Kadala Haidali v Kakembo Micheal and Others (Miscellaneous Application 93 of 2024) [2025] UGHC 309 (31 March 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT LUWERO

HCT-17-LD-MA-0093- 2024

(ARISING FROM HCT-17-LD-MA-0270- 2023)

(ARISING OUT OF NAKASONGOLA CHIEF MAGISTRATE'S COURT CIVIL SUIT

NO. 018 OF 2022)

KADALA HAIDALI ………………..…………………….… APPLICANT

VERSUS

- 1. KAKEMBO MICHEAL - 2. SSESANGA DAVID - 3. MPAKA JAMES - 4. SSEMAMBO WILBERFORCE - 5. NALUKAMBWE EDITH - 6. NAMUTEBI EDINANCE - 7. NAKAKEMBO ESEZA ……………………..……….. RESPONDENTS

BEFORE: HON LADY JUSTICE HENRIETTA WOLAYO RULING

Introduction

- 1. By notice of motion dated 17.4.2024, the applicant moved court under Order 9 rule 23, Order 50 rule 1, 2, 3, 6 & 7, and Order 52 rule 1 and 3 of the Civil Procedure Rules for the following orders: - a) The dismissal order in HCT-17-LD-MA-0270-2023 that was entered on 11.4.2024 be set aside and the application be reinstated. - b) Costs of this application to abide the main cause - 2. The grounds in support of this application are contained in the affidavit in support of Kasule John Ronald an advocate, and an additional affidavit in support by Kadala Haidali, the applicant.

- 3. The fourth respondent, Ssemambo Wilberforce, opposed the application in his affidavit in reply deposed on behalf of the third, fifth, sixth and seventh respondents. - 4. When the matter came up for hearing on 27.5.2024, counsel for the respondents informed the court that he was never served and as such he did not file an affidavit in reply. I therefore directed counsel for the respondents to file an affidavit in reply by 10.6.2024 and the applicant to file a rejoinder by 14.6.2024. I further directed both counsel to file written submissions along the following schedules; applicant by 14.6.2024, respondents by 28.6.2024 and a rejoinder by 29.6.2024. Only the third to seventh respondents filed their written submissions.

Background information

*Proceedings in Nakasongola Chief Magistrate's Court Land Civil Suit No. 018 of 2022*

- 5. The plaintiff Kadala sued the first to seven defendants for trespass to land comprised in Buruli Block 124 Plot 62 land at Wabingo, and prayed for eviction, demolition and vacant possession against the defendants among other reliefs. The first and second defendants averred that the plaintiff had no cause of action against them and they further denied liability and instead attributed it to the third, fourth, fifth, sixth and seventh defendants. The third to seventh defendants in their written statements of defence raised preliminary objections that the suit is time – barred and that it does not disclose a cause of action against them. They further denied the plaintiff's claims in respect of the suit land and its proprietorship and accordingly filed a counter claim asserting claims of ownership and fraudulent dealings on the suit land by the plaintiff. - 6. In a turn of events, on 14.9.2023, the plaintiff's counsel informed the magistrate grade one that she wished to withdraw the suit for lack of pecuniary jurisdiction and that cancelation of titles falls within the jurisdiction of the High Court. She therefore implored the court to have the ongoing proceedings stayed until the application in HCT-17-LD-MA-0270-2023 is heard. Counsel for the defendant objected to the said prayer and submitted that the subject matter is within the court's jurisdiction.

- 7. The magistrate upon scrutiny of the pleadings noted that the highest estimation of the subject matter in the counterclaim is UShs.39,750,000/ which falls within the pecuniary jurisdiction of the Chief Magistrate Court. - 8. On 25.10.2023, in the presence of counsel for the defendants, the learned chief magistrate agreed with the submissions of counsel for the plaintiff that had been made before the grade one magistrate, and she accordingly transferred the case to the High Court for want of jurisdiction. Notably, the chief magistrate observed that cancellation of title was the preserve of the High Court.

*Miscellaneous Application No. HCT-17-LD-MA-0270-2023*

- 9. The applicant Kadala filed this application to have Civil Suit No. 018 of 2022 withdrawn from the Chief Magistrates' Court of Nakasongola and transferred to the High Court of Luwero on grounds that the Chief Magistrate's Court had no pecuniary jurisdiction to try the suit owing to the value of the subject matter being UGX. 116,000,000/=. - 10. On 11.4.2024, owing to the non-appearance of the applicant and his counsel, I dismissed the application with costs and accordingly ordered that the record of Civil Suit No. 018 of 2022 be transferred back to the Chief Magistrate's Court for further management. Counsel for the respondents suggested that since I had already transferred the case back to the chief magistrate, the application to transfer to the High Court is superfluous. However, the order to return the case back to Nakasongola was made ex parte and I therefore set aside that specific order. - 11. The applicant, being aggrieved by the dismissal order, brought the instant application for setting aside and reinstatement.

