[2020] UGCommC 159

| 1 | | |----|------------------------------------------------------------------------------------------| | 2 | THE REPUBLIC OF UGANDA | | 3 | IN THE HIGH COURT OF UGANDA AT KAMPALA | | 4 | (COMMERCIAL COURT DIVISION) | | 5 | MISCELLANEOUS. APPLICATION<br>754 OF 2020 | | 6 | (ARISING OUT OF HCCS NO. 612 OF 2015) | | 7 | CNOOC<br>UGANDA LTD<br>::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT | | 8 | VERSUS | | 9 | COMMISSIONER GENERAL URA:::::::::::::::::::::::::::::::::::::::::RESPONDENT | | 10 | BEFORE HON: JUSTICE RICHARD WEJULI WABWIRE | | 11 | RULING |

# This Application was brought under sections 82 and 98 CPA and Order 46 rules 1(10, 2 and 8 seeking orders that this court reviews its decision in HCCS 612 of 2015 and the suit be reinstated and further that costs of this Application be provided for.

The Application is supported by Affidavits sworn by Martin Mbanza, an Advocate in the employment of Birungyi Barata and Associates, who are Counsel for the Applicants. The grounds upon which it is based are stated in the said Affidavit in Support and a Supplementary Affidavit but briefly are that;

- On 22nd September 2015, the Applicant filed CS 612 of 2015 appealing against an assessment raised by the Respondents. The matter was consolidated with CS 864 of 2014 and CS 508 of 2015. - When the matters were fixed for scheduling on the 27th August 2017, it did not take off because the Judge had been transferred. That whereas CS 864 of 2014 was settled by the parties, CS 508 of 2015 was transferred to the TAT. - On the 16th November the respondent wrote to Court seeking audience to address court on its lack of jurisdiction over the matter. On the 7th September, the Applicants wrote to Court requesting for a hearing date. On the 17th September 2020, the applicant learnt that the suit had been dismissed, that they did not receive any notice to show cause why the suit should not be dismissed. - That the matter was not cause listed on the 7th August 2020 when it was dismissed. - That the matter was consolidated with CS 864 of 2014 and CS 508 of 2015 but it was handled differently. - That the applicant is aggrieved by the order of this court as it was issued erroneously and the respondents, without giving notice, issued Agency Notices and collected money from the applicants bank accounts held with Standard Chartered Bank and City Bank. That following issuance of the Agency Notices, the Applicant filed TAT MA 153 of 2020(arising from TAT MA134

of 2020) for an interim order to restrain the respondents from enforcement.

That it is in the interest of justice that the application is granted.

The Respondents contested the Application in an Affidavit in Reply deponed by Bakashaba Donald in which he averred that the Respondents would raise preliminary objections that this court has no jurisdiction to entertain this application and that the application contravenes the lis pendens rule and that the application is bad in law, frivolous misconceived and amounts to forum shopping.

That as a result of the Applicants inaction to have the matter heard after 2 years, the Respondents wrote to this court of 16th November 2019 requesting for the matter to be fixed for hearing and that owing to the applicants inaction , the matter was righty and lawfully dismissed on the 17th August 2020 for want of prosecution. That whereas there was an application for consolidation of the HCCSuits no. 864 of 2014, 508 of 2015 and 612 of 2015 the process was never effected and that consequently CS 864 was withdrawn while 508 was transferred to TAT and the same is pending hearing.

When the Application came up for hearing, the Applicants were represented by two Counsel, namely; Counsel Cephas Birungyi of Birungyi Barata Advocates and Ellison Karuhanga of Kampala Associated Advocates, while the Respondents were represented by Counsel Mwajuma Nakku Mubiru and Ronald Baluku Masamba of the respondents Legal Department. They addressed Court by oral submissions.

Counsel for the Respondents raised preliminary points of law which were heard but Court reserved its ruling and proceeded to hear the merits of the Application.

Counsel on either side addressed Court at length, first on the preliminary objections and then on the merits of the Application. I will address them in that order.

