[2023] UGHC 389

# **THE REPUBLIC OF UGANDA**

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

## **MISCELLANEOUS APPLICATION NO.79 OF 2022**

## **(ARISING FROM HCCS. NO.57 OF 2019)**

## **JOYCE TURURONDWA:::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

- **1. ATTORNEY GENERAL** - **2. ASP BABWETERA** - **3. PC MUHWEZI ASAPH** - **4. MUGISHA ROGERS:::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS.**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING.**

This Application was brought under Order 9 Rule 18 and Order 52 Rule 1 of the Civil

Procedure Rules SI 71-1 seeking orders that;

- 1. The order dismissing Civil Suit No.57 of 2019 for abatement be set aside. - 2. Civil Suit No.57 of 2019 be reinstated. - 3. Costs of the Application be provided for.

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

- 1. She filed HCCS. No.57 of 2019 in December 2019 and she was prevented from prosecuting the same due to absence of the trial judge and COVID 19 restrictions. - 2. The restrictions stretched from 2020 to 2022. - 3. The restrictions disrupted the judicial system however in August 2021 operations resumed. - 4. The file was later allocated to a Judge and the matter was fixed for 24th February 2022 whereafter the matter was dismissed on account of the matter having abated. - 5. The 1st Respondent did not file a defence to the suit and judgement was entered against them.


There are three affidavits in reply to the Application deponed by the 2nd, 3rd and 4th Respondents however, it is my observation that their averments therein are identical. I have perused all of them to satisfy myself that the averments therein are identical and having confirmed the same, I shall therefore reproduce only contents of the 2nd Respondent's affidavit. And he states as follows that;

- 1. The suit abated and the only option available to the Applicant is to institute a fresh suit. - 2. The 1st Respondent duly filed a defence in the main suit on 7/02/2020 and the Defence is on Court record. - 3. After filing this Application, the Applicant has demonstrated lack of interest in prosecuting the suit.

In rejoinder, the Applicant deponed as follows, that;

- 1. COVID brought all movements of persons to a complete halt and she was no exception. - 2. After filing the Application, she has always sought to have the same fixed for hearing.

The Deponent also reiterates her averments in the affidavit in support.

#### **Representation.**

The Applicant was represented by Patrick Yehangane of M/s Yehangane and Co. Advocates while the 2nd, 3rd and 4th Respondents were represented by Tusiywire Andrew of M/s JOJOMA Advocates. The 1st Respondent was neither present nor represented.

The Parties were instructed to file written submissions but at the time of determination of this Application, only the Applicant had filed the written submissions. I shall therefore consider the submissions of the Applicant and dispense with the submissions of the Respondents.

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


The gist of Counsel's submission is that the Applicant was prevented from prosecuting the case due to the COVID 19 restrictions. Counsel stated that summons were duly file and are dated the 3rd of March 2020 and fixed for determination/hearing on 21st April 2020 but on the day, there was no Court to entertain the summons for directions due to the lockdown. Counsel then submitted that abatement on account of failure to take out summons for directions does not suffice. Counsel concluded his submission by stating that the Applicant has established sufficient cause to warrant reinstatement of the suit. Counsel relied on the case of Charles Harry Twagila and 2 others versus the Attorney General and 2 others, SCMA. No.15 of 2006 to support his submissions.

Having carefully considered the affidavits in support, in reply and in rejoinder as well as the submissions for the Applicant. I now proceed to determine this Application.

#### **Determination of the Application.**

My first observation is that the Applicant brought this Application under Order 9 rule 18 of the Civil Procedure Rules (CPR). However, *Order 9 Rule 18* only applies to situations where a suit is dismissed for nonappearance when the suit was called for hearing or when the suit is dismissed where on the day fixed for filing a defence or to appear and answer, it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court fee or charges, if any, for the service. (See: *DFCU Bank Ltd versus Prime Contractors and 2 others, HCMA. No.715 of 2014*).

None of the above scenarios, apply to the facts before in this Application.

According to the Court record, this Court issued an order that the main suit had abated under Provisions of *Order 11A Rule 1(2)* and *1(6)* of the *Civil Procedure Rules SI 71-1 (as amended)*.


It is my observation that in this Application, the Applicant seeks to reinstate a suit that was declared as having abated on account of failure to take out summons for directions as provided for under *Order 11A Rule 1(2)* and *1(6)* of the *CPR*.

In *Abdul Ddamulira Vs Mss Xsabo Power Limited HCMA No. 046 of 2021*, it was held that once a suit abates, any application to reinstate the suit is untenable and the only remedy available is to file a fresh suit subject to the law of limitation. (Also see: *King College Budo Staff Savings scheme Limited versus Lukanga Bosco and another, HCCS. No.26 of 2020*.)

I see no reason to depart from the above finding, because Order 11A Rule 7 is very specific on the remedy available to a litigant in the event a suit is declared by Court to have abated and it is to the effect that a litigant may file a fresh suit subject to the law on limitation. Secondly the rules do not provide for the fact that the suit can be reinstated upon an order being issued that the suit abated.

In the premise, it is my finding that the present application is misconceived and is dismissed. The Respondents' participation in this Application was limited and almost non-existent. As a result, each party shall bare their own costs.

I so order.

Dated and delivered at Masaka this 7th day of September, 2023.

**Victoria Nakintu Nkwanga Katamba. Judge.**