Issues raised

- a. Whether the affidavit in support, of Kasule John is defective and should be struck off - b. Whether the there is sufficient cause to reinstate Misc Application No. HCT-17-LD-MA-270-2023

Resolution of the case

*a. Whether the affidavit in support, of Kasule John is defective and should be struck off*

Third to seventh respondent's case

- 12. The respondents raised preliminary objections that the instant application is moot since Misc Application HCT-17-LD-MA-0270-2023 was overtaken by events in the Magistrate court. I will revert to this point of law later in my Ruling. - 13. The respondents further raised another preliminary objection that the affidavit in support deposed by Kasule John Ronald is incurably defective and bad in law since it was deposed without authority. I note that the deponent is an advocate in the firm representing the applicant and therefore as the applicant's agent, he authorised to he was authorised to depose the affidavit. - *b. Whether the there is sufficient cause to reinstate Misc Application No. HCT-17-LD-MA-270-2023* - 14. The import of Order 9 rule 22 of the Civil Procedure Rules is that where a suit is dismissed for non-appearance by the plaintiff, the plaintiff is barred from bringing a fresh suit in respect of the same cause of action but may apply to reinstate the dismissed suit if there is evidence of sufficient cause for non-appearance.

Applicant's case

15. The applicant deposed that having filed Misc Application No. HCT-17-LD-MA-0270- 2023, the matter was fixed for 11.4.2023, by the registrar. Additionally that when the applicant's agent reached out to the clerk, they were informed that upon checking

the diary and ECCMIS, nothing indicated that the matter was coming up for 11.4.2024 and furthermore, that there was no physical file for the said application as it had not yet been constituted. Evidently, the reference to 11.4.2023 was an error as by then, the case was still in Nakasongola.

16. The applicant further deposed that to his surprise, the clerk called him on 11.4.2024 at 4:00pm and informed him that the said application had been dismissed for nonappearance of the applicant Kadala.

Third to Seventh Respondents' case

- 17. The respondents deposed that the application is untenable in law and devoid of merit and an abuse of court process. And that on 14.4.2024, the court took into account the applicant's non-appearance which resulted into the dismissal of the said application. - 18. In summary, it was the respondents' case that the applicant has not presented sufficient cause warranting reinstatement of the said miscellaneous application and that the dismissal of Misc. Application No. HCT-17-LD-MA-0270-2023 was justified owing to the applicant's non-appearance without sufficient cause.

Resolution of the case

- 19. In an application for reinstatement, the applicant/plaintiff must satisfy to the court that there exists sufficient cause for his or her non-appearance to prosecute the application. - 20. It has been pleaded that the applicant and his counsel were prevented from appearing in court on 11.4.2024 to prosecute the said application owing to a miscommunication of the said hearing date by the court clerk. I find that such justification amounts to sufficient cause for the applicant's non-appearance on the said date and the court considers it as valid reasons and grounds for reinstatement and MA No. 0270 of 2023 is hereby reinstated.

- 21. With that being said, in order to prevent delays in disposal of the suit, I shall exercise my powers under Section 17(2) of the Judicature Act Cap. 16 and determine the reinstated application. - 22. This is an application to transfer Nakasongola Civil Suit No. 018 of 2022 to the High Court on the grounds that the chief magistrate's court lacks pecuniary jurisdiction to hear it. - 23. As submitted by counsel for the respondents, this application is moot since the chief magistrate transferred Nakasongola Civil Suit No.18 of 2022 to the High Court for trial by her decision made on 25.10.2023. In the premises, MA No. 0270 of 2023 is dismissed for being moot on the grounds that the orders sought were granted by the chief magistrate. - 24. Having delayed the hearing of the suit since 2023 well knowing that the chief magistrate had granted the prayer to transfer it, the applicant acted unreasonably by pursuing High Court MA. 270 of 2023. For this reason, the applicant Kadala Haidali shall pay the taxed costs of MA. No. 0270 of 2023 and MA 0093 of 2024 to all the seven respondents before taking the next step in the suit.

DATED THIS 31ST DAY OF MARCH 2025

LADY JUSTICE HENRIETTA WOLAYO

Legal Representation

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Mulindwa Kasule & Co Advocates for the Applicant Ayebazibwe, Makorogo & Co Advocates for the 3rd to 7th Respondents