#### **Preliminary Objection**

#### **1) Jurisdiction**

The Respondents raised a preliminary objection regarding the jurisdiction of this court. They vehemently submitted about the lack of jurisdiction of this court over tax matters and more specifically over this application.

They submitted that this Court does not have Jurisdiction to entertain the Application since the dispute is within the precincts of the Tax Appeals Tribunal. That consequently in as far as this Honorable Court does not have that Jurisdiction to entertain matters relating to a tax dispute, it does not therefore have the Jurisdiction to entertain an Application to reinstate a tax dispute.

They cited the case of **URA V Rabbo Investments** CA 12/2004(SC)which is explicit on the issue of jurisdiction of the High Court over tax matters.

In my opinion, the contention about the jurisdiction of court over this application is premature and misconceived. At this stage, court is only concerned with establishing whether the application meets the prerequisites for review, which are;

- (a)Discovery of new and important matters of evidence previously overlooked by excusable misfortune. - (b)Some mistake apparent on the face of the record. - (c) For any other sufficient reasons, - But the expression 'sufficient' should be read as meaning sufficiently analogous to (a) and (b) above."

In the circumstances of this case, the contention regarding jurisdiction can only arise after the issue of review and that is in the event that the matter is reinstated.

**2) Contravention of the Lis pendens Rule.**

Counsel for the Respondents submitted that the Application contravenes the lis pendens rule (see **Section 6 of the Civil procedure Act**)

That on 17th September, the Applicant filed an Application in the Tax Appeals Tribunal vide **TAT Application No. 134 of 2020** in which all the matters in contention are the same, the parties are the same and the amount of money contested is the same as that in CS 612 of 2015, for which this Application for reinstatement is made. That this contravenes the lis pendens rule (**s.6 CPA)**.

They also submitted that the Application amounts to an abuse of court process and cited **Section 172 of the Judicature Act** which enjoins Courts, in the administration of justice, to as much as possible avoid multiplicity of suits.

They cited the case of **Springs International Hotel limited versus**

**Hotel Diplomat and Boney Katatumba, High Court Civil Suit No.**

**227 of 2011** in Court dismissed that suit for offending the lis pendens rule, to argue that the Application be dismissed.

In reply, Counsel Birungyi for the Applicants contended that the Respondents were only bent on denying the Applicants access to justice by stifling hearing of the matter, be it in the High Court or at the Tax Appeals Tribunal. That having extracted the orders dismissing the suit in the High Court, the Respondents also extracted an order dismissing the Application filed by the Applicants in the Tax Appeals Tribunal. That consequently the argument that the matter was in both Courts is not in good faith as the Respondents exhibited in Exhibit "G" attached to their Affidavit in Reply and are therefore are aware that the matter was dismissed at the Tax Appeals Tribunal.

The Applicants contended that the matter having been dismissed in this court, the Applicants sought intervention of the Tax Appeals Tribunal to address an administrative issue of Agency Notices and not the substantial dispute which had been dismissed in the suit at the High Court. That the issue of Agency Notices arose after the Main suit in the High Court had been dismissed. The Applicants case therefore was that it was not true that there was a cause of action in respect of the Agency Notices in the High Court.

That premised on the foregoing, the issue of multiplicity of suits and abuse of court process does not therefore arise. That neither the lis pendens rule nor the case of Springs International Hotels Ltd (supra) apply in the instant case because it is about reinstatement of the main suit so that it is properly transferred to the Tax Appeals Tribunal.

Counsel submitted that they were not seeking the matter to be heard in the High Court, but for it to be transferred to the Tax Appeal Tribunal rather than be dismissed. That this was their prayer and that they also found no merit in a tax payer being denied access to justice. – Submissions. Evidence from the Bar. Counsel Ellison Karuhanga for the Applicants, invoked Section 17 of the Judicature Act which mandates this Court with inherent powers to prevent abuse of processes of court and to ensure that substantive justice is administered without undue regard to technicalities, to argue that the Application is one that is worth being heard within the context of this provision and that for that matter, the case be reinstated and heard on its merits. That to deny the Applicants an opportunity to be heard, as the Respondents are bent on doing, is against the spirit of Section 17 of the Judicature Act and Article 126(2) (e) of the Constitution of the Republic of Uganda.

