Waiswa & Another v Jinja City Council & 5 Others (Miscellaneous Application 202 of 2022) [2024] UGHC 623 (5 July 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# HIGH COURT OF UGANDA AT JINJA

## **MISCELLANEOUS APPLICATION NO. 202 OF 2022**

# (Arising from Civil Suit No. 20 of 2022)

### **WAISWA JAMIR**

### (Suing through his lawful Attorney

NAKATO FAITH) ::::::::::::::::::::::::::::::::::::

## **VERSUS**

#### 1. JINJA CITY COUNCIL

- 2. JINJA MUNICIPAL COUNCIL - 3. BHARJ SURJIT SINGH - 4. JINJA CITY LAND BOARD - 5. JINJA DISTRICT LAND BOARD

6. THE COMMISSIONER LAND REGISTRATION ............ RESPONDENTS

# BEFORE HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA RULING ON PRELIMINARY OBJECTION

#### **Background**

This an application by Notice of Motion brought under Section 98 of the CPA, Order 1 rules $10(2)$ , (4) and (13) of the Civil Procedure Rules for orders that;

- a. The $2nd$ and $5th$ Respondents be added as Defendants in Civil Suit No. 20 of 2022 as their presence is necessary to enable court to effectually and completely adjudicate upon and settle all questions involved in the head suit. - b. That the 4th Respondent be struck out as a defendant in Civil Suit No. 20 of 2022 as it is a non-existing entity with no capacity to sue and be sued. - c. That the costs of this Application be in the cause.

### **Grounds for the Application**

The grounds of the Application are contained in the Application and supporting Affidavit of Nakato Faith the lawful Attorney of the Applicant which briefly are;

a. That the applicant is the equitable owner of part of land comprised in Plots M23A and M23B at Ani Yali Amanyi Road at Masese 11 Cell Jinja City Council.

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b. That the Applicant sued the 1st, 3rd, 4th and 6th Respondents vide Civil Suit No. 2022 seeking for among other reliefs a declaration that he is the rightful equitable owner of the above described land.

c. That the 2nd and 5th Respondents should be added as defendants in Civil Suit No. 20 of 2022 as their presence before this Honorable Court may be necessary in order for this court to effectually and completely adjudicate upon and settle all questions involved in the head suit.

d. That the 4th Respondent be struck out from the head suit as it is not a legal entity which can sue and be sued.

# 3rd Respondent's Reply

Mr Surjit Singh Bharj the 3rd Respondent in his Affidavit in Reply dated 24th August, 2022 averred:

a. That it is not true the Applicant is a sitting tenant on the suit land as the said land is free of human occupation, use and is uninhabited.

b. That the head suit from which the instant Application arises abated and the Application is not properly before court.

c. That the Applicant took out summons for directions 89 days after the closure of pleadings, the last of which was a Written Statement of Defence filed by the 3rd Respondent on the 14th day of April, 2022 way out of the 28 days provided for under the law and the same was brought to the attention of Court.

d. That the 3rd Respondent has been advised by his lawyers that the instant Application is not tenable in law for seeking to substitute a non-existent party (Jinja City Land Board- 4th Respondent) with an existing entity (Jinja District Land Board $-5$ th Respondent) and also for seeking to add a non-existing entity (Jinja Municipal Council-2nd Respondent).

e. He further states that the Head suit (C. S No. 22/2022) was filed contrary to the Plaintiffs earlier suit (Misc. Application No.224 of 2020) which was dismissed under order 9 rule 22 of the Civil Procedure Rules which precludes him from filing a fresh suit under Rule $23(1)$ of the same order.

f. That further, the Head suit from which the instant Application arises is consequently nonexistent legally and which accord the instant application the same status.

# **Affidavit in Rejoinder**

The applicant's lawful Attorney in her Rejoinder averred;

a. That in rejoinder to paragraph 3 of the Affidavit in Reply, of the 3rd Respondent, the Applicant states and confirms that the Applicant is the sitting tenant, in occupation and possession of the suit land which he uses for farming and or growing of crops.

b. That in reply to paragraph 4 of the 3rd Respondent's Affidavit in Reply, the head suit has not abated and she's informed by her lawyers that the Applicant has taken essential steps and the head suit can only abate when no essential steps have been taken by the Applicant and it is dormant.

c. That the Applicant has taken essential steps through his lawyers to wit the head suit has been mediated before a court accredited mediator and mediation closed.

d. That in further rejoinder to paragraph 4, the Applicant rejoins and states that the 3rd Respondent was served with a mediation summary of the Applicant on the 1st day of April, 2022 putting him on notice that the matter will be mediated. e. That when the mediation hearing notices were issued for the 10th day of June 2022, the 3rd Respondent filed his mediation summary upon the Applicant and that the 3rd Respondent attended the mediation sessions and his lawyers for the period before the mediation was concluded.

