[2024] UGHC 780


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0044-2024** 5 **(ARISING FROM HCT-05-CV-CS-0107-2011)**

### **KARIGYE ERIC AND 26 OTHERS ---------------------------------- APPLICANTS**

### **VERSUS**

**ATTORNEY GENERAL ---------------------------------------------- RESPONDENT**

10 **BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

### **REPRESENTATION**

The Applicants were jointly represented by M/s Bashasha & Co Advocates and

15 Advocate Allan Kwatampora holding brief for Advocate Kaganzi Lester from M/s Kaganzi & Co Advocates, while the Respondent was represented by State Attorney Ritah Kalembe from the Attorney General's chambers.

### **BACKGROUND**

20 This application was brought by notice of motion under Section 33 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71, Order 9 Rule 23 and Order 52 Rules 1 & 3 of the Civil Procedure Rules SI 71-1, seeking orders that;

1) The order dismissing Civil Suit No.0107 of 2011 be set aside and the suit be

- 25 reinstated and heard on its merits. - 2) Costs of this application be in the cause.

The application was supported by affidavits deponed by the 1st Applicant, on his behalf and on behalf of the other 25 Applicants, and another deponed by

30 Advocate Kwikiriza Ronald from M/s Kaganzi & Co Advocates. The application

was opposed through an affidavit deponed by Senior State Attorney Kanyago Anna from the Attorney General's chambers – Mbarara Regional Office.

### **GROUNDS**

- 5 The grounds of the application are as follows; - 1. The Plaintiffs/Applicants and their counsel were prevented by sufficient cause from appearing when the suit came up for scheduling. - 2. The Plaintiffs/Applicantstook all necessary steps to prosecute the matter and are very interested in the determination of the case on its merits. - 10 3. That as directed by Court when the matter last came up for hearing, the Plaintiffs/Applicants generated and filed in Court a duly signed Joint Scheduling Memorandum, however the same had not been put in the Court file. - 4. That the suit is a matter of great importance to the Plaintiffs/Applicants and - 15 it is just and equitable that it be heard and determined on its merits. - 5. It is just and equitable that the Application be allowed and the prayers sought granted. - 6. No injustice will be suffered by the Respondent if this application is allowed and the remedies sought, granted. - 20

### **SUBMISSIONS**

The parties proceeded by filing written submissions. The Applicants' submissions were filed on 23rd May, 2024, while the Respondent's submissions were filed on 1 st July, 2024.

## **Applicants' submissions**

Counsel framed two issues for determination;

- 1) Whether the Applicants have proved sufficient cause for the reinstatement of Civil Suit No.0107 of 2011? - 30 2) What remedies are available to the parties?

Regarding the first issue, it was submitted that unlike a suit dismissed for want of prosecution under Order 17 Rule 5 of CPR which cannot be reinstated as the dismissal creates a final decree, a suit dismissed for abuse of Court process under Section 17(2)(a) Judicature Act can be reinstated under the inherent powers of

35 the Court since there is no final decree created by the dismissal **(see: HAJJI IDI**

**LUBYAYI KISIKI VS NALUMANSI IMMACULATE & 3 OTHERS HCMA No.1428 of 2022).** And that a suit dismissed for non-appearance of the Plaintiff under Order 9 Rule 22 of the CPR can be reinstated under the specific provision of order 9 Rule 23(1) CPR since the dismissal does not create a final decree.

Counsel relied on **NYAIKA SAMUEL VS ADMINISTRATOR GENERAL & 5 OTHERS HCMA No.0051 of 2021** for the definition of "sufficient cause" as the burden placed on a litigant by Court to show why a request should be granted or an action excused; and that the main test for reinstatement of a suit is whether the 10 Applicant honestly intended to attend the hearing and did his best to do so, the nature of the case and whether there is a prima facie defence to that case.

Counsel further cited **MAYANJA YAKOBO & OTHERS VS KAYONDO JAMES SSENDI HCMA No.3351 of 2023** for grounds of reinstatement of a suit as: the 15 application must show sufficient reason; the administration of justice requires that the substance of all disputes should be investigated and decided on their merits; where an applicant instructed a lawyer in time, his rights should not be blocked on grounds of the lawyer's negligence and a vigilant applicant should not be penalised for the fault of his counsel.

Counsel submitted that the 1st Applicant did not attend Court on 19th January, 2024 owing to information availed by their lawyer who had also relied on information from the Court clerk to the effect that the learned judge would not be at the station on that day. That all the same, the Applicants' lawyer went to 25 the Deputy Registrar's chambers that day to have the matter adjourned, only to

get information that the matter had been dismissed.

It was submitted that the Applicants had been attending Court sessions diligently and they even hired a second law firm M/s Kaganzi & Co Advocates to expedite 30 the fixing and hearing of their suit that the Applicants had complied with all Court directives including filing a Joint Scheduling Memorandum, witness statements and the re-evaluation report.

Counsel further argued that the main suit concerns proprietary rights in trees owned by 27 people facing a risk of expropriation of their trees without compensation.

5 Reading the second issue, counsel prayed for costs of the application and relied on **ADAM RWANYARARE VS ENGANO MILLERS LTD HCCS No.020 of 2017** for the position that a successful party is entitled to costs. Counsel prayed for the application to be granted.