In rejoinder, Counsel for the Respondents submitted that exhibit "G" which was mentioned in the Respondent's Affidavit in Reply is a dismissal of an Application for an interim order, Miscellaneous Application No. 153 of 2020 arising out of TAT Main Application No. 134 of 2020 and not a dismissal of the main Application.

That TAT Application No. 134 of 2020 is still pending hearing by the Tax Appeals Tribunal and that so the argument that they are being locked out of court is not right. That there is no withdrawal order for the said Application as provided for under Order 25 Rule 1 for withdrawal of any case that is subsisting in Court.

That the prayers in the Application before the Tax Appeals Tribunal and those in the dismissed Civil Suit are the same, and hence the submission that this Application, which not only posed an abuse of court process but potentially exposed the concerned judicial officers to the danger of arriving at different and perhaps conflicting decisions in cases of the same facts offends the lis pendens rule.

**Whether the Application, when granted will occasion contravention of the lis pendens rule, and whether the Application is an abuse of Court process**.

Section 6 CPA which underpins the lis pendens rule states that;

**"No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed."**

### I will start by determining **whether the matter in issue in TAT MA**

### **134 of 2020 are directly and substantially in issue as those in CS 612 of 2015**.

I have had the benefit of perusing TAT MA 134 of 2020 and the Plaint in CS 612 of 2015.

The parties in TAT MA 34 of 2020 are CNOOC Uganda Ltd and the Commissioner General, URA, the particulars of the tax dispute are VAT and withholding tax and Paragraph 3 on the statement and reasons in support of the Application is in pari materia with paragraph 5(d) & (E) of the Plaint which stipulates the facts constituting the cause of action.

They both bear the same cause of action and seek the same remedies and are between the same parties. I have also established that indeed the application which was dismissed at the TAT was one for an interim order which sought to stop the Agency Notices. The main Application, TAT 134 of 2020, which is the one that bears similarities with 612 of 2015 is still live at the TAT.

Premised on the foregoing it is unequivocally illustrated that the two matters TAT MA 134 and CS 612 are similar.

### **Would the Application then contravene the lis pendens rule and amount to an abuse of court process?**

When TAT MA 134 of 2020 was filed, CS 612 had been dismissed on the 17th August 2020. At the time of filing TAT 134 therefore, there was no contravention of the lis pendens rule.

The Respondents case however is that should the dismissed case CS 612 be reinstated, then this would contravene the rule.

In my view, the lis Pendens rule is not to be applied mechanically. It is applied so as to give effect to the goal of avoiding irreconcilable decisions. But also most importantly it should not leave a litigant in limbo without locus to be heard whichever way.

It is worth noting that prior to this, the residual matters- CS 612 and 508, after the consolidation, were transferred to TAT but, for unknown reasons, CS 612 of 2015 remained within the system of this Court while CS 508 of 2015 was moved to the TAT. The files ought to have been moved together.

Had the consolidation and transfer orders been effected as ordered by Court, then the dismissal and the instant application would never have arisen in the first place.

Whereas therefore on the face of it the Application may be viewed as an abuse of the lis pendens rule, the peculiar context of this case , which I have already highlighted present a different conclusion that absolves the Applicant from abuse of process.

## **Whether there is an error apparent in the order for dismissal of HCCS 612 of 2015 and if so, whether order can/should be set aside**

#### **Submissions by Counsel**

Counsel Birungyi, for the Applicant, drew Courts attention to the fact that on the 16th November 2019, the Respondents wrote to the Registrar seeking a date to be heard on points that Court had no jurisdiction over the matter. That similarly, on the 7th September 2020, the Applicants also wrote to court seeking for directions in the same matter and on the 17th September 2020, they were informed that the suit had been dismissed on the 7th August 2020. That they were never served with Notice to show cause why the suit should not be dismissed yet the matter was consolidated with other subsisting matters, and further that the matter was not cause listed.

