THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO.643 OF 2019
(ARISING OUT OF CIVIL SUIT NO.87 OF 2005)
ABDUL NASSER::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
- YESERO MUGENYI
- S & M HOLDINGS LTD::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
BEFORE: HON. MR. JUSTICE HENRY I KAWESA
This application was brought by notice of motion under Section 98 of the Civil Procedure Act Cap 71, O.9 r18 and O.52 r1 & 3 of the Civil Procedure Rules SI 71-1 seeking for orders that;
- The order dismissing the main suit dated 29th March, 2019, be set aside and the suit be reinstated.
- Costs of the application be provided for.
The application is supported by an affidavit, and an affidavit in rejoinder deponed by the Applicant. The application is contested by the 1st Respondent on grounds to be referred to in the ruling. Both parties are represented by Counsel who filed written submissions in support of the respective sides. These I shall consider in resolving the dispute.
Before dwelling on the contents in the affidavits, it is prudent to give a brief background to this application. The Applicant filed the main suit against the 1st Respondent seeking for several reliefs in respect of land comprised in LRV 801 Folio 24, Plot 27 Kololo Hill. Later on, he brought Miscellaneous Application No.447 of 2015 seeking orders to amend and add the 2nd Respondent on the main suit which application was granted. Being dissatisfied with the decision of Court, the 1st Respondent appealed Miscellaneous Application No.447 of 2015 to the Court of Appeal. Having appealed, proceedings in the main suit were stayed on the 17th October, 2016 pending the outcome of the appeal.
The appeal was heard and dismissed on the 22nd November, 2018 with orders, inter alia; that the Applicant files and serves his amended plaint upon the Respondents within 30 days from the date of the judgment. In compliance with the order, the Applicant filed an amended plaint on the 20th December, 2018, and served the same unto the 1st Respondent on the 11th February, 2019.
Counsel then moved Court by later dated 25th March, 2019. It is upon this letter that the Applicant became aware that the head suit had been dismissed on ground of nonappearance by this Court on the 15th December, 2017; before the determination of the appeal.
The law, applications of this nature are only granted upon proof of sufficient cause which must relate to the failure to take the necessary steps required by law. This is normally demonstrated by the Applicant showing that he or she had an honest intention of attending Court. Additionally, the Applicant must also show that he was diligent in applying for reinstatement in this case.
Both Counsel were cognizant of these propositions in their respective submissions guided by the provisions of O.9 r18 of the Civil Procedure Rule, Marisa versus Uganda Breweries Ltd [1988-90] HCB 131, and Parminder Singh Marwah Katongole versus Muzafaru Matovu HCCA No.51 of 2015.
In this application, a reference to the pleadings and according to the Applicant’s affidavits, the sufficient cause for nonappearance on the relevant date was allegedly because the main suit had been stayed pending the determination of the appeal. It the case of the Applicant that it was not necessary to appear before this Court on the relevant date until the determination of the appeal. The Applicant also averred that the application was brought without delay.
These facts were not refuted by the 1st Respondent save for averring that the Applicant failed to comply with the Court of Appeal’s orders that is; filing and serving the amended plaint upon him within 30 days of the judgment. He further argued that by 21 days within which the Applicant had to serve the amended plaint had lapsed by the time the pleadings were served onto him. He thus stated that following the Applicant’s noncompliance with the Court of Appeals’ orders and rules of procedure, the main suit abated even though it was later dismissed. Ultimately, he urged this Court not to grant the application on ground that the Applicant has showed no sufficient cause for noncompliance with the rules of procedure. This was emphasised by Counsel in his written submissions.
In rejoinder, the Applicant averred that he complied with the Court of Appeal orders since the amended plaint was filed within 30 days of the judgment. Further, that the summons to file a defence to the amended plaint were also signed by this Court on the 6th February, 2019, and served on the 1st Respondent on the 11th February, 2019 (supposedly within 21 days) in compliance with the procedural rules.
Having appreciated the law, the evidence, and both Counsel submissions on record, I find that it was unnecessary for the 1st Respondent and his Counsel to raise the issue of the Applicant’s filing and service of the amended plaint a subject given the peculiar background of the application. Firstly, the law properly dictates clear principles on which such applications are granted.
In my view, I doubt that service out of time is one of them as the 1st Respondent and his Counsel attempt to suppose. Secondly, it is also clear that when the amended plaint was filed, the main suit had already been dismissed. That being the case, it can properly be said that the amendment itself was improperly before Court since there was no plaint to amend the suit having been dismissed. The point I am trying to stress here is that there is no water in the 1st Respondent’s contention of serving him out of time. It was thus useless for him to build his defence around that point.
It is clear to me now that the 1st Respondent had no valid opposition to this application. To me, the circumstances of the application are unique and clear cut that is; Court stayed a suit pending the determination of the appeal and, out of its own mistake, it dismissed the suit for nonappearance without giving notice of resumption of trial to the parties, and before the determination of the appeal. This being the fault of Court, it, in my view, constitutes a sufficient cause for nonappearance of the Applicant.
The record indicates that the Applicant always attended Court before his suit was dismissed. It can thus be inferred that the Applicant had an honest intention of attending Court even on the date his suit was dismissed but for the ignorance of resumption of trial. Additionally, this application was brought within one month of becoming aware of the dismissal of the main suit.
Accordingly, it is safe to conclude that the Applicant was diligent in applying for reinstatement.
The whole circumstances are thus in favour of the Applicant. Consequently, I agree with the Applicant’s Counsel that this application ought to succeed.
Ultimately, the following orders are hereby granted;
- That the order dismissing HCCS No. 87 of 2005 is set aside.
- That the Applicant serves both Respondents herein the amended plaint within 15 days of this ruling.
- Each party bears its own costs.
I so order.
Henry I. Kawesa
Mr. Yusuf Kagere; counsel for the Respondent.
Respondents not in court.
Ita Kasaija; counsel for the Plaintiff jointly with Paul Muhimbura & Rubagumya J P holding his brief.
Applicant in court.
Grace: Court clerk.
Matter for Ruling. We are seeking to receive it.
Ruling read in chambers in the presence of the above.
Counsel for Respondent: We intend to appeal against the Ruling.
If the appeal is not a matter of right, leave will be sought before the trial Judge.