[2025] UGHC 100

#### THE REPUBLIC OF UGANDA

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

MISC. APPLICATION NO. 005 OF 2025 (Formerly MSD Misc. Application No.83 of 2019) (Arising from Civil Appeal No. 060 of 2009)

REGISTERED TRUSTEES OF HOIMA DIOCESE **HILLING APPLICANT**

#### **VERSUS**

1. PHILIP ODEBA 2. BIBIYANA OWEKA 3. ANWAN CUCANE RECIDA $\sim$ . OLELE OMAR 5. ODONGO MIDAKIR 6. OKELLO SAFARI CHARLES::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- This Application was brought under S.98 CPA, O.9 r.23 and O.52 rr.1 & 2 $[1]$ of the CPR for orders that: - 1. The dismissal of Civil Appeal No. 065 of 2009 be set aside and the Appeal be reinstated. - 2. Costs of the Application be provided for. - The Application is based on grounds set out in the Affidavit of **Rev. Fr.** $[2]$ Aliomu James Sabiiti, a registered trustee and member of the Applicant which are as follows: - 1. That **Civil Appeal No.60 of 2009** which was instituted by the Applicant was dismissed for want of prosecution on the 29^th day of May 2013.

- 2. That the Applicant instructed her former lawyers M/s Tibaijuka & Co. Advocates to prosecute the appeal and was always informed that the Applicant's appeal was progressing. - 3. That the Applicant got to know that the appeal was dismissed when she served with a bill of costs in respect of the dismissed appeal. - 4. That the Applicant is desirous of prosecuting the appeal and the application for reinstatement has been brought without inordinate delay. - The 1^st & 2^nd Respondents, Philip Odeba and Bibiyana Oweka, filed their $[3]$ affidavits in reply wherein the grounds opposing the application are stated briefly as follows; - 1. That the $1^{st}$ and $2^{nd}$ Respondents are husband and wife respectively while the rest of the Respondents are their children. - 2. That as a family, they have been in possession of their land (suit land) since $11/07/2008$ for a period of 10 years. - 3. That the Applicant is guilty of inordinate delay as she did not prosecute the appeal from 31/1/2009 until when it was dismissed on $29^{th}/05/2013$ . - 4. That the Application is an abuse of court process and it should be dismissed with costs.

## **Counsel legal representation**

The Applicant was represented by Mr. Norbert Alibankoha of M/s $[4]$ Alibankoha & Co. Advocates. Hoima while the Respondents were represented by Mr. Lubega Willy of M/s Lubega, Babu & Co. Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination this application.

### **Background**

the sued Respondents/plaintiffs the $[5]$ lower court, In the Applicant/defendant vide C. S No.24 of 2008. The matter was heard and judgment was entered in favour of the Respondents/plaintiffs decreeing the suit land them and the Applicant/defendant & Others were found to be trespassers. The Applicant filed M. A No.65 of 2008 seeking to set aside the exparte judgment which was dismissed for having been brought under the wrong law. The Applicant then filed an Appeal on the $3^{rd}/11/2009$ and when the appeal came up for final disposal, neither the Applicant nor her counsel were in court and the appeal was dismissed for want of prosecution on $29^th/5/2013$ . As a result, the Respondents/plaintiffs filed a bill of costs and the same was served on the Applicant. The Applicant responded by lodging the instant Application on $30^th/7/2019$ to set aside the dismissal order and reinstate the appeal.

# **Preliminary objection**

### a) Competence of the application

- Counsel for the Respondents raised a preliminary point of law that the $[6]$ Application is incompetent as the same was served on the Respondents on 21/08/2019 after a period of 6 years which was outside the time frame for which service on the opposite party is permitted. 2ndly, that the Applicant adopted a wrong procedure in filing this application, he ought to have proceeded under O.43 r.16 CPR for reinstating an appeal dismissed for want of prosecution under O.43 r.14(1) CPR. - I have perused the record. There is no evidence adduced by the $[7]$ Respondents to the effect that the Respondents were served out of time. I think there is confusion in the camp of the Respondents. It is not evident from the Application and the affidavits in reply that surely the Application

was served upon the Respondents after a period of 6 years. What is apparent is that the Respondents responded to the Application by filing affidavits in reply after 3 months which still cannot be evidence that they were served the Application out of time. Counsel for the Respondent did not show court in his submissions or by any evidence as to when the Respondents' lawyers or the Respondents were served the Application for court to appreciate his argument on this aspect. There is no evidence, for example that the Respondents protested for being served the Application out of the prescribed time of 21 days, O.5 r.1(2) CPR, See also Akankwasa Vs United Bank of Africa, HCMA No.1233 of 2017 or that the Application was served after 3 months so as to require the Applicant to seek extension of time to serve out of time. In the absence of such evidence, the Applicant takes the benefit of doubt. It follows therefore, there is no evidence that the Application was served out of time. 2ndly, in agreement with the Respondents' counsel, the Applicant ought to have proceeded under 0.43 r.16 CPR to have the dismissed appeal readmitted but in this case, I will consider that as a technicality envisaged under Article 126 (2) (e) of the Constitution of Uganda which should not deter or affect the determination of this application on merit. I therefore proceed to determine this application on its merit.

