Tinkasimire and Another v Nakalema (Misc Application No. 002 of 2011) [2012] UGHC 420 (7 March 2012)

Full Case Text

**IN THE HIGH COURT OF UGANDA AT MASAKA Misc Application No. 002 of 2011 (Arising from Misc. Application No. 002 of 2007) (Arising Misc. Appl. No. 11 of 2010) (Arising From Civil Suit No. 56 of 2005) Tinkasimire Joseph Tinkaziimird Edward I:::::::::::::::::::::::: Applicants**

## **VERSUS**

**Nakalema Phina ::::::::::::::::::::::::::: Respondent**

## **BEFORE: HON JUSTICE V. F, MUSOKE-KIBUUKA, RULING**

This is an application under order 9 rule 23, of the Civil Procedure Rules. It is by motion supported by an affidavit of Tunkasiimire Joseph, the first applicant.

The applicants seek an order setting aside the dismissal of Misc. Application No. 002 of 2007 so that Misc. Application 002 of 2007 is re-instated.

The applicant's reason, contained in both his Notice of Motion and the affidavit of Tunkasiimire Joseph, in paragraph 7, is that they were not served with any hearing notice for the date on which the application

WaS dlSmissed under order 9 rule 22 Procedure Rules. of the Civil

Indeed, Order 9 rule 27, provides for two instances under which the court may exercise it's discretion to re instate a suit, such as this one, dismissed under order 9 rule 22 or any other rule under that order. They are:-

- that summons were not dully served; and - that the applicant was prevented by any sufficient cause from attending court when the suit was called.

The affidavit of Mr. Tinkasimire in paragraph 7, just mentions one reason for the failure to attend court on 16th August, 2011. He says that no hearing notice was duly served on the applicants.

However, the evidence on the record militates against Mr. Tunkasiimire contention. It shows that a hearing notice was served upon the applicants advocates, Messers Baryajuna Gibbs, Advocates, on 01.07.2011 some one month and half from the date of hearing appearing in August, 2011 the hearing notice, which was 16th The hearing notice was received by 2

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a' Wh° WrOte that he was receiving it on behalf 0 aryajuna, Esq. He stamped the duplicate copy now on the court record, with the advocate's own stamp.

Under order 5 rule 10, service may be effected upon the defendant in person or upon an agent of the defendant empowered to receive service. An advocate duly instructed is an agent for that purpose.

Learned Counsel, Mr. Baryajuna, submitted, or rather gave evidence from the bar, that the file had been ordered to be taken to Kampala by Lady Justice Kiggundu. I find no such evidence or record. What I find is that Misc. Appl. No. 22/07 had earlier on 24.02.2010, been dismissed by Lady Justice Kiggundu under order 9 rule 22 for the same reason of nonattendance by both counsel and his clients. The application was re-instated only to be dismissed again on 16th August, 2011, upon the same account. There must be an end to litigation.

It would amount misuse of court process if court were to reinstated this application again. The appUcants

and their counsel have demonstrated enough unseriousness before court with regard to the matter they themselves brought before court. They cannot be allowed to misuse court's process.

Accordingly, Misc. Application No. 02 of 2012 is itself dismissed. Costs re awarded to the respondent with regard to it.

**(Judge) 07.03.12**

**HIGH COT^T OF UGANDA**