Uganda Land Commission v Mahmud Bharwani and Another (Miscellaneous Application 1420 of 2021) [2023] UGHCLD 171 (17 February 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COPURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO 1420 OF 2O2I (Arising out of High Court Civil Suit No' 0256 of 2012)

## UGANDA LAND COMMISSION: : : : : : : : : : : : : : : : : : : : : : : : :APPLICANT VERSUS

## I. MAHMUD BHARWANI : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS 2. NATIONAL WATER & SEWERAGE CORPORATION

### BEF'ORE THE HON. JUSTICE TADEO ASIIMWE

### RULING

This is application brought under order 9 tule 23 and order 52 of the civil Procedure Rules (cPR). The applicant is seeking for orders that the dismissal of miscellaneous application no. 1898 of 2018 be set aside, the same be reinstated. The application is supported by ar affidavit sworn by Imaryo Barbarah, the secretary to the applicant. The I't respondent also filed an affidavit in reply on 6th December,202 I opposing the application. The 2'd respondent never replied to the application and the matter proceeded exparte against them.

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The grounds of this application are contained in the Notice of Motion and the affidavit in support but briefly that;

- 1- That the lst Respondent sued the Applicant and the 2d Respondent vide civil suit No.256 of 2012 for breach of a Lease Agreement. - 2-That on the 2010612013, the l't Respondent and the Applicant aentered a Consent Judgment in which it was agreed that the Applicant would compensate the I't Respondent with property andlor land of the same value as that of the suit property within the vicinity of KamPala CaPital CitY. - 3- That after entering the said Consent Judgment, it was later discovered that the said Consent Judgment was entered into by mistake and misrepresentation and therefore affected by vitiating factors. - O 4- That subsequently, on the 3011112018, the Applicant filed Misc. Applic. No. 1898 of 2018 seeking to set aside and/or review the Consent Judgment between the l't Respondent and the Applicant vide Civil Suit No.256 of 2012. - 5- That when the application came up for hearing on the 6/612019, the same was dismissed for want of prosecution. - 6- That that Applicant trusted its representation with its former lawyers M/S Kafee day of the hearing. ro & Co. Advocates w d ta on the

- 7-That the said lawyers never informed the Applicant or its offtcials of the date of the hearing of the said Applicant and that the mistake of the Applicant's former lawyers should not be visited on the Applicant. - 8- That there is sufficient cause and/or reason why the Applicant did not enter appearance in Court on the day of hearing of Misc. App. No.l898 of 2018. - 9- That the Respondents will not be prejudiced by the grant of this Application in so far as they will have an automatic right to reply.

- l0- If the order dismissing Misc. Applic. No.l898 of 2018 is not set aside, the Applicant will suffer irreparable loss and injustice in so far as it the Applicant will be condemned unheard yet its failure to appear in Court was not deliberate. - 11- That it is the interest of Justice that this Applicafion to be allowed.

In his affidavit in support of this application, the applicant deponed that on the 2010612013, the 1't respondent and the applicant entered a consent judgement in which it was agreed that the applicant would compensate the l't respondent with property and or land of the same value as that of the suit property with in the vicinity of kampala capital city. That after entering the said consent judgement, it was later discovered that the said consent judgement was entered in to by mis misrepresentation

and therefore affected by vitiating factors. That subsequently on the 30llll20l8, the applicant filed MA NO. 1898 OF 2018 Seeking to set aside and or review the consent judgement vide civil suit no. 256 of 20t2.

That when the suit came up for hearing on the 06.0612019, the same was dismissed for want of prosecution. That the applicant trusted its O representation with its former lawyers who did not appear on the day of hearing and that the lawyer did not appear on the day of hearing.

On the other hand, the respondent in his affidavit in reply deponed that this application is an abuse of court process and that this application was frled 2 years after which amounts to inordinate delay. That the application discloses no cause of action and that the applicant should have been vigilant enough to take steps by making an application for reinstatement in time.

o At the hearing of this application, the applicants were represented by Mr. GEORGE KAREMERA & Mr. TV/INOMUGISHA MUGISHA while the l't respondent was represented by Mr. JOSEpH KYAZZE and MR. NocHoLUS MWASAME. Both counsel filed written submissions which I shall consider.

counsel for the applicant in his submissions submitted at length relying on the case of Nicholas Roussos vs Gulamhussein Habib virani & at the applicant was Another, Civil Appeal No.9 of 1993 arguln(,

prevented from attending court by mistake of his counsel who did not inform the applicant of a hearing date and that the mistake of counsel should not be visited on a litigant who is not familiar with court processes. Further that the application pertain very gave issues since the consent was entered without consent of the Attorney General

In reply, the respondent raised a preliminary point of law arguing that this application is res-judicata since similar applications had been dismissed. He further submitted that the application is misconceived and that the applicant should have been vigilant enough to find out about court cases and their dates themselves.

