Namulondo v Bamwesigye & 3 Others (Miscellaneous Application 149 of 2024) [2024] UGHC 1133 (21 November 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### LD-MA-NO.0149 OF 2024

# (ARISING FROM CIVIL SUIT NO.037 OF 2024 FORMERLY MUBENDE CIVIL SUIT NO. 57 OF 2020)

NAMULONDO MARY ::::::::::::::::::::::::::::::::: **APPLICANT** ......................................

#### **VERSUS**

- 1. FRED BAMWESIGYE - 2. DEBRA KICONCO - 3. KIBOGA DISTRICT LAND BOARD - 4. COMMISSIONER LAND REGISTRATION

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## **BEFORE: HON. JUSTICE KAREMANI JAMSON. K**

#### **RULING**

#### Introduction.

Namulondo Mary (hereinafter referred to as the applicant) brought this application under Section 98 of the Civil Procedure Act (CPA), section 33 (now S. 37) of the Judicature Act and Order 52 rules 1 and 3 of the Civil Procedure Rules (CPR) against Fred Bamwesigye, Deborah Kiconco, Kiboga District Land Board and Commissioner land registration (herein after referred to as the respondents). The applicant seeks for orders that:

a) The order issued by this honourable court on $3/5/2023$ expunging the applicant's defence and allowing the $1st$ and $2nd$ respondents to proceed ex parte in civil suit no. 0057 of 2020 be reviewed and set aside.

Main

- b) The court grants the applicant an enlargement and extension of time within which to file her defence out of time. - c) The applicant's defence filed out of time on $17/11/2020$ be allowed and validated in order for the matter to be heard inter parties on its merits - d) That the costs of the application be in the cause.

# Background.

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The 1st and 2nd respondents filed civil suit no. 0037 of 2024 formerly civil suit no. 0057 of 2020 against the applicant, $3^{rd}$ and $4^{th}$ respondents for a declaration that the $4^{th}$ respondent's decision contained in the letter dated $27/7/2020$ expunging the 1st and 2nd respondents' certificate of title comprised in LRV 1342 Folio 16 Singo Block 517 Plot 35 land at Kalungu was illegal and unlawful, ultra vires the rules of natural justice, abuse of power, contempt of court, irrational and unreasonable and an infringement of the 1st and $2nd$ respondent's constitutional rights. The applicant was served with summons to file a defence on $30/10/2020$ through her lawyers M/S Mugarura, Kwarisiima and Co. advocates. The applicant never filed a written statement of defence (WSD) until $17/11/2020$ . On $3/5/2023$ , this honourable court struck off the written statement of the applicant for being irregular on court record, and issued an interlocutory judgment against the 3rd and 4th respondents and ordered the matter to proceed ex parte against the applicant, the $1^{st}$ , $3^{rd}$ and $4^{th}$ respondents.

It is upon that background that the applicant brought the current application seeking the said orders.

## Grounds.

The grounds of the application as contained in the application and the supporting affidavit sworn by the applicant and are summarized as follows:

1. The circumstances that led to dismissal and expunging of the applicant's defence are broadly attributed to the dilatory conduct and mistake of her former lawyers from M/S Mugarura Kwarisima and Co. Advocates;

$-$ *man*

2. That the former lawyers were served with summons to file a defence on $30/10/2020$ but neglected to file the same within the time required;

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- 3. That the applicant's former lawyers further neglected and omitted to apply for an extension of time which would have cured the irregularity; - 4. That the above led to the applicant's defence to be expunded from the record on $3/5/2023;$ - 5. That the applicant has instructed her new lawyers $M/S$ Muhumuza Kiiza Advocates who after examining the order and court record advise the applicant to file the current application; - 6. That the applicant is aggrieved about the orders of this court issued on $3/5/2023$ which affect her proprietary interest in Singo Block 517 plot 35 LRV HQT 1342 folio 16 the subject matter without being heard.

