[2023] UGHC 392

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **MISCELLANEOUS APPLICATION NO.137 OF 2022**

# **(ARISING FROM CIVIL APPEAL NO.02 OF 2021)**

# **MPANGA CHRISTOPHER::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

# **KIGOZI CHRISTOPHER::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This Application was brought under Section 76 of the Civil Procedure Act Cap 71, Order 52 Rules 1, 2 and 4, Order 43 Rule 16 and Order 44 Rules 1 and 2 of the Civil Procedure Rules SI 71-1 seeking orders that;

- 1. The order dismissing Civil Appeal No.02 of 2021 for want of prosecution be set aside. - 2. Civil Appeal No.02 of 2021 be readmitted and fixed for formal hearing.

The Application was supported by an affidavit deponed by the Applicant, wherein he states as follows, that;

- 1. He instituted an appeal vide Civil Appeal No.02 of 2021 in this Court. - 2. The appeal was fixed for hearing on 20th September 2021 but when it came up for hearing, the Respondent prayed that the file be returned to the lower Court for execution whereof, the file was duly sent back. - 3. The Appeal was again fixed for hearing on 28th February 2022 at 10.00am however, the Applicant was informed that Court had lost a senior staff member and the matter would not be heard.


- 4. The Appeal was then fixed for hearing on the 25th April of 2022 however, His Worship Twengoirwe Joshua, in the lower Court had fixed a hearing concerning a notice to the Applicant to show cause why execution should not issue. - 5. The Applicant consulted his lawyers Kawanga and Kasule Advocates who in turn informed him that they had written to the Deputy Registrar informing him of the circumstances surrounding the file and that they were waiting for a response. - 6. The Applicant's lawyers had also requested the Deputy Registrar to forward the file to High Court for purposes of the Appeal. - 7. When the Applicant proceeded to Court on the 25th of April 2022, he was informed by the Clerk that the Judge had adjourned the matter to another date which was to be communicated. - 8. He did not receive any further communication on the status of his Appeal but was only shocked when he was later served with taxation hearing notices and bill of costs on 28th June 2022. - 9. He informed his lawyers who were also not aware of the circumstances and they advised him to proceed to Court to find out what happened to the Appeal. - 10. The Applicant later established that the Appeal had been dismissed on the 30th of May 2022, however, he had not received any communication regarding his Appeal prior to the dismissal.

An affidavit in reply was deponed by the Respondent and he stated as follows, that;

- 1. The Application is frivolous, defective and an abuse of Court process. - 2. The Appeal was fixed for hearing for 20th September 2021 however, the Appellant never served him with the memorandum of Appeal and It was by chance that he attended Court despite the non-service. - 3. The Appellant applied for stay of execution in the lower Court vide Miscellaneous Application No. 40 of 2020 which was dismissed and he later made another Application in the same Court vide Miscellaneous Application No.122 of 2021 albeit having already been tasked to apply for stay of execution in the Appellate Court. - 4. In absence of any other order, it was within the Respondent's rights to apply for execution.


- 5. The Applicant was duly represented and his lawyers ought to have diligently followed up on issues concerning the Appeal. - 6. The Applicant has not shown sufficient reason to warrant reinstatement of the Appeal.

In rejoinder, the Applicant stated as follows, that;

- 1. Without his knowledge or causation, the Appeal was dismissed. - 2. From the record of proceedings, it is clear that on 28th February 2022 and 25th April 2023, the Applicant was in Court for his Appeal. - 3. The Respondent went ahead to engage the Deputy Registrar to tax the bill of costs well knowing that the Parties had agreed that the Appeal should first be heard. - 4. Counsel for the Applicant duly filed hearing notices for 30th May 2023 however, the same were never forwarded to the Deputy Registrar or served on any party. - 5. The Respondent was in Court on 28th May 2022 and 30th May 2022 but he never bothered to inform the Applicant or his lawyers.

### **Representation.**

The Applicant was represented by Kawanga John of M/S kawanga and Kasule Advocates while the Respondent was represented by Kaliba Associated Advocates and both Parties filed written submissions.

### **Submissions for the Applicant.**

Counsel submitted that to have the appeal reinstated, the Applicant had to prove sufficient cause. Counsel cited the case of Roussou versus Ghulam Hussein and another, SCCA. No.09 of 1993.

