[2024] UGHC 1157

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

**MISCELLENOUS APPLICATION NO. 0005 OF 2022** (Formerly Masindi Misc. Application No. 77 of 2022) (Arising out of Civil Suit No. 12 of 2019)

#### 1. ATUGONZA FRANCIS

2. KASAIJA MUSTAFA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. NATIONAL FORESTRY AUTHORITY 2. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **RULING**

- The Applicants brought this application under S.98 CPA, O.9 r.18 $[1]$ and 0.52 rr.1. 2 & 3 CPR for the following orders: - The order made on 15^th March, 2022 dismissing H. C. C. S. No. $(a)$ 12 of 2018 for non-appearance of parties be set aside and H. C. C. S. No. 12 of 2018 be restored, heard and disposed of on merits. - (b) Costs of this application be in the cause.

The application was supported by an affidavit deposed by **Atugonza Francis,** the $1^{st}$ Applicant, where in the grounds of the application are contained and was opposed by the affidavit in reply deposed by Ndagije Judith, an officer of the $1^st$ Respondent.

## Background.

The Applicants instituted Civil No. 12 of 2018 against the $[2]$ Respondent for a declaration that their ancestral customary land measuring approx. 2471 hectares at Rwempunu - Nsozi L. C. I, Kyangwali Sub-County, Hoima District appropriated by the $1^{st}$ Respondent/Defendant did not form part of Bugoma Central Forest Reserve and therefore, sought for an order for vacant possession directing the 1^st Respondent/Defendant to remove

Environmental Police Force and Uganda Peoples Defence Forces on the land.

- On the $24/9/2019$ and $21/1/2020$ when the suit was called for $[3]$ Counsel hearing. Mr. Tugume Moses. for the Applicants/Plaintiffs addressed court that the parties agreed to open boundaries of the suit land to ascertain the extent of trespass on the forestry land if any and the survey was to be conducted by $28/2/2020$ . The matter was adjourned to $12/3/2020$ for receipt of the survey report and for further directions of court. - On $29/11/2020$ , in the presence of both Counsel for the $[4]$ Applicants/Plaintiffs and the 1^st Respondent, Mr. Wanyama who held brief for Counsel for the $2^{nd}$ Respondent/Defendant, court directed and or ordered thus:

"This suit was filed for today upon a deserved urgency raised by the $2^{nd}$ Defendant as per their complaint contained in a letter dated $8/9/2021$ and filed in court on $9/9/2021...$ since the matter was filed in 2018, no scheduling has ever taken place and no witness statements are on record. In view of the above, let parties file a joint scheduling memorandum by $19/12/2021$ and file witness statements by $28/1/2022$ , and matter for mention on $15/3/2022$ at 10:00am.".

On $15/3/2022$ neither the parties nor their respective Counsel were present in court and as a result, the suit was dismissed for non-appearance of parties under **0.9 r.17 CPR.**

- $[5]$ As a result of the above, on $13/5/2022$ the Applicants filed the present application seeking for reinstatement of the suit on grounds as contained in the affidavit in support of the application which are to the effect that: - The Applicants and their Counsel did not appear in court $(a)$ when the suit was called for hearing on $15/3/2022$ due to the **Miscellaneous** fact that there $were$ interlocutory applications arising out of H. C. C. S. No. 12/2018 that were still pending in court and the Applicants' understanding and

what they had been advised by their defence was that the applications would be disposed of first before reverting to the main suit.

- Counsel for the Applicants had inadvertently noted in the $(b)$ diary the date of $16/3/2022$ as the date for mentioning the main suit but that nevertheless, they are still interested in prosecuting and completing the suit on the merits thus brought this application without any inordinate delay. - The 1^st Respondent opposed the application on the grounds that $[6]$ the Applicants were aware of the hearing date of the suit as $15/3/2022$ because they served the 1^st Respondent's lawyers with a copy of the summons for directions for filing of a Joint scheduling memorandum and Witness statements indicating the hearing date as $15/3/2022$ . That the 2^nd Respondent, despite being duly served with this application did not file any affidavit in reply. - During the hearing of the application, Mr. Ojambo who appeared $[7]$ as Counsel for the $2^{nd}$ Respondent on the other hand addressed court that the 2^nd Respondent did not file an affidavit in reply and submissions because in principle, they did not oppose the application for reinstatement of the suit.

