THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 389 OF 2019
ARISING FROM MISC. APPLICATION NO. 323 OF 2018 & CIVIL SUIT NO. 221 OF 2018
- GOLDEN TRIPOD T/A GOLDEN TRIPOD CASINO
- STAR CASINO LTD T/A CASINO:::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
BEFORE: HON. DR. JUSTICE BASHAIJA K. ANDREW
Kwesiga Ronald (hereinafter referred to as the “Applicant”) brought this application against Golden Tripod T/a Golden Tripod Casino and Star Casino Ltd T/A Casino (hereinafter referred to as the 1st and 2nd Respondent respectively) under the provisions of Section 98 of the Civil Procedure Act Cap 71; and Order 52 rule 1 and 2 of the Civil Procedure Rules SI71-1; for 0rders that H.C.M.A No.323 of 2018 be reinstated and heard on its own merits. The application is supported by an affidavit sworn by the Applicant.
The 1st Respondent opposed the instant Application and filed an affidavit in reply sworn by Ms. Bridget Tumwebaze Adyeri. The 2nd Respondent never filed a reply to this application.
The Applicant is the plaintiff/Applicant in H.C.C.S No. 221 of 2018 and H.C.M.A No. 323 of 2018: Kwesiga Ronald vs. Golden Tripod Casino and Star Casino, respectively. He applied for a temporary injunction against the Respondents restraining them from carrying on activities of casino until the determination of the main suit. The application was, however, dismissed for want of prosecution because the Applicant and his counsel were absent when the matter was called for hearing on the date which they were all aware of.
In the instant application, the Applicant avers that he is the plaintiff and Applicant in the said suit and application respectively and that he instituted the suits out of civic duty to uphold and defend the other laws deriving their authority from it. That he applied for a temporary injunction against the Respondents restraining them from carrying on activities of casinos until the determination of the main suit. That at that time he was being represented by M/s. Muganwa, Nanteza & Co. Advocates whom he instructed to appear but that they failed to do so and H.C.M.A No. 323 of 2018 was dismissed. That he tried to seek an explanation from his former lawyer as to why they did not appear for the hearing of the application, but all efforts were unsuccessful. That due to the aforementioned circumstances he had to change lawyers and that he instructed another firm of M/s.Tropical Law Advocates to take over the proceedings.
That his application was dismissed for want of prosecution because he and his counsel were absent as they never received hearing notices for the application. That the mistake of his former lawyers should not be visited on him the client and that this application should, therefore, be allowed.
The 1st Respondent in the affidavit in reply opposes the application and avers that there is no pending suit between the Applicant and the 1st Respondent hence this application lacks merit. That the Applicant has no locus standi to bring any claim against the 1st Respondent in respect to the regulation of the latter’s business operations. That the application for a temporary injunction vide H.C.M.A No.323 of 2018 was dismissed on 10th September 2018 and the Applicant filed this application on 18th June 2019 and hence there has been an unreasonable delay on the part of the Applicant in respect to filing this application.
That the Applicant has not raised any reasonable or justifiable cause to warrant the granting of this application hence the same should be dismissed with costs to the 1st Respondent. That the Applicant’s lawyers have at all material times attended the taxation of the bill of costs for the dismissed application for a temporary injunction since the 1st Respondent filed a bill of costs in court on 10th September 2018 and served the same unto the Applicant.
In rejoinder, the Applicant maintained that the Respondents had at the time of institution of H.C.C.S No.221 of 2018 no license to engage in the business of forex trading and forex exchange. That the application and suit were dismissed due to non-attendance of lawyers. That notice of change of Advocates clearly indicates that the Applicant gave instructions to his new lawyers on 6th February 2019. That it is in the interest of justice that the suit and the main application are reinstated as the Respondents are carrying out unregulated forex exchange business and the application for taxation was served onto his former lawyers M/s.Mugwanya, Nanteza & Co. Advocates and not his current lawyers M/s. Tropical Law Advocates who made an application to reinstate the matter and also prayed that taxation of H.C.M.A No. 323 of 2018 be stayed. That it is in the interest of justice that this application is allowed and H.C.M.A No. 323 and H.C.C.S No 221of 2018 are reinstated and heard on merits.
It is observed at the outset that this application was brought under Section 98CPA as the enabling provision and Order 52 rule 1 and 2 CPR as the procedure. Both are general provisions and Section 98(supra) provides for the inherent powers of the court. It is settled law that provisions as to the inherent powers of court can only be invoked where there is no specific provision of the law under which an application should be brought. See: Adonia vs. Mutekanga  EA 618; and Ryan International Ltd & Others vs. United States of America  EA 675.
In the instant case, H.C.M.A No. 323 of 2018 arising from H.C.C.S No. 221 of 2018 was dismissed due to non-appearance of the Applicant herein and his counsel and in the presence of counsel for the 1st and 2nd Respondents, when the suit came up for hearing. The Applicant could have opted to bring this application under Order 9 rule 23 CPR, but he did not. Be that as it may, upon perusal of the record, it is observed that H.C.C.S No. 221 of 2018, from which H.C.M.A No. 323 of 2018 arises, is nonexistent having been dismissed on 6th February 2019 and since then it has never been reinstated. Oder 41rule 2(1) CPR provides that;
“In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction…”
In the case of E. L. T Kiyimba Kaggwa vs. Haji Abdu Nasser Katende Civil Suit No. 2109 of 1984, it was held, inter alia, that the granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserve matters in the status quo until the question to be investigated in the suit can be finally disposed of. The above provisions connote the existence of a pending suit before one can apply for a temporary injunction.
In the instant case, H.C.C.S No. 221 of 2018 was dismissed and has never been reinstated and H.C.M.A No. 323 of 2018 which the Applicant now seeks to reinstate by this application was dismissed on 10th September 2018 long after the main suit out of which it arose. Therefore, reinstating H.C.M.A No. 323 of 2018 would mean that the application for a temporary injunction is arising out of a nonexistent main suit hence a stand-alone application, which is legally untenable. For those reasons, the instant application for reinstatement is overtaken by events and it is dismissed with costs to the 1st Respondent.
BASHAIJA K. ANDREW
Parties and their counsel absent.
Ms. Jolly Kauma Court Clerk present.
Ruling read in Court.
BASHAIJA K. ANDREW