Act cap. 13, Section 98 of the Civil Procedure Act cap. 71, and Order 9 rules 17 & 18, and Order 52 rules 1, 2, & 3 of the Civil Procedure Rules **SI 71-1** seeks orders that the order of this court dated $22^{nd}$ October, 2020 dismissing *Civil Suit No.* 75 of 2016 be set aside and the suit be reinstated. It also seeks orders that costs of the application be provided for.

### Grounds of the application.

The grounds upon which this application is premised are contained in the affidavit in support thereof deponed by counsel Kwemara Kafuzi, an Advocate of the High Court practicing with *m/s Rwakafuuzi* & Co. **Advocates,** the applicants' lawyers, but briefly they are that the applicants who are the children of Mutegeki John, who ordered him to recover the deceased land comprised in Kyadondo Block 243 plot 1811 (hereinafter

rekned to as the 'suit land')and that counscl then instituted citil sult No, 75oJ 2076 against the respondents seeking among others declarations that that the plaintiff is the 1awfu1, and sole proprictor of the suit land, the lst and 2"d defendants were fraudulently registered thereon, and that the defendant took no lawful interest in the samc. The applicants also sought orders for cancellation ofthe 3'd defendant's names from thc register, and restoration of the dcceascd namcs thcrcon.

That while the rcspondents Iiled thcir respective written statements of defcnce, Mutcgeki John died on Str Ju1y, 2019 before the suit was disposed of, and that upon the advice of counsel, the applicants commenced the process of obtaining the grant of letters of administration, and a certificate of no objection was issued by tl.e offrce of the Administrator General on 30tir April,2O2l vide, Admin Cause No. Olgl of 2079, and the grant of letters of administration was granted by court on 29rh March, 2022.

That the applicants then filcd Miscelraneous Appfication No. rs62 oJ 2022 sceking to substitutc thc dcccascd and that becausc cfforts to have the samc fixcd were in vain, a decision to have t-he main suit hxed for hearing was made, and a letter requesting a hearing date was written on 13th March, 2023 but after numerous follow ups, it was discovcrcd l]rat the main suit had on 22,a octobcr, 2o20 bcen dismissed for want of prosecution as the hearing of t].e 15 20

samc had been fixcd but thc applicants wcre not informcd.

That whilc at the time of the dismissal, the applicants werc sti11 in the process of obtaining the grant of letters of administration for their late father,s estate which had not yct becn issued, the applicants are now ready to prosecute the suit, thus it is not only just, but also cquitable and in the interest of justice that this application is grantcd, and thc matter is heard. on its merits, since no onc shall bc prcjudiccd.

# 2"d respondent's reolu.

The 2nd rcspondent opposcd thc application through his aflidavit in reply wherein he statcd inter alia LL,at the trial judge rightly dismissed the main suit since thc plaintiff was not prescnt to prosecute thc matter and that because

the plaintiff was given a chance to prosecute his matter and he failed to utilize the same, it is in the interest ofjustice that this application is dismissed with costs to the 2"d respondcnt since the applicants did not take the necessary steps to prosecute tl1e same.

5 The 1st and 3.d rcspondents did not opposc the application despite having bcen served with court process through their respective counsel as directed by this court.

### Reoresentation:

The applicant was reprcsentcd by m/s Ruakafuuzi & co. Advocates while thc 2"d respondcnt was reprcsentcd by m/s pearl Aduocates & Sottcitors. Both counscl filed written submissions in support of their respective clients, cases as directcd by this court. 10

## Consid.eration bu court:

I have carefully perused thc evidence, a,d read the submissions of counsel, the details of which are on court record, and which I have taken into account in determining whether or not this application demonstrates sufficient cause so as to warrant the grant of thc praycrs sought.

It is trite law that powers to set aside dismissal ord.er are in the discretion of tJre court, however, the applicant should furnish sufficient reasons to enable the court exercisc its discretionary power.

Thc courts have establishcd various tests as to what amounts to good or sufficient cause to warrant the setting aside of a dismissal and reinstatement of a suit dismissed for want of prosecution. It is now a settled lega1 position t},at sufficicnt reason must rclatc to inability or failure to take a particular step in a matter.

In thc casc of captain Philrip ongom as catherine Ngero outoto, sccA rvo. 74 oJ 2oo7 it was hcld that what amounts to sufficient cause includcs a mistakc by an advocate, illness of a party or advocatc and ignorance of filing procedurc by the party or their advocatc. fsee also Felix Tumbo r(isima us T'TCL Limited. & Anor Civil Application No,1 of 7992; Miscellaneous

### 7377 oJ' 2022 po;trlck Mulond.o aersus Frelght Appllcatlon No. Fouard.ers)

In the case beforc me, it is 1.tre applicants cvidencc that the late Mutegeki John passed on in 2019 before Ciull Suit .l\Io. OOZS of 2076 was disposed of, and that although the proccss of obtaining the grant of letters of administration had becn commenced as early as 2O 19, it was not completcd until 29th March, 2022 whcn thc grant was issucd.

what is not clear howevcr, is why the issue of death of the praintiff was never brought to the attention of court, or why counsel did not procced under the provisions of Section 222 o;f the Successloa Acf, so as to obtain a grant for purposes of prosecuting thc suit. This was clearly an oversight on the side of counse I who was well aware of the date of hearing for the matter but chose to sit back.

It is clear from the trCCMIS however that thc applicant flled MA NO. 1362 oJ

2022for substitution of the appricants in place of Mutegeki John who died before the disposal of the main suit. EICCS OZS oJ 2016. 15

As per lettcr dated 16th August, 2022 counscl for thc applicants from the firm ol M/s RuakaJuuzt & Co, Ad.aocates wrotc to thc Deputy Registrar of this division, drawing thc attention of this application that seeks the substitulion of the name of the deceascd with thc names of thc applicants.

The affrdavit in support of that application was deponed by the 4th applicant, Mr' Mutaawc Patrick who averrcd that thc retters of administration, which werc attachcd to that application, had been issucd to the applicants as joint administrators vide HCT-OO-FD-AC-OIZO-2O21, on 29th March 2022.

The said application was howcvcr never brought to thc attention of this court so it remained pending. From the time thc applicants' counsel wrote to court on 16fh August , 2022 he nevcr made any othcr follow up on the response from the Dcputy Registrar. 25

It is now an cstablishcd principle of law that a iitigant's intercsts should not be dcfcatcd by thc lapscs of his counscl. ln GodJrey Mageze & Brian

Mhazira us. Sudhir Ruparelia SCC Application No. 70 oJ 2OO2 Karokora, "ISC, it was held that the omission, mistake or inadvertence of counsel ought not to bc visited on thc riligant, lcading to thc striking out of his appeal there by denying him justice. In this instance, the failurc to have the application fixed was largely attributed to the fa ure by the Deputy Registrar to allocate

it to the trial judge. Thc suit was dismissed before giving the applicants a chancc to be heard in relation to tJ:e application.

In the premises, ctuil suit .r\Io. oo75 0J 2076 is hereby reinstated. Since t},e applicants wcrc grantcd lcttcrs of administration this court would, in the interest ofjustice and in exercise of its discrction, allow the substitution of

the name of thc dcceased with those of the applicants; the applicants should then filc the amcnded plaint within two wecks from the date of delivering this ruling.

MA I|IO. 7362 oJ 2022 has therefore been overtaken by events.

Each party to bear its own costs. 15

I so order.

Alexand.ra Nkong e Rug adga

Judge 2\_O

73tn Mag, 2O24.