Ssemukuutu and 3 Others v Kwanja and Another (Miscellaneous Application No. 55 of 2021) [2021] UGHCCD 209 (12 November 2021)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MASAKA

### MISCELLANEOUS APPLICATION NO. 55 OF 2021

(ARISING FROM CIVIL APPEAL NO. 24 OF 2018)

- 1. ABDUL SSEMUKUUTU - 2. BITAMALE ROBERT - 3. MUKASA GEREVAZIO - 4. NANKINDU TEKERA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

### VERSUS

- 1. KWANJA CHRISTOPHER - 2. WAGIKIRI ANTONIO ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

#### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This application is brought under Section 98 of the Civil Procedure Act and Order 52 Rules 1 & 3 of the Civil Procedure Rules seeking orders that;

- a) The order of this court in Civil Appeal No. 2 of 2018 be set aside; - b) Civil Appeal No. 24 of 2018 be re-instated and heard, determined inter parties on its merits; - c) Costs of the application be provided for;

The grounds of the application as contained in the affidavit of Justine Nakajubi Mufumbya, the Applicants' legal counsel are briefly that;

a. The Applicants instituted Civil Appeal No. 24 of 2018 from the decree of the Magistrate Grade One in Masaka Civil Suit No. 152 of 2012 dated 27th March 2018;

- b. The appeal was instituted with the help of the previous lawyers who had instructions but did not proceed with any further steps once the appeal was lodged; - c. Despite their interest in following up the case, it was difficult to follow up due to the Covid19 Pandemic; - d. The Applicants' counsel discovered in March 2021 that the appeal had been dismissed;

In his affidavit in reply, the 2nd Respondent Wakigiri Antonio opposed the application and stated that the Applicants' former counsel who knows the legal procedures on how to follow the appeal abandoned it and therefore the applicants had no interest and the application is an afterthought to re-instate the same. He further stated that by the time the appeal was dismissed, the limitation on transport means had been relaxed but the Applicants still failed to take any step to prosecute the appeal. The dismissal was in line with the legal procedures.

Counsel for the Applicants submitted that the inadvertent conduct of the Applicants' previous counsel and the failure to carry out their duty to the Applicants amounts to sufficient cause which warrant setting aside and reinstatement. Counsel relied on several decisions including *Banco Arabe Espanol vs Bank of Uganda SCCA No. 8 of 1998* to argue that the inadvertence of counsel can constitute sufficient reason to extend time.

#### **Consideration of the application;**

This application was brought under *Section 98 of the Civil Procedure Act* 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 of justice or to prevent abuse of the process of the court.

Whether the Applicants have adduced sufficient cause for the grant of the application;

Court in *Kibuuka v Uganda Catholic Lawyers Society & 2 Ors (Misc. Application NO.696 of 2018* cited the case of *The Registered Trustees of the Archdiocese of Dar es Salaam vs* *The Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR* discussing what constitutes sufficient cause where the court had this to say:- "*It is difficult to attempt to define the meaning of the words "sufficient cause". It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant*."

In the Kenyan authority of *Gideon Mosa Onchwati (supra)* reliance was made on the Supreme Court of India case of *Parimal vs Veena* which attempted to describe what was "Sufficient cause" when it observed that:-

Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

I associate with the observations above and the definition of the term sufficient cause which seeks to protect a diligent and active litigant who has not acted negligently.

In the instant case, the Applicants claim that their former lawyers were negligent in prosecuting the appeal despite the Applicants interests in the appeal, which led to its dismissal.

Civil Appeal No. 24 of 2018 was filed on the 28th day of March 2018 according to the Memorandum of Appeal. It was dismissed in accordance with *Order 43 Rule 14 of the Civil Procedure Rules* upon failure of the Applicants to take any steps towards prosecuting the appeal.

The Applicants claim that they were interested in the appeal but the inadvertence of their counsel led to its dismissal.

I am alive to the principle that mistake/negligence of counsel should not be visited on the client *(Banco Arabe Espanol versus Bank of Uganda SCCA No 8 of 1987).* Justice Wilson M. Musene in the case of *Matovu Charles Kidimbo vs Lukwata Yusuf MA No.40 of 2017* held that, "*whereas it is true it has been held in a number of cases that mistake of counsel should not be visited on the litigant, the question is how long should a litigant hold on the mistake of his/her advocate...it would be understandable if the delay was say between one month to six months, it would amount to abuse of court process if one is allowed extension of time after a delay of a whole year or two years…"*

In the instant case, the Applicants' appeal was dismissed for want of prosecution upon establishing that the Applicants had not taken any step towards prosecuting the appeal for over two years. The Applicants adduced a copy of the receipt for payment of instruction fees to their former lawyers. This evidence does not prove that the Applicants took any steps towards prosecuting the appeal after instructing their lawyers.

The Applicants further seek to rely on the circumstances surrounding the Covid19 Pandemic to claim that they were prevented from following up on the appeal. I find this to be an afterthought considering that the Applicants had two years before the pandemic to prosecute the appeal but never did so. Even then the appeal was dismissed in December 2020 after the Pandemic restrictions had been relaxed.

It is trite that litigation must come to an end *(see Brown v Dean [1910] AC 373, [1909] 2 KB 573)*. This matter commenced in 2012 and the Applicants have not adduced any sufficient evidence to prove that they have been diligent in prosecuting the appeal.

I therefore find that the Applicants cannot rely on mistake of counsel to obstruct the administration of justice.

This application bears no merits and is hereby dismissed with costs to the Respondents.

I so order.

Dated at Masaka this 12th day of November, 2021

**Signed;**

**Victoria Nakintu Nkwanga Katamba**

**Judge**