Nakibuule v Nsereko & 2 Others (Miscellaneous Application 1107 of 2023) [2024] UGCommC 286 (11 July 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## [COMMERCIAL DIVISIONI

## MISCELLENEOUS APPLICATION NO. 1TO7 OF 2023

## ARISING FROM CIVIL SUIT NO.93O OF 2019

MARIAM NAKIBUULE::::::::]:::::::::::::::::::::::::::::::::::::::APPLICANT

### VERSUS

I. NSEREKO MUSA

#### 2. MUVANEZA EVEREST

## 3. FINANCE TRUST BANK::::::::::::::::::::::::::;::::::::::::::RESPONDENTS

## BEFORE: LADY JUSTICE ANNA B. MUGENYI

### RULING

#### INTRODUCTION

This Application was brought by way of Notice of Motion under section 98 of the Civil Procedure Act(CPA), Order 9 rule 18 and Order 52 rule 2 of the Civil Procedure Rules(CPR) for orders that:

- <sup>I</sup>) The order for the dismissal of civil suit No. 930 of 201 9 be set aside. - 2) That civil suit No. 930 of 2019 be reinstated and heard on its merits. - 3) Costs of this Application be provided for.

This Application was supported by the affidavit of Mariam Nakibuule, the Applicant and opposed by the affidavit in reply of Ntege Ronald, the head of the legal department of the third Respondent.

The brief facts of this Application are that the Applicant filed civil suit No.930 of <sup>201</sup>9 against the Respondent for trespass to her matrimonial home, fraudulent transfer, and registration of a mortgage on the land. The suit was dismissed by the court on the l3th day of April 2023 under section 7 of the Constitution (commercial court) (practice) directions for non-compliance by the parties to court directives. The Applicant now seeks for the dismissal order to be set aside and the suit reinstated. The Applicant avers that on the hearing date, Counsel for the Applicant had another matter in Jinja High Court and counsel sent their legal assistant to inform the court

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of the same but the court disregarded the same and dismissed the case. The Applicant further averred that she was delayed and divened by traffic thereby reaching in court al 9:40 am when the matter had been dismissed. The 3'd Respondent contends that the Applicant has not adduced any sufficient reason for failure to abide by court directions which was the reason for dismissal.

#### REPRESENTATION

The Applicant was represented by M/s Mukasa Charles & Co Advocates whereas the third Respondent was represented by M/s Muwema Co Advocates and Solicitors.

### RULING

I have considered the pleadings and submissions of the parties in this matter and the main issue for determination is whether the order for the dismissal of civil suit No. 930 of 2019 should be set aside and the main suit reinstated.

The Applicant seeks to reinstate the suit under Order 9 rule l8 of the Civil Procedure Rules (CPR). This provision is not applicable in the instant case as the said provision seeks to reinstate suits that have been dismissed for failure to pay fees or where neither party ofthe suit appears when the suit is called for hearing.

Similarly, the Respondent in their submissions assert that the provision under which the main suit was dismissed is akin to Order l7 rule 4 of the CPR and therefore the right remedy for the Applicant is an appeal. I disagree with the position stated by the Respondent as the two provisions ofthe law were drafted to serve different purposes.

As far as can be ascertained from the record, on the 28th of November 2022, the court ordered the parties to file their joint scheduling memorandum, trial bundles, and witness statements and adjourned the matter to the 16th of February 2023 for the scheduling conference to take place. This date was further adjourned to the l3th of April 2023. Civil Suit No.930 of 2019 was dismissed by this court on the 13th day of April 2023 under section 7 of the Constitution (Commercial Court) (Practice) Directions for non-compliance by the parties with court directives. During the dismissal, the court noted that the joint scheduling memorandum and trial bundles of the parties were not on the file.

Therefore, the assertion by the Applicant in their pleadings and submissions that the suit was dismissed due to non-appearance in court is not true because the dismissal in issue was due to the parties' failure to adhere to the court's directives.

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Be that as it may, the power to reinstate a suit dismissed under section 7 of the Constitution (Commercial Court) (Practice) Directions lies in the discretion of the court and such discretion must be exercised judiciously and in deserving circumstances.

Such powers are set out in section 98 of the CPA which provides that:

" 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 ofjustice or to prevent abuse of the process of the court ".

Much as the court has the discretion to reinstate a suit that has been dismissed, the said discretion can only be exercised upon the Applicant showing sufficient cause or reason warranting a reinstatement.

Sufficient cause or reason was defined in the case of Atoo Grace vs Onen Anthony and Anor HCMA No 44 of 2021 thus:

"Sfficient cause or reason refers to a legal determination that there exists sfficient grounds to support a case or a decision".

The Court went on to state that:

"The court must be satisfied as to the reasons or explanation provided and the sfficiency of the ground should relate to an inadvertency, inability, failure or bonafide to take proactive, necessary or mandatory measures or steps to further one's case timely which would exonerate the litigant from presumption or assertion of dilatory conduct, indolence, negligence or inaction which in thefirst place led to the negative outcome which the litigant now seeks to have remedied. "

The burden of proof therefore lies on the Applicant to demonstrate that there was sufficient cause or reason that prevented her and her counsel fiom following court directives.

Upon a review of the Applicant's pleadings and submissions, the Applicant's explanation for the cause of the delay or failure in filing their trial bundles, witness statements, and the joint scheduling memorandum revolves around the delay in the process of obtaining letters of administration for the estate of her late husband who was the l't Defendant in the main suit and passed on at the stage of scheduling, although she seems to dwell on her non-attendance and that ofher counsel on the date of hearing which was not the basis of dismissal.

In his submissions, counsel for the Applicant also alludes to the non-appearance of counsel and the late communication of the date of hearing to the Applicant by their lawyers as the basis for dismissal ol the suit and stated that it should not be visited on her as they were prevented from attending the hearing by sufficient cause.

Just to reiterate further, the Applicant's suit was not dismissed due to non-appearance of counsel or the Applicant, and even if both the Applicant and her lawyers were present in court on the fateful date, the suit would have still been dismissed for failure to follow courts directives because they had failed to file the joint scheduling memorandum and their trial bundles as directed by the court. It should be noted that non-compliance with court directives renders such directives ineffective in as far as case management by the court is concemed and contributes to unnecessary case backlog that the courts are trying to eliminate and cannot be condoned.

The above notwithstanding, it became clear to this court that unless the process of obtaining letters of administration of the estate of the deceased l rt Defendant is concluded and a representative ofthe deceased 1't Defendant is duly appointed, then the main suit cannot be progressed further including filing of the fore- mentioned documentation and the taking place of the subsequent scheduling conference etc.

It is the considered view of this court, therefore, that the Applicant has satisfactorily demonstrated sufficient cause for the main suit herein to be reinstated and appears to be interested in the prosecution ofher case as she regularly attends court hearings save for the day the matter was dismissed when she was delayed by traffic flow on Gaba road as averred in her affidavit in support ofthe Application.

In the interest ofjustice, therefore, this Court will proceed to set aside the dismissal of Civil Suit No. 930 of 2019 and the said suit is re-instated for it to be heard on its ments.

Costs shall be in the cause.

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HON. LADYJUSTICE ANNA B. MUGENYI DATED..................t.!.. .1..1 I . I/-.2:i,.......... \

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