Opiyo & Another v Ayugi & 2 Others (Miscellaneous Application 156 of 2023) [2024] UGHC 200 (11 April 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU **MISCELLANEOUS APPLICATION NO. 0156 OF 2023** (ARISING FROM CIVIL SUIT NO. 016 OF 2019)

1. OPIYO NICHOLAS 10 2. CHARLES BOB ODONG ....................................

#### **VERSUS**

1. AYUGI NORAH

2. APIYO MARGARET

3. OKANGA MOSES ...................................

### **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

### **RULING**

This is an application to reinstate the dismissed Civil Suit No. 016/2019 25 for hearing on merit. That suit sought to challenge the sale of a piece of land by the Applicant's mother and sister, who sold to the 3rd Respondent at Ug. Shs. 80,000,000. When the suit was lodged, the 3rd Respondent also sued the vendors, vide Civil Suit No. 53 of 2019. Upon the dismissal of the Applicant's suit in which the 3rd Respondent was joined alongside the Applicant's mother and sister as defendants, the 3rd Respondent 30 withdrew his suit against the land vendors. (The Applicants' mother and sister). The suit by the Applicants came up for hearing on earlier occasions as shown by the hearing notices attached to the opposing affidavit, before the dismissal on 26/1/2023. Those earlier dates are 14th & 15th June,

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2022; and 7th December 2022. However, neither the Applicants nor their $\mathsf{S}$ Attorney or Counsel, appeared. The case was then fixed for hearing on $26/1/2023$ , and the hearing notice duly served, and received by a one Akram, an official of the Firm of the then Advocates for the Applicants. I note that the Firm of KM Advocates & Associates have not denied the fact of due service with the court Process. They have not sworn affidavits in 10 this matter. When the case came up on $26/1/2023$ , neither the Applicants nor their Attorney or their Advocate, appeared. They now contend that they have been informed by the former Advocate that this court premises were under renovation, and case file census was ongoing, so they did not find it necessary to appear. That deposition, certainly has not been 15 supported by their then Advocates for court to confirm if at all that is what the then Advocates advised the Applicant. If that be the case, then the recourse against the Advocates is to be dragged to the Law Council, or Court for professional negligence, because the various hearing notices on court record with which the Advocates had been served, rebut their alleged 20 claims. Be that as it may be, the question is whether inspite of the alleged negligence/mistake of the former Counsel, the Applicants were themselves diligent in prosecuting the head suit. Mr. Doii for the Applicants, rightly conceded, that the Applicants themselves and their Attorney, did not appear during the hearing of 14th & 15th June, 2022, as well as that of 07th 25 December 2022. In my view, they have not demonstrated diligence, so they cannot rely on mistake or negligence of former Counsel. I have thus come to the conclusion that; sufficient cause has not been shown for reinstatement of the dismissed Civil Suit No. 16/2019. Although it is alleged that the matter involves a land dispute, which ordinarily ought to 30 be heard and determined on merit, this case is not purely land but seeks to purport to challenge a sale by the Applicants mother and sister, to the

Hudodin

$\overline{2}$

3rd Respondent. It is more about the propriety of the sale transaction and $\mathsf{S}$ the power to do so.

All in all, the Applicants have a recourse against their mother exclusively, if at all, and their former Counsel in negligence or professional misconduct.

The Application is devoid of merit and stands dismissed with costs.

Delivered, dated and signed in court this 11th April, 2024.

# George Okello 11/4/2024 **JUDGE**

Ruling read in Open Court 20

## 11th April, 2024

### **Attendance**

The 3rd Respondent.

Mr. Doii Patrick, Counsel for the Applicants. 25 Mr. Kutosi, Counsel for the 3rd Respondent.

> Hursch 11/4/2024 George Okello **JUDGE**

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