[2023] UGCommC 259

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA ICOMMERCIAL DIVISION] MISC. APPLICATION NO. 718 OF 2023 ARISING FROM CIVIL SUIT NO.836 OF 2O2O

# BETTY MELISA NAKIBUUKA KYOBE: : : : ; : : : : : : : : : : : : : : : : : : : : : : :APPLICANT

#### VERSUS

## CENTENARY RURAL DEVELOPMENT BANK LTD

# DMNISTIFY AUCTIONEERS &

# HIGH COURT BAILIFFS: : : : : : : : : : : : : : 3 : : : : : : : : : : : : : : : : : : ! : : : :RESPONDENTS

## BEFORE: HON. LADY JUSTICE ANNA. B. MUGENYI

#### RULING

This Application was brought by way of Notice of Motion under section 98 of the Civil Procedure Act, Orders 5 rule l8 and 32 of the Civil Procedure Rules (CpR) for orders that the order of the court dismissing the suit for want of prosecution on the l}th /0112023 be set aside, Civil Suit No.836 of 2020 be re-instated, heard and determined on its merits and Costs of the suit be provided for.

The Application was supported by the Affidavit of Musigire Martin and opposed by the Affidavit in reply of Ruth Birungi, the I 't Respondents Legal Manager Litigation.

#### Background

On the 6rh of October, 2O2O the Applicant filed Civil Suit No. 836 of 2020 against the Respondent who filed their written statement of Defense. At the stage when the suit was set down for summons for directions before the Deputy Registrar, the Respondents filed an Application for leave to amend their written Statement of Defence and add a cross claim against the Applicant's husband which Application was duly granted by the court. The Respondents then filed their amended written Statement of Defense and subsequently filed an Application for leave of court to

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effect service of the Written Statement of Defense by way of substituted service. The Application for leave to serve by substituted service was set for hearing on the 16^th of January 2023. During the pendency of the suit, the Applicant filed their witness statements and trial bundle.

Court dismissed Civil Suit No.836/2020 on the 10^th of January 2020 for noncompliance with Court Orders as scheduling memorandum documents had not been filed contrary to the Courts directions.

# **REPRESENTATION**

The Applicant was represented by M/s LMN Advocates and the Respondent was represented by M/s S & L Advocates.

#### **SUBMISSIONS**

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The Applicant's Counsel submitted that they pray for the re-instatement of the dismissed Civil Suit 836/2020 as the said suit was still under the stage of pleadings; and that the Respondents had been granted an Application to amend their Written Statement of Defense, introduced a cross claim against the Applicant's husband and had sought to effect service of its pleadings through substituted service which Application was slated to be heard on the 16^th of January 2023. Counsel stated that when the matter was called up for a scheduling conference and mention on the 10^th of January 2023, the said Application for substituted service was still pending. He submitted that whereas the matter was dismissed for non-compliance with the scheduling conference directions, the Applicant could not conference since there was a third party being introduced by the 1^st Respondent.

Counsel for the Applicant further submitted that a matter can only be called for scheduling if the pleadings are complete and in the instant case the delay in hearing the main suit was occasioned by the Respondents who had not yet effected service on the Cross Defendant; and that the Applicant had even filed their witness statements and trial bundle in the main suit on the 15^th day of June 2021.

He submitted that this Court has inherent powers to re-instate a suit that had been dismissed for want of prosecution or non-compliance and cited the case of **Rawal** $v$ Mombasa Hardware Ltd [1968] Vol1 EA at page 392 in which it was held that 'in special circumstances of this case, the remedy provided for in which is now order 17 rule 5 that is of bringing a fresh suit was not intended to be exhaustive and the inherent jurisdiction vested in Court by Section 97 of the Civil Procedure Act was

not for that reason excluded' and stated that in this case it is Section 98 of the Civil Procedure Act.

$\mathbf{r}$

Counsel for the Applicant also cited the case of Standard Chartered Bank Uganda Limited v Ben Kavuya & Another 2006, Vol .1 HCB pg. 135 where it was held that 'It is stated law that a specific procedure, provision or remedy cannot operate to restrict or exclude the Courts inherent jurisdiction under Section 98 of the Civil Procedure Act which gives wide residual powers to Court to prevent and correct an injustice'. Counsel submitted that the wording of that section which has now been amended by Order 4 rule 4 of the CPR uses the word 'may bring a fresh suit' and that the word 'may' has been described in many jurisdictions to be merely discretionary and not mandatory. That it is a permissive word that allows the Plaintiff to either bring a fresh suit or apply for reinstatement.

Counsel for the Respondents submitted that on the 24^th of November 2022, Court issued directions for filing the Joint Scheduling Memorandum and all other necessary trial documents and the matter came up for mention on the 10^th of January 2023, six weeks after the directive had been issued and no Joint Scheduling Memorandum had been filed and on that basis Court dismissed the matter for want of prosecution. Further, that not filing a Joint Scheduling Memorandum in six weeks demonstrates no intention of the Applicant in prosecuting the matter. He cited the case of Kyabahwa Justus v China Hena International Group Co. Ltd Civil Suit No 721/2020 at page 10 where Justice Duncan Gaswaga stated that 'Court schedules are an important tool in assisting the Court to conduct its business in an orderly fashion. One should therefore ignore Court schedules at their own detriment. Judicial Officers should insist and also ensure that flaunting Court schedules without plausible explanation should attract consequences.

