Nakalembe v Attorney General (Miscellaneous Application 452 of 2022) [2024] UGHCCD 187 (8 November 2024)

## **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.452 OF 2022**

## **(ARISING FROM CIVIL SUIT NO. 007 OF 2022)**

**JANET NAKALEMBE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **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 Civil Suit No. 0007 of 2022 be set aside and the applicant's Civil Suit be re-instated.* - *2. Costs of this Application be provided for.*

The grounds for the application are elaborated in detail within the applicant's supporting affidavit, but briefly are;

That the applicant filed a case vide High Court Civil Suit No.007 of 2022 in this court and summons were extracted and served on the respondent on the 4 th/02/2022 at the Ministry of Justice & Constitutional Affairs directorate of civil litigation.

The respondent never filed her written statement of defence and the time to do so expired.

The applicant filed HCMA Draft No.0305 of 2022 by ECCMIS on 2nd/06/2022 for leave to enter a default judgement against the respondent.

On the 17th/06/2022 Mirembe Sandra the legal assistant of T. Odeke & Co. Advocates received ECCMIS communication on her email [\(mirembesandra36@gmail.com\)](mailto:mirembesandra36@gmail.com) stating that the main suit (civil suit No. 007 of 2022) is coming up for mention on the 14th/06/2022, when the very date has already passed and on checking on the status on ECCMIS, it showed the main suit was dismissed on that 14th/06/2022.

That the main suit could not be dismissed when there is a pending application, pending fixing and hearing.

That neither the applicant nor her lawyers were aware that the main suit came up for mention, they all found out through the ECCMIS notification that main suit No.007 of 2022 was fixed for mention on the 14th/06/2022.

The applicant and her lawyers believe that their non- attendance of court on 14th06/2022 was a mistake of court and ECCMIS of not informing them about the date in time but instead the date was known on the 17thday of June 2022 according to the said email.

The applicant is innocent because they relied on ECCMIS information as the new system of the judiciary since all the pleadings are filed online and pray not to be punished for the delays of the ECCMIS system.

The applicant prays that it's just and equitable for court to set aside court order dated 14th/6/2022 and reinstate HCCS No. 007 of 2022 for the same to be heard and Merit

The Respondent, through State Attorney Mark Muwonge, strongly opposed this application and filed an affidavit in reply, which can be summarized as follows:

That I know that it's the duty of every litigant to take necessary steps to ensure that they prosecute their suit.

That I know that the main suit was dismissed on 14th June 2022 and this application was filed and served in the respondent more than a year later. That I know that setting aside the dismissal of the main suit will occasion immense prejudice to the respondent.

## **Issue**

*Whether the Applicant has proved sufficient cause to justify the reinstatement of Civil Suit No. 007 of 2022.*

The applicant was represented by *Counsel Mututa Martin* while the respondent was represented by *Sam Tusubira (State Attorney)*

The parties were directed to file written submissions; while the applicant complied and filed their submissions, the respondent failed to do so.

# **Determination**

*Whether the applicant has proved sufficient cause to justify the reinstatement of Civil Suit No. 007 of 2022.*

Counsel for the applicant submitted that the lack of notification regarding the hearing constituted "just cause" for her absence and argued that she should not be penalized for this. He relied on the case of *Capt. Phillip Ongom v Catherine Nyero Owota SCCA 14/2/2001 [2003] KALR*, where it was held that a litigant should not be disadvantaged by the mistakes of their lawyer.

It was further submitted that the court ought to have prioritized the applicant's pending miscellaneous application, which would have prevented the dismissal of the suit. Counsel cited **Section 33 of the Judicature Act** and **Section 98 of the Civil Procedure Act**, emphasizing that these provisions give the court discretion to grant remedies that ensure a fair hearing.

# *Analysis*

In civil litigation, the principle of dismissal for want of prosecution plays a crucial role in ensuring the efficient administration of justice, as highlighted in **Uganda's Civil Bench Book**. This principle empowers courts to dismiss cases when plaintiffs fail to actively pursue them within a reasonable timeframe, thereby preventing unnecessary delays that could compromise the integrity of legal proceedings.

Several criteria underpin this principle, with inordinate delay being a primary consideration. Inordinate delay refers to an unreasonable lapse of time that can impair the defendant's ability to mount a defense, particularly if evidence is lost or witnesses become unavailable. Furthermore, the potential prejudice to the defendant is essential; if a defendant is likely to suffer harm due to the plaintiff's delay, dismissal becomes a justified course of action.

