Annet Namirimu v Susan Bamanyisa and 2 Others (HC Miscellaneous Application No. 894 of 2018) [2021] UGHCLD 45 (21 January 2021)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

MISC. APPLICATION NO 894 OF 2018

5 (Arising out of Civil Suit No. 1062 of 1987)

ANNET NAMIRIMU ------------------------------------------------------------------------- APPLICANT

V

1. SUSAN BAMANYISA 2. SAMUEL WALADDE 3. YONASANI NKOOLA)------------------------------------------------------------- RESPONDENTS

15 (Administratrix & Administrator of the Estate

of the Late Erukana Kuwe)

Before: Hon. Lady Justice Olive Kazaarwe Mukwaya

20 RULING

This application was brought under O.9 r 23 of the CPR, section 98 of the CPA and sections 33 & 39 of the Judicature Act. The Applicant seeks orders that;

25 a) The dismissal of the suit HCCS 1062 of 1987 be set aside.

b) Costs be provided for.

Background

The Applicant filed HCCS 1062 of 1987 against Erukana Kuwe who is now deceased. The record of proceedings of that suit indicates that on the 6th day of June 1988, hearing of the suit commenced before the Hon. Lady Justice L. E. M Kikonyogo. On that day,

- 5 the court called the witness, PW1, S. Byamugisha Juma, Registrar of Titles. He concluded his testimony on the 30th day of June 1988. The second witness, Ms. Annet Namirimu Ndaula, the Applicant before this Court, commenced her testimony on the 11th day of July 1989. During the course of her cross-examination, a series of events curtailed the hearing between the 10th August 1989 and the 3rd April 1995. A period of - 10 6 years. There are no further entries on the court record by the trial Judge after that.

In the affidavit in support of this application, the Applicant narrates her version of what happened in the interim period until the suit was dismissed on the 19th day of September 2007 under O.17 rule 6 of the CPR by the Ag. Assistant Registrar, His Worship, 15 Gadenya Paul Wolimbwa (as he then was).

I have appraised myself of the pleadings and submissions by Counsel in this matter. Among the other arguments made in support of this application is that the learned Ag. Assistant Registrar at the time lacked jurisdiction to dismiss the suit.

Counsel for the Respondent, in his submissions contesting the grant of this application, pointed out that O.9 rule 23 is not the appropriate procedure for this application and I agree. The suit was dismissed under Order 17 rule 6 of the CPR and therefore Order 9 rule 23 was inapplicable in the circumstances. It is also clear that the dismissal referred 25 to in this application, is the only dismissal order on the court record of HCCS 1062 of 1987. And it is this dismissal order that the Applicant seeks to set aside. Counsel for the Applicant rightly submitted that the failure by the Applicant to cite the correct procedural law did not render the application incurably defective.

A lot has been said by both parties in their pleadings and submissions. The most pertinent issue raised is;

5 Whether the learned Ag. Assistant Registrar had jurisdiction to make the order for dismissal of the suit?

Counsel for the Respondent did not address this point of law in their submissions.

- 10 The facts are that the Hon. Trial Judge had commenced hearing in the matter and two witnesses' evidence was on court record. Further hearing had been ordered and had been pending for twelve (12) years. Then, on the 19th day of September 2007, in the absence of the parties, the learned Ag. Assistant Registrar dismissed the partly heard suit under Order 17 r.6 of the Civil Procedure Rules which provides as follows; - 15

'6. Suit may be dismissed if no step taken for two years.

- 1) In any case, not otherwise provided for, in which no application is made or step taken for a period of two years by either party with a view to proceeding with the suit, the court may order the suit to be dismissed. - 20 2) In such case the plaintiff may, subject to the law of limitation, bring a fresh suit.'

Order 50 of the CPR provides for the powers of Registrars. Under Order 50 rule 2, Registrars may enter judgment in uncontested cases; under Order 50 Rule 3, Registrars 25 may take all formal steps preliminary to the trial and all interlocutory applications. Lastly, under Order 50 rule 4, Registrars may make formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and

imprisonment in execution of a decree of the High Court. Registrars have no powers to dismiss a part heard suit.

Jurisdiction of the Court is not matter for implication but must be prescribed by law.

- 5 (See Athanasius Kivumbi Lule Vs Hon. Emmanuel Pinto (Constitution Petition No. 5 of 1997). Proceedings of a Court without jurisdiction are a nullity because no Court can confer jurisdiction upon itself. Lack of jurisdiction goes far beyond any error, omission, or irregularity nor can it be regarded as a mere technicality. (See Desai Vs Warsama (1967) EA 351). - 10 It has been a total of 26 years since this court last took legal action in HCCS 1062 of 1987. The fact that the learned Registrar had no jurisdiction to make the order for dismissal of the suit under Order 17 Rule 6, rendered the order a nullity. And therefore HCCS 1062 of 1987, as Counsel for the Applicant rightly pointed out, is still pending before this Court as a part heard case. In the circumstances, I find no cause to make any 15 pronouncements as to the other aspects of this application which in my view appeared to go into the merits of HCCS 1062/1987.

In conclusion, I allow this application and I order as follows;

- 1) The order for dismissal under Order 17 rule 6 made on 19th/9/2007 by the learned Ag. Assistant Registrar, His Worship Gadenya Paul Wolimbwa (as - 20 he then was) is a nullity and is set aside. - 2) HCCS 1062 /1987 is a pending suit before this Court. - 3) Costs of the Application are awarded to the Applicant.

Olive Kazaarwe Mukwaya

……………………………….

Judge

21st January 2021

Delivered by email to Counsel for the Applicant and the Respondent.

Representation: Mr. Kenneth Kajeke and M/s John F. Ssengooba & Co. Advocates for

5 the Applicant

M/s Kateera & Kagumire Advocates for the Respondents.