That it is for this reason that the Applicants sought to have the matter reviewed as it must have been dismissed in error.

Counsel submitted there was no indication under what Order the matter was dismissed but that they made the assumption that the order was made under Order 17 rules 5 and 6 CPR as amended by statutory instrument 33 of 2019.

They submitted that if this was the case, then there is ground for this Honorable court to review its decision based on the facts as stated in the Affidavit in Support and in the Supplementary Affidavit that steps had actually been taken by the Respondents to have the matter addressed. That as stated in the Consolidation order that;

"In the premises the applicant's Application is granted with each party to pay its costs because this suit is before 3 separate Judges, the file is sent to the Registry for consolidation of the physical file and to have the file reallocated to one of the Judges".

That the consolidation order confirms that under Order 17 rule 5 an action was taken to schedule, to mediate and to consolidate the suits. That further, an action was taken to get directions to transfer the file to the Tax Appeals Tribunal because the applicants could not move a file from the High Court to the Tax Appeals Tribunal with no Court order.

They drew Courts attention to exhibit "D" a letter dated 16th November, 2019 from the Respondents to the Registrar of the Court. The Respondents wrote seeking a hearing date for the matter. The letter is copied to counsel for the applicant, who they contend was therefore properly informed that the position was that the parties were waiting for directions of court.

They submitted that so in respect of Order 17 r 5 & 6 CPR, which provides that action should not have been taken by either party, not only were steps taken, but the dismissal should not have fallen within that rule.

Counsel was aggrieved by the fact that whereas it is the Respondents who had moved Court and were bidding Courts directions, it is the very Respondents who have now tried to take advantage of the Rule to say that there were no steps taken to have the matter prosecuted and that this was not done in good faith.

They cited the case **Bank of Uganda vs Ismail Damule and 1004 others Misc. Application No. 742 of 2016** in which Court stated that well as the Judge had the discretion not to award costs, not giving reasons for that action of not awarding costs was an error and that error was sufficient for the Judge to review the matter, to highlight the submission that in the instant case, want of prosecution was not clarified and under which order the matter was dismissed.

Counsel also cited the case of **Mera Investments versus Uganda Investment Authority, Misc. Application No. 114 of 2015** in which Court addressed dismissal that had also been under order 17 Rule 6 of the Civil Procedure Rules as well as jurisdiction of this Court. On Jurisdiction, it was held that the High Court is a court of unlimited Jurisdiction except in so far as it is limited by statute and the fact that the specific procedure is provided by law cannot operate to restrict the court's Jurisdiction.

On the aspect of proceedings under Order 17 r 6 CPR his lordship Justice Madrama J, as he then was, when reinstating a matter on review, held that

"…..in the very least the respondent's counsel ought to have notified the applicant's counsel. This is because the court did not move on its own motion but was moved by one of the parties who specifically invoked Order 17 Rule 6 in light of the recent communication between the parties I am inclined to invoke the inherent powers of the court which I hereby do and set aside the dismissal without commenting on the merits of the suit or the defense. The suit is hereby reinstated….".

This case **Mera (supra**) is however distinguished from the facts of the instant matter as in the instant case, none of the parties moved Court. In the instant case, Court moved suo motu.

They also cited the case of **Edson Kanyagwera versus Bastrori Tumwebaze and it is Civil Appeal No. 6 of 2004** in which it was held that absence of an affidavit of service constitutes an error or mistake on the face of the record.

