Court name
HC: Land Division (Uganda)
Case number
HCT-04-CV-MA-2015/225
Judgment date
23 March 2017

Magode v Waniaye (HCT-04-CV-MA-2015/225) [2017] UGHCLD 64 (23 March 2017);

Cite this case
[2017] UGHCLD 64
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV- MA- 225-2015

(ARISING OUT OF CIVIL APPEAL NO. 0014 OF 2012)

(ARISING OUT OF MISC. APPLICATION NO. 0067 OF 2006)

(AND ORIGINAL LAND SUIT NO. 18 OF 2006)

 

MAGODE JAMES IKUYA            ::::::::::::::::::::::::::::::::::::::::          APPLICANT

VERSUS

WANIAYE MAGIDU                     :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 

BEFORE: HON. JUSTICE HENRY I. KAWESA

 

RULING

 The applicant brought this application under section 98 of the Civil Procedure Act, O 43 R 16 of the Civil Procedure Rules and O 52 R 1 & 3 of the Civil Procedure Rules for orders that:

1. CS 0014/2012 dismissed on 08/4/2015 be readmitted.

2. Costs for the application be in the cause.

The grounds of the application are that:

1. The applicant could not prosecute the appeal because the file from which the appeal arose was in the lower court.

2. There was a pending application on the main file in the lower court.

The application is supported by the affidavit of Magode James Ikuya .

The Respondent opposed the application and filed an affidavit in reply by Waniaye Magidu. Applicant filed an affidavit in rejoinder.

During the hearing Counsel Mwambu for the Applicant referred to the affidavits of Magode Ikuya in support of the application and in rejoinder to argue that the applicant did not prosecute the matter in time due to absence of the main file. There was Misc. Application  002/2013 before the Chief Magistrate’s Court Mbale, and this led to the file being sent back to the lower court for trial. He argued that the matter is not res judicarta. He relied on the case of Motor Mart Uganda Ltd V Yona Kanyomozi SCCA 6/99, as cited in KLR 1999 at page 503 where court was of the view that locking out a litigant will cause an injustice then such an appeal should be heard on its merits. He prayed that this case be reinstated.

In reply Mutembuli for respondents opposed the application. He argued that no injustice will be caused to applicant because he transferred his interest in the suit property to his brother-in-law Mr. Wobujje Gomei.

He argued that these parties have litigated under several cases which the applicant kept on losing.

Applicant filed the appeal and he abandoned it. He referred to the chronology of the cases and noted that there was connivance in that applicant abandoned the appeal and instead filed CS 68/ 2014. This was dismissed in favour of respondent and it was after losing that suit that the current applicant moved to court to reinstate the dismissed appeal. He noted that the appeal was dismissed on 8th April 2015 and filed the application to reinstate in September 2015. He also noted that the Misc.  Application 2/ 2013 in the lower court was dismissed on 13th November 2014. He noted that the alleged letter requesting for the file to the time of dismissal, and alleged application for reinstatement on 8/4/2015 is a period of over 1 year of no action. This shows that he was not interested in prosecuting the case since the record was available.

 Applicant’s Counsel in rejoinder re-echoed his earlier submissions.

Having carefully considered the submissions and evidence before court, the law is that in the interest of justice court process should not be abused by filing matters and leaving them to drag on for years.

I have noted from the pleadings on record that the matter was dismissed on 8/4/2015. It is also true that there was MSC. 002/2013 before the Chief Magistrate between Wobuye Gomeyi and Magidu Waniaye and Magode James Ikuya. From paragraphs 6,7,8,9, the applicant shows that the delay to prosecute was because the file was in the High Court containing lower court proceedings, was forwarded  back to the lower court ( Chief Magistrate ) to try  the Misc. Application .

The Respondents in reply by affidavit  of Waniaye  Magidu  paragraph  5 and 14,15,16,17, avers  that the said  delay in prosecuting  the appeal was occasioned  by  applicant  himself who  kept on processing  unnecessary  matters in court including  Misc. Application  002/ 2013.

He argues that after finalization of hearing of Misc 002/2013 in 2014 the applicant took no step to move the file back to court.

 All in all it is clear from the set of pleadings above that applicant did not come to court with clean hands. As shown in the detailed analysis of the history of this matter by Counsel Mutembuli, basing on the affidavit of Waniaye Magidu. The applicant was responsible together with Wobujje Gomeyi for the calling of the file back by Counsel Dagira as per annex “A” ( Paragraph 5,6 & 7 of the applicant’s affidavit).

Applicant was aware that the matter in the High Court was dependent on that lower court file. However even  after completion  of the  hearing  of Misc Application  002/2013 by the Chief Magistrate  by 13th November 2014, there was no step taken  up to 8th April 2015 when the appeal was dismissed. For close to 6 months after determining Misc. Application 002/ 2013, still the appellant was sleeping on his right to appeal! This is deponed in paragraph 4 of the respondent’s affidavit in reply and it is not rebutted by applicant in his affidavit in rejoinder. It is an admission.

In Fitz Patrick V Bartger & Co. Ltd [1967] 2 ALLER 657, in a matter which had gone to sleep for nearly two years. Denning Mr. (as he then) was stated that;

It is the duty of the plaintiff’s advisor to get on with the case. Police policy demands that the business of courts should be conducted with expedition.

The action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.”

This case informs our case that a litigant who sleeps on his rights by going to sleep cannot wake up later and upon dismissal plead disability. This is the spirit of the holding in Victory Construction Company V Duggal [1962] EA 697, that:

Courts are provided with administrative machinery  aimed at helping it to disencumber  itself  of case records in which  the parties appear to have lost interest.”

It is my finding  that the facts  revealed by the affidavit in reply by the respondent, and annextures, when  checked out on  the court record, confirm the fact that applicant is guilty of being  lax and failing  to prosecute his own  appeal. No sufficient case exists on record to move this court to reinstate the appeal. A reinstatement would greatly occasion injustice to the respondent who has shown by affidavit that applicant has engaged him in endless fruitless litigations. I do not find merit in this application. It is dismissed with costs to Respondents.  

 

 

Henry I. Kawesa

JUDGE

23.03. 2017