I shall begin with the preliminary objection raised by the respondent that the application is res-judicata since previous similar applications had been dismissed.

To begin with, M. A no. 1420 of 2021 was dismissed for want of prosecution and eventually re-instated vide MA. 2486 of 2021 and a ruling delivered on 61512022, the reason this application is being heard again before this court. The same application was not determined on its merits but dismissed on a technicality. Therefore, it cannot be said to be res-judicata. Besides it was re-instated before this court to be heard on merits. The respondent's Counsel must have od the facts or , tl! the principle of res-judicata. derst

Therefore the preliminary objection is over ruled. I will therefore proceed to determine the application on its merits.

#### The Law.

Order 9 rule 23 under which this application was made requires the applicant to satisfy the court that there was sufficient cause for nonappearance when the suit was called on for hearing. Once sufficient cause is shown to the satisfaction of the Court, this rule makes it mandatory for the Court to make an order setting aside the dismissal upon such terms as to costs or otherwise as the court thinks fit.

The phrase "sufficient cause" that is normally used interchangeable with the phrase "good cause" has been explained in a number of authorities. In the cases of: *Mugo v Wanjiri [1970] EA 481 at page 483*, Njagi v Munyiri [1975] EA 179 at page 180 and Rosette Kizito v Administrator General and Others [Supreme Court Civil Application] No. 9/86 reported in Kampala Law Report Volume 5 of 1993 at page 4] it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

In Nicholas Roussos vs Gulamhussein Habib Virani & Another, Civil Appeal No.9 of 1993 (SC) (unreported), the Supreme Court attempted to lay down some of the grounds or circumstances which may amount to

sufficient cause. They include mistake by an advocate though negligent, ignorance of procedure by an unrepresented defendant and iilness by a party.

Courls have also established some tests to be applied when dealing with an application like this one. ln the case of National Insurunce Corporotion v Mugenyi and Company Advocates U|SU HCB 28 the Court of Appeal which was the apex court in Uganda at the time held that;

"The main test for reinstatement of a suit was whether the applicant honestly intended to attend the hearing qnd did his best to do so.

The above position of the Law was adopted in the case of Nakiride v Hotel International Ltd 1198ry 85 where Kalanda A. J. (as he then was) held that;

"In considering whether there was sfficient cause why counsel for the applicant did not appear in court on the date the application was dismissed, the test to be applied in cases of that nature was whether under the circumstances the party applying honestly intended to be present at the hearing and did his best to attend. It also important for the litigant to show diligence in the matter

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In this case , as can be ascertained from the preadings on record and submissions of both counsel, it is not in dispute that the applicant,s counsel was duly served by respondents and with no excuse chose not to appear in court when the matter was called for hearing. The applicant,s argument is that the negligence of counsel should not be visited on it as an innocent litigant.

As already stated in the case Nicholas Roussos vs Gulamhussein Habib virani & Another, civil Appeal No.9 of 1993 of cited by the applicants counsel, mistake of counsel was held to be one of the grounds that amount to sufficient cause and I agree with that position.

However, this position has confines least would give litigants and their lawyers an escape route to their laxity which would in turn be an abuse ofcourt process.

Orr,i, was expounded on in the case of Eternal church of God vs Kasoke (HCT-01-cv-MA-00r oF 2016 where court had this to say "the issue of not visiting counsePs mistake on a litigant in my view is a mere excuse by new Advocates to get themselves clients, the litigant just as his advocate needs to know the hearing dates of his/her case. Equity aids the vigilant as the maxim states. It is not only the duty of the o iti ts ou ttobe advocate to show up in court but the litigant

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vigilant and follow up their cases." I entirely agree with the above holding.

In this case, officials of the applicant themselves shourd have been vigilant enough to know the date for hearing of the case. There is no excuse for laxity whatsoever.

Further the applicant's submission regarding the illegalities in the consent judgement, is not sufficient reason as to why the applicant,s officials did not attend court when the application was called for hearing. I find the above argument not convincing enough to wanant a re-instatement of the matter.

Besides even when for some reasons which have been advanced for nonattendance of a party and counsel, it is not automatic to re-instate a matter. court ought to consider the time taken to make such applications. Unreasonable delay will ordinarily not be forgiven. The applicant must show some vigilance in prosecuting the matter.

o In this application, it took the applicant a period of over 2 years to file this application for re-instatement. That period in my view amounts to undue delay which is an abuse of court process. Litigation must come to an end. In this matter I find the applicant to be guilty of undue delay and the l't respondents who has been hording a Judgement since 2017 will certainly be prejudiced if this application is allowed.

In conclusion, I find no sufficient reason to warrant re-instatement of M. A NO. 1898 of 2018 for the reasons already given. This application is conse quently dismissed with costs.

\ o TADEO ASII

JUDGE 1712t2023.