## Preliminary objection.

1. Competency of the $1^{st}$ Respondent's affidavit in reply.

- Counsel for the Applicants submitted that the 1^st Respondent's $[8]$ affidavit is improperly before court for having been filed in court outside the statutory 15 days and without first obtaining leave of court thus contravened O.49 r.2 and O.5 CPR. In the premises, he prayed that this court strikes out the $1^st$ Respondent's affidavit in reply for having been filed out of time without leave of court and find the application unopposed and grant it with costs to the Applicant. - In reply, Counsel for the $1^{st}$ Respondent submitted conceding that $[9]$ the 1^st Respondent's affidavit in reply was filed outside the

statutory 15 days but that the delay was because the application was served on the $1^{st}$ Respondent while Counsel in personal conduct of the matter was on maternity leave and only attended to the application upon her return to office. That therefore, this court should exercise its discretion under S.98 CPA and enlarge time and validate the $1^{st}$ Respondent's affidavit in reply to the Secondly, that negligence to file the affidavit in application. reply in time and failure to seek leave of court was Counsel's fault and should not be borne by the $1^{st}$ Respondent.

- [10] As rightly submitted by Counsel for the Applicants, under 0.49 **r.2** read together with **O.5 r.1 and O.8 r.2 CPR,** I find that a reply or defence to an application must be filed within 15 days' failure of which puts the affidavit in reply out of time and since the affidavit in reply in this application was filed outside time it is improperly and therefore leave of court, without incompetent before this court, see Senyondwa & Anor vs Nakitto [2019] UGHCLD-11 and Kananura Donati vs A. G. & 2 ors H. C. M. A. No. 28 of 2015 unreported. - [11] The $1^{st}$ Respondent's argument that the delay in filing the affidavit in reply was because the application was served on the $1^st$ Respondent while Counsel in personal conduct of the matter was on maternity leave would only be good ground in an application by the $1^{st}$ Respondent for enlargement of time for late filing of an affidavit in reply under **O.51 CPR** which application the $1^{st}$ Respondent ignored to file. The same apply to the $1^{st}$ Respondent's argument that negligence to file the affidavit in reply in time should not be borne by the $1^{st}$ Respondent. The case of Sabiiti Kachope & 3 ors vs Margaret Kamuje, S. C. Civil Application No. 31 of 1997 is very clear. It is only in applications for extension of time where a mistake or negligence of the Applicants' Counsel may be accepted as a proper ground for granting the relief. In this case, there has been no application for extension of time. - [12] In the premises, I find the $1^{st}$ Respondent was served the application on $16/5/2022$ and filed an affidavit in reply on

$\overline{4}$

14/6/2022 outside the statutory 15 days, without first obtaining leave of court thus rendered the affidavit in reply improperly and incompetent before this court liable for being struck out of the record.

- [13] As a result of the above, the Applicants' affidavit in support of the application stand unopposed and since the $2^{nd}$ Respondent is not opposed to the application for reinstatement, I find that the negligence of Counsel to inform the Applicants/Plaintiffs and his failure to attend court on the date fixed for hearing of the suit could have been a result of the mix up of dates by Counsel and in exercise of discretion, this court grants the application. The Applicants' interests should not be defeated by the mistakes and lapses of his Counsel. - [14] The application is in the premises accordingly granted. The order made on 15/3/2022 dismissing H. C. C. S. No. 12 of 2018 for non-appearance of parties is accordingly set aside and the suit reinstated for hearing on merits, but with no order as to costs regarding this application.

Dated at Hoima this 13^th day of December, 2024.

Byaruhanga Jesse Rugyema **JUDGE**