In closing the Applicants submissions, Counsel Ellison Karuhanga summarized that the Applicants contention was basically that there was an error apparent on the face of the record in two respects, namely that the applicant was not served with the hearing notice, that this being a consolidated suit CS 612 of 2015 could not have been called on its own, that was an error to proceed with this matter in the absence of proceeding of the matters with which it had been consolidated. That for that to happen the consolidation would have to have been set aside.

That regarding dismissal for want of prosecution, for there to be a hearing, the applicant should have been served with a hearing notice, and that failure to be served with the hearing notice constitutes an error apparent on the face of the record. And further that Order 17 Rule 5 and 6 of the principal Civil Procedure Rules was amended by Statutory Instrument 33 of 2019 by substituting Order 17 Rules 5 and 6 in which now is included a provision that mandates dismissal only if no step is taken by either party with a view of proceeding with the suit for a period of 6 months after the mandatory scheduling conference.

They prayed that this Honorable court be pleased to review the order on the grounds that there are sufficient grounds, that it is a matter of substantial financial importance as the sum involved on the record is over UGX 46 billion in dispute and as stated earlier, the purpose is to bring the case to life and have it dealt with by this Honorable Court in the manner to have it transferred to the Tax Appeals Tribunal and that there would be no injustice whatsoever either to this court or to the respondents when that is done.

- In reply, the Respondents contend that well as an Application was filed for consolidation of High Court Civil Suit No. 612 of 2015, 868 of 2014 and 508 of 2015, the process of consolidation was never effected. That there was no consolidation. - That the physical consolidation did not take place and consequently, High Court Civil Suit No. 868 of 2014 was withdrawn by consent of both parties while High Court Civil Suit No. 508 of 2015 was filed afresh in the tax appeals tribunal and the same is pending hearing. The statement that the suit was filed afresh is however submission from the Bar. It is not averred by the party as at Paragraph 5 of the Affidavit in Reply, the deponent states that CS 508 was transferred to Tat and is pending hearing. He does not say that it was filed afresh. The two are procedurally different. - That due to the laxity and dilatory conduct of the applicant, Civil Suit No. 612 of 2015 was rightly dismissed for want of prosecution. - That the applicant then filed an Application in the Tax Appeals Tribunal based on the same facts and issues that are in contention as those in the dismissed Civil Suit No. 612 of 2015 which is sought

to be reinstated. That the said Application is still subsisting and has not been withdrawn from the Tax Appeals Tribunal.

That this Honorable court properly exercised its discretion to dismiss this suit as provided for under Oder 17 Rule 6.

That well as the applicant stated that the presumption is that the dismissal was under Order 17 Rule 5, it is on record that none of the parties were present when the main suit was dismissed and that it is a well-known principle of law that the court may on its own motion dismiss a suit for want of prosecution where no action has been taken by either party.

That the rules set out under Order 17 Rule 6 do not provide that the dismissal should be on a merit but a decision to dismiss is based on the rules and on general to delay in prosecuting a suit. That it has nothing to do with the merit of the case.

That the applicant has not furnished sufficient cause for failure to take steps for a period of over or close to five years and cannot justify this failure.

She cited the case of **Comtell Intergrater's Africa ltd versus National social security fund High Court Misc. Application No. 772 of 2016** in which Court stated that the steps to be considered as steps taken, must be those that are evident on the court record and that in the instant case there are none.

That well as the applicant claims to have taken steps to prosecute this matter, there is no evidence on record and the only evidence sought to be relied on is the letter of 7th September, 2020 which was written after this Application had been dismissed in August 2020.

Regarding the 6 months rule under the amended civil procedure Rules 33 of 2019 that action should not have been taken for a period of 6 months after closure of the mandatory scheduling conference, the Respondents contended that if the letter by the respondent of November, 2019 that is attached as annexure "D" of the Application was to be considered, then at the very least by July 2020, when the courts were opened for business, the Applicant should have been seen to take some action but he did not and is therefore guilty of dilatory conduct.