Counsel submitted that it was the duty of the Court clerk to communicate the next adjourned date. Counsel submitted that the last communication from the Court was on 24th April 2022 and the 16th May 2022. Counsel further submitted that at all times, the Appellant intended to appear when the matter was called for hearing.


### **Submissions for the Respondent.**

Counsel submitted that the Applicant failed to provide sufficient reason to warrant reinstatement. Counsel submitted that the allegations levied against the Court clerk on failure to notify the Applicant of the Court hearing date are baseless and ought to be ignored because they do not amount to sufficient reason.

Counsel submitted that the Applicant was not vigilant in prosecuting the Appeal and that the Applicant only learnt of the dismissal after he had been served with taxation hearing notices. It was then submitted that the Applicant bares the burden of extracting hearing notices and serving them and not the Respondent.

Having carefully considered the affidavits and submissions for both Parties, I now proceed to determine this Application.

### **Determination of Application.**

For an appeal that was dismissed for non-appearance to be reinstated, an Applicant must prove sufficient cause which resulted to the non-appearance. (See: *Order 43 Rule 16* of the *Civil Procedure Rules*).

Sufficient cause entails a situation where a party has not acted in a negligent manner or where a party cannot be alleged to have not been acting diligently. (See: *Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers' Society & 2 Others, Miscellaneous Application No. 696 of 2018.*)

In *Joseph Sengendo & Anor Vs Semakula Muganwa Charles & Anor. HCMA. No.167 of 2011,* it was held that the test is whether the applicants honestly intended to be present at the hearing and did their best to attend but were prevented by sufficient cause from doing so.

The Applicant's main contention is that when the matter was called for hearing, neither the Applicant nor his lawyer was aware because the Clerk did not communicate the hearing dates. It is also contended by the Applicant that his lawyer duly filed hearing notices that contained the date but the hearing notices were never forwarded to the


Deputy Registrar. On the other hand, the Respondent contends that the Applicant was not vigilant in prosecuting his Appeal and he only remembered to prosecute the same after he was served with taxation hearing notices.

I have heard an opportunity to peruse the entire Court record. It is my observation that the Applicant filed hearing notices however, I note that the hearing notices were never sealed nor signed by the responsible Judicial officer to date and there is no record that any hearing notices were ever extracted or served.

It is my considered opinion that the circumstances above support the assertion that the Applicants were never aware of the hearing dates. The situation is also not helped by the fact that at the last hearing where the Applicant was present, the matter was adjourned to a date that was never communicated despite the fact that the adjournments were at the instance of the Court.

Be that as it may, the fault does not entirely rest on the Court, the Applicant was duly represented and Counsel for the Applicant was under a duty to follow up on the case, especially in extracting the hearing notices, which Counsel omitted to do. In light of the circumstances, I am of the opinion that the litigant should not be punished for the lapses and errors of Counsel or the Court. (See: *The Executrix of the estate of the late Namatovu versus Noel Grace Shalifa, SCCA. No.08 of 1988 for the proposition that lapses and errors on the part of Court and Counsel should not be visited on an innocent litigant*).

The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors or lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered. (See: *Banco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22 by the Supreme Court of Uganda*)


I also note from the Court record that prior to the adjournment and the subsequent dismissal, the Applicant was always present in Court which shows that he is interested in prosecuting his Appeal.

It is my observation that the Respondent's lawyer was aware of the proceedings and diligent in the handling of his client's Case. Though it is not ideally his duty to ensure that the Appeal is well handled, it is my opinion that it would have been ideal that he informs the Applicant's Counsel of the status quo of the Appeal. This would greatly prevent such Applications and prevent wasting of Court's and clients' time as well as Costs. I also observe that this Application was brought without inordinate delay.

On consideration of the above, it is my finding that the Applicant has furnished sufficient reason and circumstances warrant reinstatement of the Appeal.

# **Conclusion and orders.**

- 1. The Application succeeds. - 2. The order dismissing HCCA. No.02 of 2021 is set aside. - 3. The Appeal is reinstated and shall be heard and determined on its merits. - 4. Costs of the Application shall follow the outcome of the Appeal.

I so order.

Dated and delivered electronically at Masaka this 02nd day of October 2023.