f. That in further rejoinder to paragraph 4 and as advised by the Applicant's lawyers, the 3rd Respondent by filing his mediation summary and by attending the mediation sessions, the 3rd Respondent had consented to the mediation and cannot turn around and state that no essential steps had been taken by the Applicant rendering the head suit to abate.

g. That in rejoinder to paragraph 5 of the 3rd respondents Affidavit in Reply, the Applicant has been advised by his lawyers that essential steps were taken to wit the mediation of the head suit, the instant Application for adding parties and the head suit cannot abate where essential steps were taken by the applicant and that it is not dormant.

h. In rejoinder to paragraph 6, the Applicant has been advised by his lawyers that a party/Plaintiff with leave of court can strike out any of the Defendants, can sue two parties if he is in doubt which party to sue and further that the 2nd

Respondent is a body corporate as the law under which it was established has never been amended.

i. That in rejoinder to paragraph 7 of the 3rd Respondent's Affidavit in Reply, the Applicant is not aware of Miscellaneous Application 224 of 2020 and has never appointed any person to act as his lawful attorney for the same.

j. That in rejoinder to paragraph 8 of the of the 3rd Respondents Affidavit in Reply, the Applicant rejoins that the head suit has never abated, essential steps are being taken and that the instant Application from which it arises is valid for all intents and purposes.

### **Representation**

The Applicant was represented by Counsel Kyevago Edward while the 3rd Respondent was represented by Counsel Juma Kinviri and Godfrey Malinga.

## **ISSUES**

1. Whether Civil Suit No.20 of 2022 from which the instant application emanates abated?

### **Determination of Court**

When this Application came up for hearing. Counsel for the 3rd Respondent raised a preliminary objection that the Applicant did not take out summons for directions in the head suit and therefore the head suit had abated. That the reason for the abatement was because summons for directions were taken out by the Applicant 89 days after the last reply in non-compliance with Order XIA of the Civil Procedure Rules.

He submitted that courts have held Order XIA of the Civil Procedure Rules of 2019 to be mandatory. The Plaintiff is required to file his summons for directions within 28 days and not 89 days as it is in the instant case. The 3rd Respondent's Counsel further stated that this was brought to the attention of court vide a letter dated 25th May, 2022 which stated that the suit abated under Order $Xl(A)$ (6).

That the plaintiff in this case (Applicant) filed summons for Directions dated 19th July. 2022 and from the calculation from the filing of the last pleading being the Written Statement of Defence that was filed on the 14th April, 2022, there was no other pleading thercafter. That the time to file a reply to the Written Statement of Defence accordingly lapsed on 28th March, 2022. Counsel for the 3rd Respondents in his submissions further argued that the 28 days envisaged by the law for filing summons for directions started counting from 28th March, 2022 and therefore summons for directions should have been taken out by the Applicant by 25th April 2022 but instead they were filed on 19th July,

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while interpreting the implications of Order XIA rules 2 and 6, Hon Lady Justice Olive Kazarwe Mukwaya stated that;

"It is this court's opinion that the intention of the framers of order XIA rule 1 of the Civil Procedure Rules 2019 was to mitigate the delays and inefficiency brought on by the actions of officers of court and the parties in civil proceedings. In order that these rules achieve the desired objective, a holistic and judicious approach to their application should be adopted."

In this instant case, the Applicant's matter was referred to mediation which both parties attended. It appears that the Applicant waited for mediation to end after which he took out summons for directions.

The crux of the 3rd Respondent's objection is that the Applicant ought to have taken out summons for directions as mandated by the law the mediation process notwithstanding. His argument is that mediation does not qualify as an exception under O. XIA (4) of the CPR. I am not in agreement with the submissions of the 3rd Respondent in this respect. Mediation is step aimed at possibly disposing of a legal dispute. Therefore, in order to speed up the trial instead of going back and forth, I shall not employ Order XIA as a curtail to bar the Applicant from prosecuting his matter under the guise of not taking out Summons for Directions. This order should be applied by courts on a case by case basis and where a party has exhibited his intention to prosecute his case, then failure for the party to take out summons for Directions within 28 days should not be used as a ground to extinguish his intentions.

I therefore overrule the preliminary objection raised by Counsel for the 3rd Respondent and find that Civil Suit No. 20 of 2022 did not abate. In any case, the Plaintiff following the failure of the mediation took out summons for directions on 19th July, 2022, a clear indication that he is interested in prosecuting this case.

Hon. Lady Justice Faridah Shamilah Bukirwa Ntambi. JUDGE.

Ruling delivered on ...................................

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