The notion **of** *"sufficient cause" or "sufficient reason"* is pivotal in this context. It refers to the legal determination that adequate grounds exist to support a case or decision. The court must carefully assess the reasons or explanations provided, ensuring that the sufficiency of these grounds relates to inadvertency, inability, or a bona fide failure to take proactive steps to advance one's case in a timely manner. This assessment aims to exonerate the litigant from any presumption of dilatory conduct, negligence, or inaction that initially led to the unfavorable outcome they now seek to

remedy **(see** *Black's Law Dictionary, 8th Edition; Supreme Court Civil Appeal No. 8/9/1993)*.

Judicial precedent establishes that the court's inherent power to exercise discretion—including the ability to reinstate a dismissed suit—is confined by the requirement of sufficient cause **(see** *Supreme Court Civil Appeal No. 8/9/1998; Banco Arabe Español v. Bank of Uganda, Supreme Court Constitutional Application No. 1/2006; John Sanyu Katuramu & Others v. The Attorney General).*

The burden of proof rests on the applicant, as articulated under the **Evidence Act, Cap 8.** They must demonstrate sufficient cause by providing a factual explanation for their delay or delinquency, with each case being evaluated based on its unique circumstances. The court cannot simply assume sufficient cause for reinstatement without a factual or legal basis.

When determining whether sufficient cause exists to set aside a dismissal order, the court must consider whether the applicant has presented compelling reasons for their nonappearance at the hearing. The governing law, encapsulated in *Order 9, Rule 23 of the Civil Procedure Rules***,** allows a plaintiff, upon dismissal of a suit, to apply for an order to set aside the dismissal if they can satisfy the court of sufficient cause for their failure to appear.

The Supreme Court, in the case of *Nicholas Roussos v. Gulamhussein Habib Virann & Anor* **(SCCA No. 9 of 1993**), articulated key principles for exercising judicial discretion in these applications. The court acknowledged that various circumstances might amount to sufficient cause, including:

a) **Mistakes by Legal Counsel**: While a mistake by legal counsel may be deemed negligent, the court has recognized such errors as sufficient cause, as established in *Shabin Din v. Ram Parkash Anand* **(1955) EACA 48**. This principle allows for the notion that litigants should not always bear the consequences of their counsel's mistakes, provided those mistakes do not indicate willful misconduct or intentional delay.

- b) *Unrepresented Litigants*: In *Zirabamuzale v. Correct* **[1962] EA 694**, the court held that if a party is unrepresented and unaware of the procedural requirements, this may constitute sufficient cause. This principle is particularly relevant when a litigant genuinely struggles with legal processes and fails to appear without deliberate neglect. - c) *Illness*: A party's illness can also warrant setting aside a dismissal, as confirmed in *P. B. Patel v. The Star Mineral Water and Ice Factory* **[1961] EA 454**. If a party is unable to attend court due to substantiated illness, this could qualify as sufficient cause, as long as the illness is not merely a pretext for delay.

However, certain situations do not constitute sufficient cause. For instance, in *Mitha v. Ladak* **[1960] EA 1054, t**he court ruled that failure to instruct an advocate is insufficient cause. This applies when a litigant has ample opportunity to prepare for the hearing yet fails to take reasonable steps to secure representation or appear in court.

In the current application before the court, the central issue is whether the applicant has demonstrated sufficient cause to warrant reinstatement of the main suit. The applicant argues that their reliance on the ECCMIS system, which failed to notify them in time, constitutes sufficient cause. However, the court must evaluate whether this reliance, without any proactive measures to monitor the case's progress, meets the legal threshold for sufficient cause.

The main reason for the dismissal of the applicant's suit was failure to serve summons to file a defence which is condition precedent for any matter to proceed to another level. There was no affidavit of service on court record and the court had no means of establishing whether the applicant had complied with the requirements of the law.

The suit was dismissed under *Order 9 rule 19 of the Civil Procedure Rules* which provides;

*Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails for a period of one year from the date of return made to the court by the serving officer…..the court may make an order that the suit be dismissed as against the defendant.*

The applicant's counsel has not availed any reason for the failure to serve the application save for the argument that he had filed an application for judgment in default.

This court further observes that the applicant extracted wrong summons to serve on the respondent. The summons on record as extracted and allegedly served on the respondent provide for 15 days. This is contrary to the Government Proceedings (Civil Procedure) Rules, Rule 8 which provides;

In case of Civil Proceedings against Government- *(b) Where a summons is issued under rule 1(1)(a) of that Order the time limited by the summons for entry of appearance shall not be less than thirty (30) days.*

The court finds that the Applicant has failed to demonstrate sufficient cause to justify reinstating the suit. The reliance on **ECCMIS** without due diligence and the delay in filing this application do not meet the legal standard for setting aside the dismissal. Therefore, the application should be dismissed with no order as to costs.

I so Order.

*Ssekaana Musa Judge 8 th November 2024*