Nanyanzi & 3 Others v Kakooza (Miscellaneous Application 39 of 2022) [2023] UGHC 393 (2 October 2023)

# **THE REPUBLIC OF UGANDA**

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

# **MISCELLANEOUS APPLICATION NO.39 OF 2022**

# **(ARISING FROM HIGH COURT CIVIL APPEAL NO.48 OF 2018)**

# **(ARISING FROM CIVIL SUIT NO.15 OF 2016)**

- **1. NANYANZI BETTY** - **2. NAMUWAWU PROSSY** - **3. NSUBUGA YUSUF** - **4. WALAKIRA MATIA:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

### **VERSUS**

**KAKOOZA ANGEL::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

### **Introduction.**

The notice of motion does not specifically state under what law the Application was brought however, from the orders sought, it is my observation that this is an Application for reinstatement of HCCA. No.48 of 2018 which was dismissed. The Applicant seeks orders that;

- 1. The dismissal of Civil Appeal No,48 of 2017 on the 23rd of February 2022 be set aside and the Appeal be reinstated. - 2. Costs be provided for.

The Application was supported by an affidavit deponed to by Namuwawu Prossy (2nd Applicant), who deponed the Affidavit on her behalf and on the behalf of the other Applicants herein. In the affidavit, she states as follows, that;


- 1. Having been unsuccessful in Civil Suit No.15 of 2016 in the Chief Magistrates Court of Rakai at Rakai, the Applicants filed HCCA. No.48 of 2018 and also engaged the services of an Advocate. - 2. She is a resident of Bijabwa Island, Ssese District and that due to operations carried out by soldiers around the island to cub poor fishing practices, transport became difficult as the big boats could not move for fear of the soldiers. - 3. The Applicants were also affected by the pandemic but as the same subsided, the 1st and 3rd Applicants fell sick while the 4th Applicant relocated to far way islands in Buvuma District and as a result, the above Applicants gave the Deponent authority to pursue the matter on their behalf. - 4. On 4th March 2022, she asked for any developments on the case from the lawyer she had instructed however, the lawyer had no idea of the status quo of the case. - 5. She proceeded to the Court and she was informed by the Clerk that the Appeal had been dismissed for want of prosecution.

An affidavit in reply was deponed by the Respondent where he states as follows, that;

- 1. The Application is incompetent, an abuse of Court process and a waste of Court time. - 2. The Application does not disclose any grounds to warrant the reliefs sought. - 3. The Applicants (Appellants) filed an Appeal which they did not follow up resulting in the same being dismissed for want of prosecution. - 4. He duly commenced execution in the lower Court and it is on that basis that they filed this Application. - 5. The Application is a deliberate ploy to delay the Respondent realizing fruits of litigation. - 6. The Applicants are also guilty of dilatory conduct.

Both parties filed written submissions.


#### **Submissions for the Applicants.**

The gist of the Applicants submission can be summarised as follows; firstly, the Applicants argue that they were prevented from prosecuting the Appeal due to the COVID pandemic. Secondly, the Applicants also argue that due to their lawyer's inadvertence, the suit was dismissed however, the lawyer's inadvertence should not be visited on them.

#### **Submissions for the Respondent.**

It was submitted for the Respondent that the Applicants cannot rely on the COVID 19 pandemic to support the fact that they failed to prosecute their case. It was submitted that the Appeal was filed in 2018 and the pandemic occurred in 2019. It was further submitted that even after the effects of the pandemic subsided in 2020, the Applicants never showed any interest in prosecuting the Appeal.

On negligence of Counsel, it was submitted that the Applicants never adduced any evidence that they kept in touch with the lawyer to establish the status of the Appeal and that they only did so in March 2022. It was also submitted that the Applicants did not provide any evidence to support the fact that they duly instructed a lawyer.

Having carefully considered the affidavits and submissions, I now proceed to determine this Application.

#### **Determination of Application.**

To warrant an order reinstating the Appeal for having been dismissed for nonappearance when the Appeal was called for hearing, an Applicant ought to prove sufficient cause that resulted in the non-appearance when the matter was called for hearing. (See: *Order 43 Rule 16* of the *Civil Procedure Rules*).