## **Determination of the Application**

- Whether the Applicant has demonstrated sufficient cause to have Civil Appeal No.060 of 2009 reinstated. - While relying on Article 126(2) (e) of the Constitution (supra) and the $[7]$ authority of Tayebwa and Anor Vs Kagimu, HCCS No. 118 of 2012, Counsel for the Applicant submitted that it is a cardinal principle of law that substantive justice shall be administered without undue regard to technicalities and that land matters ought to be investigated to the latter to

avoid a miscarriage of justice respectively. He submitted that the Applicant instructed her lawyers, Ms Tibaijuka & Co. Advocates to file and prosecute Civil Appeal No. 060 of 2009. That the lawyers always gave the Applicant assurance that the appeal was progressing but failed to notify the Applicant of the hearing date and also failed to attend court on the due date.

- Counsel further submitted that since the case in the lower court was $[8]$ decided exparte, M. A No.60 of 2008 was dismissed on a technicality and C. A No.60 of 2009 was dismissed for non-appearance of the Applicant and/or her presentative or lawyers, it would be in the interest of justice that this court administers substantive justice by reinstating the appeal and hear the Applicant. He relied on the authority of Banco Arabe Espanol Vs Bank of Uganda [1999] 2 EA 22 to support his argument. - Counsel for the Respondent submitted in reply that the Applicant is guilty $[9]$ of dilatory conduct and has not shown sufficient cause for non - appearance at the hearing of C. A No.60 of 2009. That the Applicant alleging mistake of counsel is not sufficient as they (Applicant's representatives) ought to have followed up the appeal but there is no evidence that they ever followed up or took any steps to ensure that the appeal is heard from 2009 when it was instituted to 2019 when it was dismissed. - [10] 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..."

Therefore, in an application for reinstatement of a dismissed suit, all an applicant needs to do is to satisfy Court that there was sufficient cause for non - appearance; i.e that he had an honest intention to attend the hearing, and did his best to do so, and that he was diligent in applying for its reinstatement.

In this case, the record show that the Applicant filed the memorandum of $[11]$ appeal on the $3^{rd}/11/2009$ . The appeal came up for hearing on the $29^th/05/2013$ and neither the Applicant's representatives nor her counsel were present. As a result, the court dismissed the appeal under O.43 $r.14(1)$ CPR which provides for an appeal to be dismissed where the appellant does not appear on date scheduled for hearing of the appeal. The Applicant filed this Application on $30^th/5/2019$ after a period of more than 5 years from the time of the dismissal order. Honestly, I find the Applicant guilty of inordinate delay in bringing this application for reinstatement. The excuse by the Applicant is that its former advocates failed and/or refused to prosecute the appeal despite having instructions to represent her on appeal hold no water since as per Dr. SB Kinyata & Anor Vs Subramaniam Gopalan & Associates, HCMA No.108 of 2003;

> "It is the duty of an intending appellant to actively take steps necessary to prosecute an appeal. It is not the duty of the Respondent or the court."

The Applicant in this case, ought to have followed up its appeal so as to be able to take the necessary steps in time and file the present Application without undue delay. The Applicant failed on this duty. To wait for 5 years to file an Application for reinstatement of the dismissed appeal after more than 5 years, is definitely inexcusable inordinate delay. In addition, no sufficient reason has been advanced by the Applicant as to why her representatives or her lawyers did not attend court or follow up the appeal. It is not enough to merely put forward an excuse of mistake of counsel without adducing evidence of what steps the

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Applicant took to show that she was indeed interested therefore actively followed up in a bid to prosecute her appeal.

[19] In the premises, I find that the Applicant is guilty of inordinate delay and has not advanced or demonstrated any sufficient reason to warrant setting aside the dismissal order to reinstate or re-admit Civil Appeal No.60 of **2009.** The application is dismissed with costs to the Respondent.

Dated this 17^th day of January, 2025.

**Byaruhanga Jesse Rugyema** Judge