The application was opposed through the affidavit in reply sworn by Fred Bamwesigye - the $1^{st}$ respondent on the following grounds;

- 1. That the application is in violation of the doctrine of lashes in that the applicant sat on her rights for one year and the same is brought in bad faith and a great prejudice to the $1$ st and $2$ nd respondents; - 2. That the applicant was served with the plaint in HCCS No. 57 OF 2020 on the $30/10/2020$ and all along knew the case was proceedings but opted not to defend the suit: - 3. That the applicant who was well represented chose to file her defence on $17/11/2020$ which was out of time and no leave was sought to do the same; - 4. That on $3/5/2023$ when the head suit was dismissed, the applicant was in court and it has taken her a year to bring this application which is an afterthought; - 5. That the applicant is a habitual litigant therefore ought to have known that court has timelines; - 6. That the applicant is guilty of excessive delay in bringing this application;

$-$ *Mum*

- 7. That the main suit is in advanced stages as almost all the witnesses have been heard and the 1st and 2nd respondents have incurred a lot of costs pursuing this matter and setting aside the proceedings would greatly prejudice the 1st and 2nd respondents; - 8. That if the court is inclined to grant this application, the applicant should be ordered to pay the costs so far incurred by the $1^{st}$ and $2^{nd}$ respondents.

In rejoinder, the applicant reiterated that the application is brought in good faith and is meant to accord her an opportunity to be heard. That the delay in filing this application was brought about by the continued and prolonged engagements with her former lawyers and failed attempts of securing new lawyers.

The $3rd$ and $4th$ respondents never filed their respective affidavits in reply therefore this applicant shall proceed exparte against them.

## **Representation**

The applicant was represented by Mr. Derrick Magezi of $M/S$ Muhumuza Kiiza Advocates & Legal Consultants while the $1st$ and $2nd$ respondents were represented by Ms. Viola Amanya of $M/S$ KBW Advocates.

Both parties filed written submissions for consideration by this court.

## **Issues for determination**

- 1. Whether there is sufficient ground to review and setting aside the ex parte order in civil suit no. 037 of 2024 formerly civil suit no. 0057 of 2020. - 2. Whether there is sufficient ground to warrant extension of time within which the applicant should file a written statement of defence in civil suit no. 037 of 2024 formerly civil suit no. 0057 of 2020. - 3. Whether the applicant's defence filed out of time on $17/11/2020$ should be allowed and validated. - 4. What remedies are available to the parties?

Main

#### Submissions of counsel.

Counsel for the applicant submitted that this court has got inherent powers to make such orders that may be necessary for the ends if justice or to prevent abuse of the process of court. That the applicant's affidavit in support and rejoinder have demonstrative of circumstances and occurrences that amount to sufficient cause. He cited the case of **Edirisa Kanonya and Anor -V- Nsubuga and others MA No.** 373 of 2022 on the position that parties are not visited with punishment from the mistakes or inadvertence of or negligence of counsel. That in this case, the applicant demonstrated that her previous lawyers not only failed to file a defence in time but also continued to neglect her until it was too late to file the instant application. Counsel also referred to the case of Jammadas Sodlia -V-Gordhandas Hemraj (1952) USR 7 at 11 where it was observed that to deny the subject a hearing should be the last resort of court.

On the other hand, counsel for the $1^{st}$ and $2^{nd}$ respondents submitted that in such an application, the applicant must show that there is sufficient cause or reason that prevented him or her from taking necessary steps. That in this case, the applicant was served with the summons to file a defence but she filed the defence out of time and took no necessary steps to exercise her rights to seek an extension of time to file the defence. That the reason given by the applicant is not sufficient ground. Counsel further contended that on the day the WSD was struck off, the applicant was in court and the trial judge advised her on what to do but it took her a year to bring this application. That all that time taken to bring this application is an indication that the applicant is not interested in pursuing her defence. That the hearing of the main suit is in advanced stages and the $1^{st}$ and $2^{nd}$ respondents have incurred a lot of costs. He further submitted that the WSD that the applicant seeks

$-$ *Man*

to be allowed and validated lacks merit, vexatious and based on a claim that is barred by time. He prayed that the application be dismissed with costs.