In *Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society & 2 Others, Miscellaneous Application No. 696 of 2018*; it was observed that sufficient cause entails a situation where a party has not acted in a negligent manner or where a party cannot be alleged to have not been acting diligently.


It is the Applicants' position that she duly instructed a lawyer and when she inquired from her lawyer of any developments, the lawyer intimated that he was not aware of any developments. On the other hand, the Respondent contends that there is no evidence to support the fact that the Applicant duly instructed a lawyer or that the Applicant kept in contact with her lawyer.

I have had an opportunity to peruse the Court record. It is my observation that by an affidavit of service deponed by a one Ssempijja Alex, the Deponent obtained hearing notices from the Respondent not the Applicants or their lawyers and served the same on the Applicant's lawyers, M/S Lubega-Matovu and co. Advocates on 29th November 2021 and in specific the hearing notices were delivered to a one, Ssemugenyi Fred who was in personal conduct of the Applicants' matter. In other words, the hearing notices were extracted and served by the Respondent.

On the strength of affidavit of service, I come to a conclusion that the Applicants duly instructed lawyers to represent her and the said lawyers were known to the Respondent because the hearing notices originated from the Respondent. The Respondent cannot therefore in the same breathe state that there is no evidence that the Applicants duly instructed lawyers to represent them in the Appeal.

I am also inclined to come to a conclusion that even after the lawyers were duly served with the hearing notices, they did not appear and no reason has been advanced for their non-appearance. The non-appearance of Counsel without reason even after being served with hearing notice is in my opinion highly irregular and unprofessional on the lawyers' part. In the result, it is my observation that there was inadvertence on the part of the Applicant's lawyer and lapses by Counsel should not be visited on a litigant unless the litigant was complicit in the lawyer's actions. (See; *AG vs. AKPM Lutaaya SCCA No. 12 of 2007, Katureebe, JSC, held that the litigant's interests should not be defeated by the mistakes and lapses of his counsel.*)

In *Kananura versus Kaijuka, Supreme Court Civil Reference No.15 of 2016* cited with approval in *Vegol (U) Ltd versus Sentongo, HCMA. No.72 of 2020*, it was held


that a litigant though represented but not knowledgeable in the processes of Court, is under a duty to follow up and inquire from his Advocate, the status of his Appeal.

The hearing notices were served on the Applicants' lawyers and not the Applicant herself, the lawyers' were under a duty to inform the Applicants on the status quo of the case and also appear for the Applicants in the Appeal. Unfortunately, the lawyers did not give the Applicants any feedback on the Appeal and as it turned out, the Appeal was dismissed for non-appearance of the Applicants or their lawyers despite the fact that the lawyers were duly served with the hearing notices. Even after the Appeal had been dismissed, the 2nd Appellant inquired from her lawyers on the status of her appeal and her lawyers were still not aware of any developments until one of the Applicants visited the Court personally to establish the status of the Appeal. This in my opinion speaks to the fact that the Applicants were diligent.

The court record also demonstrates that prior to the dismissal, one of the Appellants was always present in Court and this supports the fact that the Appellants are interested in prosecuting the Appeal.

I also note that, the administration of justice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights. (See: *Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society & 2 Others (supra)*).

Having found that the Applicants' lawyers were negligent in handling the Applicants' Appeal and that lapses and errors should not necessarily debar a litigant from pursuit of their rights, it is my finding that sufficient cause/reason has been advanced by the Applicants' to warrant reinstatement of the Appeal.

# **Conclusion and orders.**

- 1. The Application is allowed. - 2. The order dismissing HCCA. No.48 of 2018 is set aside. - 3. HCCA. No.48 of 2018 is hereby reinstated and it shall be heard and determined on its merits.


4. Costs shall follow the outcome of the Appeal.

I so order.

Dated and delivered electronically at Masaka this 02nd day of October, 2023.

# **Victoria Nakintu Nkwanga Katamba.**

**Judge.**