### 10 **Respondent's submissions**

Counsel cited **EDIRISA KANONYA & ANOTHER VS ASUMAN NSUBUGA & OTHERS MISC APPLICATION No.373 of 2022** for the guiding factors in reinstatement of a suit *inter alia* to be; proving sufficient reason for inability to take a particular step in time, that administration of justice necessitates that the 15 substance of all disputes should be decided on merit, and that a vigilant applicant should not be penalised for the faults of his counsel. Counsel contended that in this case, a balance has to be struck between the concept of sufficient reason warranting reinstatement and the concept of inordinate delay. That the Applicants and their lawyer failed to take reasonable steps in 20 prosecution of their suit, which had been part of the backlog pending before this Court.

Counsel argued that the unnamed Court clerk, who is not named by the Applicants, is not the official spokesperson of Court, and that there is no 25 evidence of a formal communication from Court to Advocates and other Court users to the effect that the trial judge would be indisposed on 19th January, 2024. And that the Applicants are guilty of inordinate delay in prosecuting Civil Suit No.0107 of 2011 and causing financial loss to government by dragging on the suit for close to 13 years. Counsel prayed for the application to be dismissed with 30 costs.

#### **DETERMINATION**

In Principle court orders have to be adhered to and a High Court has power to prevent abuse by curtailing delays as is provided in section 17 (2) of the 35 Judicature Act.

I have perused the court file and find that the salient facts related to this matter are that

- 1. HCT-05-CV-CS-0107-2011 from which this application arises was filed on 5 - 5 July 2011. prior to its dismissal on 19 January 2024, it had been in the system for 13 years. - 2. On 8th May 2017 the applicants filed an amended plaint in HCT-05-CV-CS-0107-2011 (see amended plaint on court record) - 3. In the amended plaint in HCT-05-CV-CS-0107-2011, the plaintiffs averred 10 that they owned plantations in a forest reserve , but no licence or document was attached from National Forest Authority to confirm rights In a forest reserve. - 4. The plaintiffs have many times not appeared in person in court to prosecute their case. - 5. On 13-04-2023 Mr Kangye Eric the 1st 15 applicant and their lawyer where in court when court ordered that a joint scheduling memorandum should be filed by 1st June 2023. The court order to file the joint scheduling memorandum was not adhered to by the parties. ( see paragraph 20 of the affidavit in support) - 20 6. On 08-06-2023 the court made another order that the parties file a joint scheduling memorandum by 18th August 2023 and the case was fixed for scheduling on 29th August 2023. The court order to file the joint scheduling memorandum was again not adhered to by the parties. - 7. On 29th August 2023 the court made another order that the parties file a joint scheduling memorandum by 13th 25 October 2023 and the case was fixed for scheduling on 26th October 2023. The court order to file the joint scheduling memorandum was again not adhered to by the parties. (see paragraph 24 of the affidavit in support) - 8. On 26th October 2023 the court made another order that the parties file a joint scheduling memorandum by 14th 30 December 2023 and the case was fixed for scheduling on 18th December 2023. The court order to file the joint scheduling memorandum was again not adhered to by the parties. (see paragraph 26 of the affidavit in support) - 9. On 18th December 2023, the court made another order to file a joint 35 scheduling memorandum. The court adjourned the matter to 19 January

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2024 on last adjournment, with a warning that of no step is taken the case may be dismissed. (see paragraph 28 of the affidavit in support)

10. On 19th January 2024, when the matter came up no plaintiff was in court and no advocate was in court for the plaintiffs. The court then dismissed 5 the suit under Section 17(2) of the Judicature Act and Order 9 Rule 22 of the Civil Procedure Rules ( see paragraph 16 of the affidavit in reply)

The issue I have determine is whether sufficient reason has been shown for nonappearance of the applicants / plaintiffs in court on 19th January 2024 to justify 10 the court to set aside the order dismissing HCT-05-CV-CS-0107-2011.

It is trite that any person when mandated by law has a right to file a suit for courts consideration. It is the primary responsibility of the plaintiff to pursue his or her case, this means that the plaintiff has a duty to attend court even when 15 he or she has a lawyer, this is the reason as to why order 9 rule 22 of the Civil Procedure Rules makes reference to none appearance of the plaintiff as a reason that shall lead to the dismissal of the suit.

The applicants have not given a convincing reason for non-appearance in court on 19th 20 January 2024, when the case was dismissed. When a case is cause listed, it is imperative that the parties appear in court with their lawyers. It is not appropriate for a plaintiff to disregard of a cause list issued by court.

I have considered the fact that the applicants herein have had a history of not 25 adhering to court orders to file the joint scheduling memorandum, which paints a picture of parties that are not serious about pursing their matter in court.

I have also considered that the applicants are claiming rights in a forest reserve, yet they have not attached anything on their pleadings to show the right they 30 have in the forest reserve.

Given that the case was filed in 2011, which is 13 years back, and furthermore that on the hearing date the plaintiffs and their lawyers were not present in court and have not given a convincing reason for their absence , I find that this is not

a deserving case for the court to exercise its discretion to set aside its dismissal order made on 19 January 2024. $\overline{a}$

In conclusion, I order that the application is dismissed.

$\mathsf{S}$

对政策 ......................................

NSHIMYE ALLAN PAUL M. **JUDGE** 28-08-2024

$10$

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