The Commissioner General Of Customs and Excise East Africa v Home Garment s Limited (Civil Appeal 44 of 1973)

Court of Appeal · [1974] UGCA 1 · 1974 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a High Court order dismissing the suit

Decision

Matter remitted to the High Court for re-trial before another judge

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

By majority, the Court of Appeal allowed the appeal. The trial judge, having refused the appellant's adjournment application, erred in immediately dismissing the suit under Order 15 rule 4 without first calling upon the appellant to proceed with or rest his case, thereby depriving him of the right to have his claim heard. The reference to dismissal 'for want of prosecution' under Order 15 rule 4 was wrong. The Court set aside the dismissal and ordered a fresh trial before another judge, commencing from the close of pleadings. Spry, V.P. dissented, taking the view that counsel for the appellant had unequivocally stated he could not proceed and should not be heard to say otherwise.

Facts

The appellant Commissioner General sued the respondent company for import duty allegedly payable on ready-made clothes imported into Uganda, alleging the goods were removed without payment of duty. The respondent admitted importing the goods but denied liability, asserting any duties due had been paid through the plaintiff's servants or agents. At trial the agreed issue was whether the duties claimed had been paid. An argument arose over which party should begin, and the trial judge ruled the plaintiff was to begin. Appellant's counsel said he was unable to start and applied for leave to appeal, which was refused. He then applied for an adjournment to obtain witnesses, some of whom were in Kenya. The trial judge refused the adjournment and dismissed the suit 'for want of prosecution' under Order 15 rule 4 with costs, without first calling upon the appellant to proceed with the witnesses available.

Issues

Whether the trial judge erred in dismissing the suit for want of prosecution under Order 15 rule 4 after refusing the plaintiff's application for an adjournment.
Whether the trial judge was obliged to call upon the plaintiff to proceed with his case before dismissing the suit.

Orders

Appeal allowed.
Order of the High Court set aside.
Case ordered to be re-tried before another judge, commencing afresh from the end of the pleadings.
Costs in the High Court to abide the result of the re-trial.
Costs of the appeal awarded to the appellant.

Key headnotes

Civil Procedure — Adjournments — Court's discretion under Order 15 rule 1

On an application for an adjournment, the court may in its discretion allow or refuse it and make such order for costs as it thinks fit, but it is not entitled to make any other order on such an application.

Civil Procedure — Dismissal of suit — Right to be heard before dismissal

Before a suit may be dismissed, the party affected has a right to be heard; a court errs in dismissing a suit immediately upon refusing an adjournment without first calling upon the plaintiff to proceed.

Civil Procedure — Order 15 rule 4 — Conditions for dismissal for failure to prove case

Dismissal of a suit under Order 15 rule 4 is permissible only where, after the plaintiff has been called upon to proceed, the plaintiff declines or is unable to prove the case; dismissal 'for want of prosecution' is not a proper basis under that rule.

Legislation cited (3)

Civil Procedure Rules Order 15 rule 4
Civil Procedure Rules Order 15 rule 1(1)
Civil Procedure Rules Order 15 rule 1(2)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.