[2024] UGHC 881

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT HOIMA

MISC. APPLICATION NO. 102 OF 2023 (Arising out of C. S No. 23 of 2019)

1. JOHN KATURAMU 2. NAOME KOOJO **3. ADAM NSAMO 4. ABIGAILE BALIKENDA 5. HAFUSA GULYETONDA 6. BAGUTATIRE ABSUL 7. YEYERI NYAKATURA 8. BANTU MUSTAFA** 9. KAKOOZA KABYANGA CHARLES 10. FR. ROSTICO ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### UGANDA NATIONAL ROADS AUTHORITY ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- This Application was brought under Section 98 of CPA, Section 33 of the $[1]$ Judicature Act, O.9 r. 22 & 23, O.52 r.r.1 & 2 CPR for orders that; - a) The order dismissing HCCS No.023 of 2019 be set aside and the suit be reinstated and heard/determined on its merits. - b) Costs of the Application be provided for. - The application is by Notice of Motion and supported by the affidavits of $[2]$ Kawino Gloria, the counsel who was in personal conduct of HCCS No.023 of 2019 and Hafusa Gulyetonda, the 5^th Applicant who deponed on behalf

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of all the Applicants. The Application is opposed by the Respondent through the affidavit in reply Bruce Nahamya, a Legal officer with the Respondent.

# **Background**

- The Applicants/plaintiffs sued the Respondent/defendant vide Land Civil $[3]$ Suit No.23 of 2019 for inter alia, trespass to land, unlawful compulsory acquisition of the suit land, compensation for the suit land, general damages, and costs. The defendant filed a defence on the 31^st day of May 2019. The matter was later scheduled for hearing on 17^th day of June 2022 but on this due date, neither the plaintiffs nor their counsel were present in court. As a result, the defendant's counsel applied for dismissal of the suit and court obliged by dismissing the suit for want of prosecution. - The Applicants contend that they were prevented by "sufficient reason" $[4]$ from attending court on the day the suit was dismissed. That their lawyer who conducted the case at the time, Ms Kawino Gloria, was unable to appear because she was sick and she did not inform the Applicants of her inability to attend court on the said hearing date, to enable them appear for themselves. That their lawyer acted negligently when she failed to follow up and find out what transpired on the day the suit was dismissed thus were let down by her negligence.

## **Counsel Legal Representation**

- The Applicants were represented by Mr. Sam Eyotre of M/s Eyotre & Co $\left\lceil \frac{r}{2} \right\rceil$ Advocates, Kampala while the Respondent was presented by Mr. Mwebembezi Kenneth of UNRA, Directorate of Legal Services, Kampala. Both counsel filed their respective submissions for consideration of court in the determination of this application. - Counsel for the Applicants submitted that C. S No. No.23 of 2019 was $[6]$ dismissed for non-appearance of the Applicants and their counsel but that the Applicants are still interested in pursuing their matter to its logical conclusion. That the Applicant's counsel neither attended court nor

informed the Applicants of the hearing of the matter thus a mistake or negligence which should not be visited on the innocent litigants and/or Applicants.

Counsel for the Respondent in reply submitted that there is no evidence $[7]$ adduced to prove that counsel in personal conduct of the matter was sick. That the reason of negligence of counsel is a mere excuse by the Applicants who were not vigilant in following up their case. 2ndly, that the Applicants and the Respondent agreed to meet at the suit land in order to verify the Applicants' claim but none of the Applicants turned up for the meeting thus a clear indication of lack interest in the matter.

# **Determination of the Application**

The term "sufficient cause" was in the case of Nabatanzi Vs Binsobedde $\mathbb{C}$ (1991) ULSR 79, defined to constitute the following; it depends on the circumstances of the case but must relate to the inability or failure to take a particular step in time, See also The Registered Trustees of the Archdiocese of Dar es Salaam Vs The Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR. In Boney M. Katatumba Vs Waheed Karim Civil Application No.27/2007 (SCU), court observed thus;

"What constitutes "sufficient reason" is left to the court's unfettered discretion. In this context the court will accept either a reason that prevented an applicant from taking the essential steps in time, or other reasons..."

The facts and circumstances of each case must afford sufficient ground to $[9]$ enable the court to exercise its discretion for the reason and whenever the court is to exercise its discretion, it has to do so judiciously. In other words, the conduct of the parties, for example, whether or not, a party has been grossly negligent, careless, reckless or palpably indifferent in prosecuting the case, would be some of the considerations court may take into account.

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- [10] In the instant case, the reasons given for failure to attend court is illness of the Applicants' counsel who also failed to inform the Applicants about the hearing date and her inability to attend court on the due date. - [11] **Firstly**, counsel for the Respondent contended that there was no proof the sickness of the counsel in form of medical treatment notes. However, as was held in Crown Beverages Vs Stanbic Bank Uganda Ltd, Misc. Application No.181 of 2005, Yorokamu Bamwine, J. as he (then was) held that it is too much to expect any form of ill health to be a subject of hospitalisation. In view of the foregoing, I recognise the fact that not every sickness must have medical treatment notes. The counsel for the Applicants however admitted to her being negligent in the failure to inform her clients and/or the Applicants of the hearing date and her inability to attend court. I find it was a huge blunder on the part of counsel not to inform her clients, the Applicants of her sickness and her inability to attend court on the due date and the Applicants' duty to attend court during her absence. In Phillip Keipto Chemwolo & Anor Vs Augustine Kubende [1986] KLR 495 (CAK), Court observed thus;

"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer a penalty of not having his case determined on its merits."

- [12] 2ndly, counsel for the Respondent also contended that the Applicants agreed to have a meeting at the suit land with the defendant officials but the Applicants failed to appear thus a clear lack of interest in their case. In the first instance, this amounts to adducing evidence from the bar as the same is not reflected in the Respondent's affidavit in reply on record. In addition, there no evidence to show that there was indeed, an agreement to meet at the suit land and have the plaintiffs/Applicants' matter verified at the suit land. - [13] In the circumstances of this case, the administration of justice require that the substance of all disputes be investigated and decided on their merits. Errors and lapses should not necessarily debar a litigant from the pursuit of his or her rights. Unless the other party will be greatly prejudiced, and cannot be taken care of by an order of costs, hearing and determination of

disputes should be fostered, see Banco Arabel Espano Vs Bank of Uganda SCCA No. 8/98.

- [14] In the instant case, this court is satisfied that the Applicants were prevented by sufficient cause/reasons from attending Court, i.e serious blunder on the part of their advocate. The interests of justice in the circumstances of this case, require that the order of dismissal of the Applicants' case be set aside. - [15] In the premises, the order dismissing HCCS No.023 of 2019 is hereby set aside on condition that the Applicants pay the costs of this Application. The suit is to be fixed for hearing expeditiously.

Dated at Hoima this 12^th day of July, 2024.

**Byaruhanga Jesse Rugyema** JUDGE.