[2024] UGHC 437

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. APPLICATION NO.11 OF 2022

(*Formerly Masindi High Court Misc. Application No. 18 of 2022*) (*Arising from Masindi High Court Civil Suit No. 002 of 2016*)

#### HOIMA AGRICULTURAL CENTER LTD::::::::::::::::: **CONTRACT STREET**

### VERSUS

#### KAHOORA DIVISION LOCAL GOVERNMENT::::: **::::::RESPONDENT**

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

## **Introduction**

- $[1]$ The Applicant brought this application under S. 82 CPA, O. 46 r. 1(b) & 8, 0.52 CPR seeking the following orders: - $a)$ The order dismissing Masindi High Court Civil Suit No. 2 of 2016 on 10/8/2020 be reviewed, set aside and **Masindi High Court Civil** Suit No. 2 of 2016 reinstated for hearing inter party. - $b)$ Costs of this Application be provided for. - $[2]$ The application is premised on grounds enumerated in the Notice of motion supported by the affidavit of Mr. Kajuma Ashiraf Swaleh, the director of the Applicant, dated $24/2/2022$ . Briefly they are; - a) That the Applicant is aggrieved by the order of court dismissing **C. S** No.2 of 2016 entered by court on $10/8/2020$ under 0.17 r.6 CPR for having taken no step for a period of two years by either party with a view of proceeding with the suit. - b) That the Applicant took steps to have C. S No.2 of 2016 prosecuted within a period of two years preceding the dismissal order entered on 10/8/2020. - c) That the dismissal order entered on $10/8/2020$ in C. S No.2 of 2016 was made on account of some mistake or error apparent on the face of the record.

- d) That the dismissal was entered during the pendency of Misc. Application No.5 of 2016 filed on 12/2/2016 for unconditional leave to defend C. S No.2 of 2016 in which the Applicant filed submissions on $12/2/2018$ . - e) That it is fair and equitable that the application be allowed.

Counsel for the Applicant, Mr. Kasangaki Simon submitted that the Application was served on the Respondent on $22/4/2022$ as per the affidavit of service on record deposed by Irumba Robert and no affidavit in reply was filed by the Respondent. That the Application is therefore not contested.

- $[3]$ Counsel further submitted that by way of a summary suit, the Applicant sued the Respondent vide Masindi High Court Civil Suit No. 002 of 2016 for recovery of an outstanding sum of Ugx 50,000,000/=. That the Respondent filed Masindi High Court Misc. Application No. 05 of 2016 for unconditional leave to appear and defend **Masindi High Court Civil** Suit No. 2 of 2016 and the same was fixed for hearing on the $16^th$ March **2018.** That in response to the application, the Applicant filed an affidavit in reply and written submissions in opposition to **Masindi High Court** Misc. Application No. 05 of 2016 but the Respondent did not pursue this application and to date it has not been determined. - $[4]$ It is evident that **C. S No.2 of 2016** was dismissed during the pendency of Masindi High Court Misc. Application No. 05 of 2016 in the absence of the Applicant (Plaintiff) for want of prosecution without notice. It is this dismissal order that the Applicant seeks to set aside under review on the ground that he could not take steps to prosecute the summary suit before disposal of Masindi High Court Misc. Application No. 05 of 2016. - $[5]$ Counsel submitted that dismissal of the head summary suit with a pending application for unconditional leave to defend was an error apparent on the face of the record justifying reinstatement of the suit and disposal of the Application No. 5 of 2016 on the merits. He relied on the authority of Abdul Ssozi Vs Post Bank Uganda Ltd, CACA No. 12 of 2020 in which the Court of Appeal held that **0.36 CPR** provides for a summary procedure for disposal of cases at the High Court and Magistrates courts and that the procedure is meant to facilitate speedy disposal of cases. Unlike in ordinary cases, a defendant sued by summary procedure does not have an automatic right to defend the case. The right to defend is only granted if

court is satisfied that the defendant has a credible or arguable defence. He concluded his submission that where a defendant applied for unconditional leave to defend, the head summary suit cannot be disposed of while there is a pending application for unconditional leave to defend.

- $[6]$ The law under **S.** 82 of the **CPA** permits any person aggrieved by a decree or order of a court to apply for review of the Judgment to the Court that passed the Judgment, that Court may make such orders as it deems fit. This right is further saved under O.46 rule 1 of the CPR which, for purposes of this matter, allows an aggrieved person who 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, to apply for a review of the Judgment to the Court which passed the decree or made the order. - $[7]$ According to the authority of Edison Kanyabwera Vs Pastori Tumwebaza, SCCA No.6 of 2004, the Supreme Court of Uganda held that a "mistake or *error apparent on the face of the record"* must be an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifestly clear that no court would permit such an error to remain on the record. - $[8]$ It is noted that the Respondent's counsel filed submissions on 12^th February, 2019 but this was in violation of **0.18 r.1 CPR** on the "Right to begin" without leave of court. The so called submissions filed by counsel for the Respondent for consideration in the Application for leave to file a defence without leave of court were therefore inconsequential in nature. The filing of such submissions without leave of court and thereafter abandoned on the file cannot be taken as a step towards the prosecution of the suit. A step towards prosecution of the suit would for example, be an application for a hearing date of the suit or for the abandoned application for leave to file a defence. This was not the case in the instant suit. - $[9]$ 2ndly, in the instant case, the record also show that the Applicant via **Misc.** Application No.9 of 2021 sought for orders to set aside or vacate the same in **C. S No.2 of 2016** of which the same applicant is seeking this court to review. In my view, I would think that the present application is merely intended to circumvent the ruling and orders in Misc. Application No.9 of 2021 which was dismissed and court had thereby left the Applicant

with one option, to bring a fresh suit though subject to the law of limitation. If Counsel for the Applicant felt dissatisfied or aggrieved by the dismissal in Misc. Application No.9 of 2021, he ought to have considered an option to appeal or review its orders if he felt inter alia, that there was a mistake apparent on the face of the record or otherwise but not to file the present application which duplicates **Misc. Application** No.9 of 2021. In brief, this Application amounts to an abuse of court process because the issues raised in this Application were raised or could have been raised and disposed of in Misc. Application No.9 of 2021. Abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established, See A. G. and Anor Vs James Kamoga and Anor, SCCA No.8 of 2004. In the instant case, it is apparent that the Applicant's intention is to persistently harass the Respondent with one application after the other in the same court.

$[10]$ In conclusion, I find that this application has no merit and it is accordingly dismissed with no order to costs since the Respondent did not participate.

Dated at Hoima this $22^{nd}$ day of March, 2024.

**Byaruhanga Jesse Rugyema JUDGE**