## **Resolution of issues**

1. Whether there is sufficient ground to review and set aside the ex parte order in Civil Suit no. 037 of 2024 formerly Civil Suit no. 0057 of 2020.

Applications for review and setting aside are governed by the provisions of section 82 of the CPA, Cap 282 and Order 46 rules 1 and 2 of the CPR.

The grounds which an applicant must prove as affirmed in these provisions and confirmed by the courts of law are that;

- a) There is a mistake or manifest error apparent on the face of the record. - b) There is a discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - c) Any other sufficient reason exists.

See: Attorney General and Anor -V- James Mark Kamoga and Anor SCCA No. 8 of 2004, Ladak Abdul Mohammed Hussein -V- Griffiths Isingoma Kakiiza SCCA No. 08/1995.

From the instant application and affidavit in support, there is no mention of any error apparent on the face of record or discovery of new and important evidence for which the applicant seeks a review. Rather, the applicant's main ground for review and setting aside is that the delay in filing a written statement of defence in civil suit no. 037 of 2024 formerly no. 57 of 2020 was broadly attributed to the dilatory conduct and mistakes of her former lawyers from M/S Mugarura Kwarisima and Co. Advocates. In the case of Re Nakivubo Chemists (U) Ltd [1979] HCB 12, It was held that the expression sufficient should be read as meaning sufficiently of a kind analogous to the discovery of new and important matters of evidence previously overlooked by excusable misfortune and some mistake or error apparent on the face of record. See also: Yusuf -V- Nokorach [1971] EA 104,

However, in the case of Neville James Stevens -V- Sandra Stevens HCMA NO. 368/2016, Hon. Lady Justice Flavia Senoga Anglin in addressing the grounds for review as laid in Order 46 of the CPR and the above mentioned cases stated that;

"However, my view is that the holdings in the above cases are no longer good case" law as they limit the discretion of a court to determine what amounts to "any" sufficient reason" depending on the circumstances of each case. I am fortified in my holding by S. 33 of the Judicature Act and the decision of the Supreme Court in the case of Byaruhanga & Co. Advocates -V- UDB SCCA 02/2007. While the case concerned the application of SS.5 and 6 of the Commissioner for Oaths (Advocates) Act and the rules made thereunder, I find the holding applicable to the circumstances of the present case. The court held that "it should be the discretion of the judge in the circumstances of each case to decide whether in the circumstances of a particular case and the dictates of justice a strict application of the law should be avoided."

Based on the above, I will proceed to consider whether the ground put up by the applicant amounts to sufficient cause.

It can be taken note of that the applicant was served with the summons to file a defence on 30/10/2020. Through her lawyers, she filed her defence on $17/11/2020$ which was 17 days after service and two days late from the statutory period of 15 days within which to file a defence.

The applicant contends that she had been challenged by the inadvertence of her counsel throughout this entire case who failed to file the defence in time and failed to seek leave

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to file the defence out of time. That it took her such a long time to bring this application because she was still liaising with her former counsel who failed to help her and she had to find her current lawyers.

Despite the delay in bringing this application, I note that the applicant's conduct shows that she was always interested in prosecuting her case because even on the day her defence was struck off record, she was present in court save for her lawyer. It confirms that indeed the applicant has been willing to prosecute her case only that she has been let down by her counsel.

In the case of Andrew Bamanya –V- Shamsherali Zaver, S. C. Civil Appln. No. 70 of 2001, the Supreme Court decided that the mistakes, faults / lapses or dilatory conduct of counsel should not be visited on the litigant. In that case there was a delay of $2\frac{1}{2}$ years in filing the application for leave to appeal out of time. The delay was caused by the applicant's lawyers. In that case the court found that it would be a denial of justice considering the circumstances of the case to shut the applicant out from exercising his rights. The Supreme Court decided that it had inherent powers under its own rules to administer substantive justice.