That section 98 of the civil procedure Act is not available for the Applicants in the instant case because the inherent power of court is exercised only where there is no specific remedy available, which is not the case in the instant case. That courts should be reluctant to exercise inherent power where a specific remedy exists. That the applicant has an alternative remedy of filing a fresh suit and has indeed exercised this option through filing an Application in the Tax Appeals Tribunal that is still subsisting and pending hearing.

The Respondents cited the case of **Kibuigumu Patrick alias Munakukama versus Aisha Muluji and Hassan Basajja Balaba Misc. Application No. 455 of 2014** in which an Application was found incompetent where the applicant had an alternative remedy and sought to rely on Section98

In rejoinder Counsel for the Applicants, while addressing the issue of jurisdiction of this court, contended that jurisdiction in this case, which is in respect to review of orders under the Civil Procedure Rules, lies with the judge who made the order. That the jurisdiction is strictly about the review and it does not concern itself with any other subject matter.

Regarding submissions that none of the parties was present at the time the order was extracted and at the time the order was heard, that then means that the order is defective because it says "at the hearing". That if there was a hearing at which neither the respondents nor the applicants were present then there is an error on the face of the record which warrants review of the order.

Contrary to the Applicants apparent contest to this courts mandate to proceed without notice to the parties to show cause why the matter should not be dismissed; under Order 17 rules 5 & 6 CPR, this court can on its own motion and without notice to the parties proceed suo motu. I hasten to add that whereas where Court opts to invite the parties to show cause why a matter should not be dismissed, notice is issued and the parties are expected to attend court, under Order 17 rules 5 and 6 CPR, by which Court proceeded, the right to audience is not as a matter of course. There is therefore a clear distinction where Court elects to proceed under order 17 r 2 CPR and when it proceeds under Order 17 r 5 & 6 ( as amended by SI33 of 2019) CPR as it did in the instance. In the instant case, Court moved suo motu and did not invite the parties for a hearing, and the Court's

minute on the record shows so. However, the Order that was extracted is worded in such a way that it implies that there was a hearing and attendance by the parties, whereas not. To that extent, that amounts to an error apparent on the face of the order in that regard.

Counsel for the Applicant contended that the law under which the matter was dismissed should have been mentioned in the order and that the omission to do so amounted to an error on the record and was therefore fatal.

The trial record states that the matter was dismissed for want of prosecution. The only provision of the law which allows for that is Order 17 rules 5 & 6 CPR. The record indicates as such.

None the less, the dismissal was in error as it was not compliant with prerequisites for dismissal or abatement stipulated under Order 17 r 5 & 6 ( as amended by SI33 of 2019) CPR.

On the contention that the Applicants did not take any steps to fix the matter for hearing, Counsel for the Applicant submitted that it is within the power of this court to cause-list matters and that well aware of the fact that the Respondents had taken a step, in their letter of 16th November 2019 to Court, to have the matter fixed, it would have been superfluous and busy bodying for the Applicants to do so as well

## **Resolution**

**S.82 of the CPA and O.46 Rule 1 of the CPR** spell out the law of review.

Section 82 of the Civil Procedure Act provides that;

- "Any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred or - By a decree or order from which no appeal is allowed by this Act, may apply for review of judgment to the court which passed the decree or order and the court may make such order on the - decree or order as it thinks fit." - **Order 46 Rule 1 of the CPR** sates as follows; - "(1) any person considering himself or herself aggrieved— - By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or - by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order." - In **Re-Nakivubo Chemis (U) Ltd (1979) HCB 12** Manyindo J, as he then was, held that; - "The three cases in which review of a judgment or orders is allowed - are those of; - (a)Discovery of new and important matters of evidence previously overlooked by excusable misfortune. - (b)Some mistake apparent on the face of the record. - (c) For any other sufficient reasons, - But the expression 'sufficient' should be read as meaning sufficiently analogous to (a) and (b) above."

