Ssebuwufu v Nassali (Miscellaneous Application 2405 of 2024) [2025] UGHCLD 39 (21 February 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 2405 OF 2024.

*(ARISING OUT OF MISCELLANEUOS CAUSE NO. 117 OF 2024)*

SSEBUWUFU PATRICK ::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

1. NASSALI MADINA

2. COMMISSIONER LAND REGISTRATION ::::::::::: RESPONDENTS

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.

*Introduction:*

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Orders 9 rule 23 & Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The dismissal of HCMC No. 0117 of 2024 under Order 9 rule 22 of the Civil Procedure Rules be set aside unconditionally. - ii) The date for hearing HCMC No. 0117 of 2024 be appointed. - iii) The costs of the application be provided for.

*Background;*

2. The Applicant filed HCMC No. 0117 of 2024 against the Respondents which was fixed for hearing on the 06th day of September 2024 wherein the Applicant nor his Advocate entered appearance following which, Court dismissed the matter under the provisions of Order 9 rule 22 of the Civil Procedure Rules SI 71-1 as amended thus this application seeking to set aside the dismissal order and reinstate the matter.

*Applicants' Evidence;*

- 3. The grounds of the application are contained in the affidavit in support of the application deposed by KAGOYA AISHA Counsel for the Applicant and are briefly that: - i) That I am an advocate with full instructions to prosecute and personally conduct HCMC No. 0117 of 2024 on behalf of the Applicant and I affirm this affidavit in that capacity. - ii) That the Applicant filed HCMC No. 0117 of 2024 for orders that the 2nd Respondent cancels the entry in the register book on certificate of title for property comprised in Kibuga Block 2 Plot 90 land at Bukesa indicating that the 1st Respondent is the Registered proprietor and substitute

entry with Nassali Madina and Ssebuwufu Patrick as tenants in common with 66% and 34% (9 decimals and 4.5 decimals) shares respectively, the 1st Respondent returns to the 2nd Respondent the duplicate certificate of title for property comprised in Kibuga Block 2 Plot 90 land at Bukesa to facilitate the cancellation and substitution of the 1st Respondent with an entry of Nassali Madina and Ssebuwufu Patrick as tenants in common with 66% and 34% shares respectively and the costs of the application be paid to the Applicant by the 1st Respondent.

- iii) That the said matter was scheduled for hearing on the 29th day of August 2024 which happened to be the date when Uganda Law society was holding its annual lawyers conference for two days thus the matter was adjourned to 6th September 2024 at 12:00pm. - iv) That on the 6th day of September 2024, Counsel was not able to attend Court because of the blockade by the police and Special Force Command (SFC) paving way for the presidential convoy which took about 30-40 minutes thus arriving at Court at 12:15pm.

- v) That Counsel was shocked to discover that the matter had been dismissed under Order 9 rule 22 of the Civil Procedure Rules. That Counsel was prevented from being in Court in time due to the blockade by the presidential convoy that is given priority/precedent before any other road user by the police and the special force command. - vi) That the Applicant is a resident of Salzburg, Australia and relied on full and effective representation of his Counsel and the non-appearance by Counsel or the Applicant was beyond our control and the same should not prejudice the Applicant. - vii) That it is just, fair and equitable that the dismissal of HCMC No. 0117 of 2024 under Order 9 rule 22 of the Civil Procedure Rules be set aside to have the matter resolved inter parties.

*Representation;*

4. The applicants were represented by Counsel Akineza Augustine of M/S MNA Advocates whereas there was no representation from the respondents. Only the applicant filed written submissions which I have considered in the determination of this application.

5. The Respondents did not oppose the instant application despite this Court having issued directions that were served onto the Respondents on the 11th day of December 2024 as per the affidavit of service on Court record deponed by Musaasizi Emmanuel on the 12th day of December 2024.

*Issue for determination;*

Whether there is sufficient cause to set aside the dismissal order and reinstate HCMC No. 117 of 2024?

*Resolution and determination of the issue;*

Whether there is sufficient cause to set aside the dismissal order and reinstate HCMC No. 117 of 2024?

