Masaka court reinstates dismissed land appeal
A panel comprising Justices Cheborion Barishaki, Esta Nambayo and Musa Ssekaana allowed in part an appeal filed by Assumpta Nakimera against Charles Bagadde.
Masaka court reinstates dismissed land appeal
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The Court of Appeal has reinstated a land appeal that was dismissed by the High Court after the appellant failed to appear in court when the matter came up for hearing.
A panel comprising Justices Cheborion Barishaki, Esta Nambayo and Musa Ssekaana allowed in part an appeal filed by Assumpta Nakimera against Charles Bagadde.
The judges set aside the ruling and orders of the High Court at Masaka, which had dismissed Nakimera’s application seeking to reinstate her appeal.
The Court ordered that High Court Civil Appeal No.059 of 2019 be reinstated and heard on its merits by another judge other than the judge who handled the application for reinstatement.
The judges further ordered each party to bear their own costs of the appeal.
The decision arose from a dispute in which Nakimera had filed an appeal in the High Court at Masaka on November 5, 2019, challenging a judgment of the magistrates’ court in Civil Suit No.045 of 2016.
Court documents indicate that the appeal remained unprosecuted for about two years, prompting the High Court to fix it for hearing on November 11, 2021.
Court heard that the hearing notices were served on counsel for both parties. On the hearing date, Bagadde and his lawyer appeared in court, while Nakimera and her lawyer were absent.
According to the Court of Appeal judgment, the court record showed that Nakimera’s lawyer was served with the hearing notice for January 18, 2022.
However, neither Nakimera nor her lawyer appeared when the appeal was called for hearing, resulting in its dismissal for want of prosecution.
Nakimera subsequently filed a High Court application seeking reinstatement of the appeal, but the application was dismissed by Justice Lawrence Tweyanze on August 3, 2022.
She then appealed to the Court of Appeal, arguing that the High Court judge had failed to properly evaluate the evidence and had wrongly exercised his discretion in finding that she had not shown sufficient cause for failing to attend court.
Her lawyer, Rashid Kibuka, told the Court of Appeal that Nakimera had instructed advocates to prosecute the appeal and had followed up the matter by requesting a hearing date.
He argued that she had relied on her advocates’ advice that her personal attendance was not necessary and that the appeal was dismissed because of the advocates’ failure to attend court.
Kibuka also argued that the High Court judge wrongly considered whether Nakimera had diligently followed up the appeal instead of determining whether she had shown sufficient cause for her non-attendance.
The Court of Appeal agreed that the key issue was whether Nakimera had established sufficient cause for failing to attend the January 18, 2022 hearing.
The judge noted that service on counsel constituted service on the appellant through her duly appointed advocate, but said that, given the consequence of dismissing the appeal, the court should have taken additional steps to satisfy itself that Nakimera was personally aware that her appeal had been fixed for hearing.
The Court relied on previous Supreme Court decisions which held that a litigant’s interests should not ordinarily be defeated by mistakes or lapses of counsel.
Justice Nambayo found that Nakimera’s uncontested explanation that she was unaware that her case was coming up for hearing constituted sufficient cause under Order 43 Rule 16 of the Civil Procedure Rules.
The judge therefore held that the High Court had improperly exercised its discretion when it refused to reinstate the appeal.
However, the Court of Appeal declined Nakimera’s request to determine the substantive land dispute.
Justice Nambayo said the appeal before the Court of Appeal was limited to whether the High Court was right in refusing to reinstate the appeal.
She noted that the substantive appeal had never been heard and determined on its merits by the High Court and that the issues arising from it therefore remained for determination by that court.
The Court consequently ordered that High Court Civil Appeal No.059 of 2019 be reinstated and heard on its merits by another judge.
The Court of Appeal dismissed the remaining aspects of Nakimera’s appeal and ordered each party to bear their own costs.