In law, "mistake or error apparent on the face of record" refers to an evident error which does not require extraneous matter to show its incorrectness. It connotes an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment; see **Attorney General & O'rs vs. Boniface Byanyima HCMA No. 1789 of 2000, Levi Outa vs. Uganda Transport Company [1995] HCB 340.**

When dismissing CS 612 of 2015, this court noted as follows;

"Last step taken was WSD filed on 5/10/2015. No step has since then been taken to have matter prosecuted. Dismissed for want of prosecution. No order as to costs."

It now transpires, from the evidence of the documents filed by the parties and the submissions in this application, that the Respondents had moved Court, in a letter dated 16th Novembers 2019, addressed to the Registrar of this Court and copied to Birungyi Barata & Associates, seeking a date to be fixed for them to appear and address Court on the proposition that the case was improperly before this Court.

This letter, dated 16th November 2019 and marked "D" attached to the Affidavit in Support of the Application was filed with the Court Registry on the 18th November 2019. It was however never placed on the trial file and therefore never came to my attention on the occasion of the dismissal.

On the 17th August 2020, when the suit was dismissed, this court did not therefore address itself to the contents of that letter. Hitherto the trial file does not have the letter on the record. It only appears as an attachment to the Applicants pleadings in the instant application.

The Applicants further contended that the dismissal was improper for the reason that under the amended Civil Procedure Rules – Order 17 r 5 & 6 as amended by SI 33 of 2019, dismissal for want of prosecution is only possible if neither of the parties takes any steps with a view to proceeding, within a period of six months following closure of the mandatory scheduling conference.

Order 17 r 5 states as follows;

"Dismissal of suit for want of prosecution:

In any case not otherwise provided for, in which no application is made or step taken for a period of 6 months by either party, with a view to proceeding with the suit after the mandatory scheduling conference, the suit shall automatically abet and where the suit abets under sub rule 1 of this Rule the plaintiff may, subject to the law of limitation, bring a fresh suit".

In the case of **Nyamogo & Nyamogo Advocates vs. Kogo (2001) 2 EA 173** in which court considered whether an erroneous decision constitutes an error on the face of the record sufficient to permit review, when making a distinction between a mere erroneous decision and an error apparent on the face of the record Court held that;

"Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible."

Similarly in a more recent decision of **Lalwak Alex vs. Opio Mark (HCCA No.0058 of 2016),** Justice Stephen Mubiru observed that;

"The error and omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that court could have taken a different view of the matter. That Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law is not a proper ground for review."

It is not in dispute and both parties have averred in Affidavits deponed in support of their respective cases that schedule conferencing for Civil Suit 612 of 2015 had not taken place when it had been slated to happen and the suit has consequently never been through schedule conferencing.

When court dismissed the matter, it was oblivious of three critical things, namely; the letter of 16th November 2019 from the Respondents to the Court asking for the matter to be fixed for hearing, the consolidation order and the record of proceedings from which this court should have discerned that scheduling had not yet taken place.

The case was therefore dismissed before the prerequisites for dismissal under order 17 Rules 5 & 6 CPR were met, specifically mandatory schedule conferencing had not even taken place.

Dismissal was therefore premised on error for having been done prematurely under order 17 rules 5 and 6 CPR as amended by SI 33 of 2019 and also that evidence of the Respondents having moved court in November 2019 to grant a date to be heard was not taken into account.

This matter however poses peculiarities in the manner in which it has morphed in the court system, I am therefore constrained to comment on the circumstances that led to dismissal of HCCS 612 of 2015.

On the 17th August 2020, as part of the exercise to weed out inactive cases which clogg the court system and also in effort towards reducing the case backlog, Court moved suo motu under Order 17 rules 5 and 6 and dismissed Civil Suit 612 of 2015- CNOOC V URA, among several other cases which met the criteria, that is to say, cases for which no step had been taken to have the matter prosecuted.