- 10. This Court is vested with the powers to make orders to reinstate a dismissed matter or application under Section 98 of the Civil Procedure Act and order 9 rule 23 of the Civil Procedure rules SI 71- 1 - 11. Order 9 rule 23(1) of the Civil Procedure Rules provide that where a suit is wholly or partly dismissed under rule 22 of this order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action; but he or she may apply for an order to set the dismissal aside, and, if he or she satisfies

the Court that there was sufficient cause for non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

- 12. Counsel for the Applicant relied on the case of Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society and others HCMA No. 696 of 2018 and that of Gideon Mosa Onchwati v Kenya Oil Company Limited & another (2017) E KLR to define sufficient cause. "That sufficient cause means that a party had not acted in a negligent manner or there was want of bonafide on its part in view of the facts and the circumstances of each case or the party cannot be alleged to have been "not acting diligently" or "remaining active". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously". - 13. Counsel further submitted that the applicant through the affidavit in support deponed by Aisha Kagoya Counsel in personal conduct stated that on the 6th day of September 2024,

she set out to attend Court at 10:30 am and was delayed by traffic gridlock due to the road blockage around Kitante/Yusuf Lule and Acacia Avenue road junction traffic lights by special forces command and traffic police to clear the way for the presidential convoy that was expected to pass around the same time and when the matter was called for hearing, Counsel was not at Court leading to the dismissal of HCMC No. 117 of 2024.

- 14. That the actions of counsel in personal conduct were not acts of negligence, oversight or error and thus should not be visited on the litigant and Courts are implored to use their discretion to afford litigants an opportunity to prosecute their cases on merits. - 15. Court in the case of Florence Nabatanzi v Naome Binsobedde SCCA No. 6 of 1987 laid down the principles to be followed by Court in these circumstances and these include; - i) The Application must show sufficient reason which relates to the inability or failure to take some particular step within the prescribed time. The general requirements not withstanding each case must be decided on facts. - ii) The administration of justice normally requires that substance of all disputes should be investigated and

decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights.

- iii)Whilst mistake of counsel sometimes may amount to an error of judgement but inordinate delay, negligence to observe or ascertain plain requirements of the law. - iv) Where an applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirement of the law. - v) A vigilant applicant should not be penalised for the fault of his counsel on whose actions he has no control. - 16. The matter came up for hearing on the 6th day of September 2024 at 12:00 pm and when the file was called, the Applicant and his Counsel were not in court thus the matter was dismissed under order 9 rule 22. Counsel stated in her affidavit that she was impeded from getting to Court on time because of the blockade by the presidential convoy which lasted for over one and a half hours which was her estimated time to get to Court. - 17. Counsel further stated in the affidavit in support under paragraph 14 that the applicant is a resident of Salzburg,

Australia and relied on full and effective representation of his counsel in the matter.

- 18. All the averments in the affidavit in support of this application were never rebutted by the Respondents and it is settled law that if the applicant supports his application by affidavit or other evidence and the respondent does not reply by affidavit or otherwise and supporting evidence is credible in itself, the facts stand unchallenged. *(See; Serefaco Consultants limited Euro consults and Arcadis Euro consult CACA No. 16 of 2007)* - 19. This Court is inclined to believe that Counsel for the Applicant was not negligent and actually intended to attend Court on that day but was blocked by the blockage of traffic for the presidential convoy which was beyond her control. - 20. In light of the foregoing, this Court is persuaded to grant the orders as sought in the application since rules of procedure are hand maids of justice in other words, they should serve to facilitate, not obstruct, the pursuit of justice and should not be allowed to become an end in themselves by dominating substantive rights.

21. Therefore, the application is allowed and the dismissal order for HCMC No. 117 of 2024 is hereby set aside, an order for reinstatement of HCMC No. 117 of 2024 is hereby granted with no order as to costs.

I SO ORDER.

NALUZZE AISHA BATALA

Ag. JUDGE

21/02/2025

*Obiter dictum.*

However, before I take leave on this matter, I take note of the fact that Courts have embraced the evolving technology like the Electronic Court Case Management System as well as the video conferencing system to enable litigants even those outside the jurisdiction to attend Court whenever summoned to do so and the same has to be adopted by the Court users including but not limited to litigants and witnesses to avoid instances of counsel becoming witness in matters they are conducting.