It is my considered position that the applicant herein has showed interest in her matter and I believe the applicant's evidence that she was delayed by her counsel's conduct in not filing the application on time which cannot be visited on her.

In the circumstances I find that the applicant has shown sufficient cause for review and setting aside of the orders that expunged her defence from the record and allowed ex parte proceedings in civil suit no. 037 of 2024 formerly civil suit 0057 of 2020.

Issues 2 and 3

2. Whether there is sufficient ground to warrant extension of time within which the applicant should file a written statement of defence in civil suit no. 037 of 2024 formerly civil suit 0057 of 2020

Main

# 3. Whether the applicant's defence filed out of time on 17/11/2020 should be allowed and validated.

Section 96 of the CPA provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the act, the court may in its discretion from time to time, enlarge that period even though the period originally fixed or granted may have expired.

In Andrew Bamanya –V- Shamsherali Zaver (supra) the court also held that the other principle governing applications for extension of time is that the administration of justice requires that all substances of disputes should be heard and decided on merit.

In the instant case, that applicant delayed to bring this application after the defence was struck off record in on $3/5/2023$ . This application was filed on $11/6/2024$ which is over a year later. The applicant contends that she has been delayed in trying to find new lawyers to represent her.

In the case of Good African Foundation Ltd and Anor V Agricultural Business Initiative Trust HCMA No. 1592 Of 2021 the court held that;

"although the applicant has not furnished convincing explanations for the delay, the court is hesitant to block the doors of justice in his face considering the fact that the underlying subject matter is a dispute over land. To deny the applicant that right in the circumstances of this application, would in essence be denying him access to *justice and a fair hearing both of which are guaranteed by the Constitution."*

In the same way, the main suit herein is a land matter and I believe all matters arising should be concluded on merit by inter party proceedings.

Based on the above, I resolve this issue in the affirmative and hereby grant the applicant leave to re-file a written statement of defence in civil suit no. 037 of 2024 formerly civil suit 0057 of 2020.

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### 4. What remedies are available to the parties?

Having found merit in this application it is allowed.

In the alternative the respondents prayed that in case this court allows the application then the applicant should meet the costs of recalling the witnesses.

I have looked at the circumstances of this matter and I deem it fit that the applicant ought to meet the costs of the witness PW1 who had concluded his testimony and had no more business in this court but he now have to come back.

#### Costs

It is trite law that costs follow the event. In this case, I find that the delay has been caused by the applicant and hearing is already ongoing in the main suit. Basing on the above reasons each party shall bear its own costs of this application.

This application is allowed with the following orders:

- a) The ex parte order in civil suit no. 037 of 2024 formerly civil suit no. 0057 of 2020 expunging the applicant's written statement of defence from the court record is hereby reviewed and set aside. - b) The applicant is granted extension of time and leave to re-file a written statement of defence in civil suit no. 037 of 2024 formerly civil suit 0057 of 2020 within 15 days from the date of this ruling.

man.

## 4. What remedies are available to the parties?

Having found merit in this application it is allowed.

In the alternative the respondents prayed that in case this court allows the application then the applicant should meet the costs of recalling the witnesses.

#### Costs

$\overline{a}$

It is trite law that costs follow the event.

$\mathcal{H} = \mathcal{H} \cap \mathcal{L}$

However, I do find it fit and proper to order that costs of this application depend on the outcome of the main suit

This application is allowed with the following orders:

$10$

- c) The applicant will meet the costs of recalling witness PW1. - d) The costs of this application will abide the outcome of the main suit.

I so order.

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Main **HILL**

KAREMANI JAMSON. K

**JUDGE**

$21/112024$

Court: The main suit will be mentioned on 27.01.2025 at 12:00 pm

tllam KAREMANI JAMSON. K

Judge 21/11/2024

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