Under Order 17 rules 5 & 6 CPR, this court can on its own motion and without notice to the parties proceed suo motu. I hasten to add that whereas where Court opts to invite the parties to show cause why a matter should not be dismissed, notice is issued and the parties are expected to attend court, under Order 17 rules 5 and 6 CPR, by which Court proceeded in the instant case, the right of audience is not a matter of course where court moves on its own. There is therefore a clear distinction where Court elects to proceed under order 17 r 2 CPR and when it proceeds under Order 17 r 5 & 6 ( as amended by SI 33 of 2019) CPR as it did in the instance.

In the instant case, Court moved *suo motu* and indeed proceeded to dismiss the suit without giving the parties audience to appear and show cause. The Court's minute on record in the trial file shows so. The facts of this case are distinguishable from those in the case of Mera **Investments V UIA, MA 114 of 2015** in which one of the parties, the Respondents in that case, had moved court. That said,

the Order which was extracted is worded in such a way that it implies that there was a hearing and attendance by the parties, whereas not.

The pitfalls regarding the way this matter has been handled could potentially occasion a miscarriage of justice for either party.

In the first place, one could argue that this court ought to have queried its own systems and interrogated its jurisdiction over this matter right from the onset, to wit; the physical consolidation of Civil suit 612 of 2015 with CS 508 of 2015 and CS 864 of 2014 which was later settled was not effected as directed by court on the 27/4/2017; transfer of CS 508 of 2015 alone to the TAT without CS 612 of 2015 yet it is a part of the consolidated residual matter, was irregular; the omission to have the Respondents letter of 16th November 2019 and the absence of the record of proceedings on the case file were administrative irregularities .

This matter had been fixed for schedule conferencing but on the day when the matter was to be scheduled, the Judge was transferred and the schedule conferencing did not take place. There is however nothing on the record of the file to show this.

One of the underlying mischiefs that specialized tribunals are intended to resolve is the opportunity they provide for expeditious disposal of cases, reduction of case backlog and mitigation of costs associated with litigation. It is therefore justified in all ways that the parties take advantage of this avenue for resolution of their dispute. The Court seized with original jurisdiction over tax matters is the tax Appeals Tribunal.

Whereas the mischief that is intended to be addressed by qualifying this Court's jurisdiction in matters such as the instant case, can never have been to close out litigants from accessing justice, the Applicants/Plaintiffs ought to have in the first instance initiated the suit at the TAT.

That said, the dismissal of CS 612 of 2015 was shrouded in case management irregularities and as have been highlighted these have now come to light. There are multiple errors on the record including the wording of the order itself.

Litigants should however not be locked out on account of errors which are not of their making but possibly of their Counsel and the Court system.

All the parties should therefore be given a fair opportunity to state their respective cases especially given that the factors that led to dismissal of 612 of 2015 were not the handicraft of either of the parties.

However, that said, judicial discretion cannot be exercised in vain, even if CS 612 of 2015 is reinstated, it is not in the right court. - see **URA V Rabbo CA 12of 2004**). This matter was however consolidated with HCCS 508 of 205 (vide MA 1153 of 2016 (arising from CS 868 of 2014 grated on the 27/04/2017) which is now before the TAT and according to Paragraph 15 of the Affidavit in Reply, is pending hearing.

The consolidation Order has never been set aside or reversed and so CS 612 of 2015 ad CS 508 of 2015 are for all intents and purposes remain consolidated and as such are one file for purposes of case management and disposal of the matter.

Finally, in view of the numerous irregularities on the file that culminated into the erroneous decision of dismissal of CS 612 of 2015 I do hereby set aside the said dismissal of civil suit 612 of 2015 and order that the matter is reinstated.

I am however mindful of the fact that the Applicants have a pending Application before the TAT whose cause of action and remedies sought are in pari materia with CS 612 of 2015. In the event, CS 612 of 2015 will be stayed pending the resolution of TAT Misc App 134 of 2020.

Costs shall abide the outcome of the main suit.

Delivered at Kampala by email to Counsel for the respective parties and signed copies for the parties placed on file this 6th day of November, 2020.

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## **RICHARD WEJULI WABWIRE**

**JUDGE**

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