He submitted that the Application for leave to effect service through substituted service was overtaken by the dismissal and thus could not proceed. He further submitted that when a matter is dismissed for want of prosecution, the remedy for the Applicant lies in filing an Appeal or commencing a fresh suit but not in an Application for re-instatement. He cited the case of Musa Nsimbe vs Sentongo Kirizestom & 11 Other at page 5 where Court states 'The dismissal for want of prosecution thus seals off the matter and recourse can only be heard by the plaintiff to an appeal or commencement of a fresh suit subject to the law of limitation imposed by the law'.

Dup

In rejoinder Counsel for the Applicant submitted that under paragraph 11 and 12 of the Respondents' Affidavit in reply, the 1^st Respondent admits that the suit was still pending pleadings to effect service on the Cross Defendant Henry Kyobe and under Order 4 rule 4 a suit cannot be dismissed for want of prosecution if there is a pending Application by any party of the CPR as amended.

## **RULING**

$\overline{a}$

The Issue for determination by this Court is whether the order of dismissal of Civil Suit No. 836 of 2020 should be set aside and the suit reinstated.

It should be noted that Counsel for the Respondents in his submissions states that the main suit was dismissed for want of prosecution. On perusal of the Court record, I do not find this to be true as Court dismissed the suit on the $1^st$ of October 2023 under the Commercial Court Practice Directions for non-compliance with Court directions. Circumstances for the dismissal of suits for want of prosecution are squarely provided for under Order 17 rule 5 of the CPR and this case was not dismissed under the said provision.

Having said that, said, I will now go on to deal with the issue at hand. Section 98 of the Civil Procedure Act provides for the inherent powers of Court thus:

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

This provision gives Court the powers to, inter alia, exercise its discretion to set aside and re-instate dismissed Applications/suits provided they are aimed at meeting the ends of justice and preventing any abuse of court process.

In the case of Standard Chartered Bank of Uganda Ltd v Ben Kavuya and Barclays Bank (U) Ltd HCMA NO. 350/2006, it was held that: -

"... it is now settled that the existence of a specific procedure, provision or remedy cannot operate to restrict or exclude the Courts inherent jurisdiction under Section 98 of the Civil Procedure Act which gives wide residual powers to the Court to prevent or correct any injustice..".

In Rawal v Mombasa Hardware Ltd [1968] EA 392 which was cited with approval by the East African Court of Appeal sitting in **Kampala in Adonia versus** Mutekanga [1970] 1 EA 429 Spry VP held at page 432:

"There is no rule of law, as Mr. Kazzora implied, that inherent powers cannot be invoked where another remedy is available. The position, as I understand it, is that the courts will not normally exercise their inherent powers where a specific remedy is available and will rarely if ever do so where a specific remedy existed but, for some reason, such as limitation, is no longer available. The matter is, however, not one of jurisdiction. The High Court is a court of unlimited jurisdiction, except so far as it is limited by statute, and the fact that a specific procedure is provided by rule cannot operate to restrict the court's jurisdiction."

$\cdot\,,$

During submissions Counsel for the Applicant stated that the dismissed suit was still under pleadings and thus ought not to have been dismissed. Under Paragraph 6 of their Affidavit in support, they stated that the Respondents had filed for leave of Court to allow them effect service through substituted service and in paragraph 9 went on to state that while parties had not yet concluded the process of filing pleadings, Court dismissed Civil Suit No. 836 of 2020 for failure to comply with the timelines set by the Judge.

It should be noted that the Respondents did not dispute under paragraph 12 of their Affidavit in reply that there was indeed an Application for leave to serve the 1^st Respondent's Cross Claim by way of substituted service set for hearing on the 16^th of January 2023. They however only argued and stated that the said Application was overtaken by the dismissal of the suit on the 10^th of January 2023.

This clearly showed that the matter was still at the stage of pleadings and could not at this point proceed to a scheduling conference being held. This position ought to have been brought to the attention of the trial Judge during the hearing that led to the dismissal of the suit on the 10^th of January 2023. The fact that the said position was not brought to the attention of the trial Judge led to a miscarriage of justice to the Applicant as the suit was erroneously dismissed for failure to comply with Court directives.

Although I agree with the holding of Honorable Justice Duncan Gaswaga in Kyabahwa Justus v China Hena International Group Co. Ltd Civil Suit No 721/2020 cited by counsel for the Respondents, in relation to the facts of this case the Applicant had a plausible explanation for not filing their Joint Scheduling Memorandum as the case was still at the stage of filing pleadings. This Court is of the firm view that this is a special circumstance where the Court is clothed with the powers to invoke its inherent jurisdiction to set aside a dismissal and reinstate the main suit.

Therefore, in the interest of justice and in a bid for the Court to correct the error as explained above, this Application is granted and the order of dismissal is set aside so that the Applicant can have his main suit heard and determined on its merits.

Costs of this Application shall be in the cause.

1mBrtche

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HON. LADY JUSTICE ANNA B. MUGENYI DATED:10/10/2023