Commissioner General of Customs & Excise East Africa v Home Garments Limited (Civil Appeal 44 of 1973)

Court of Appeal · [1974] UGCA 2 · 1974 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from the High Court order dismissing the suit for want of prosecution

Decision

Appeal allowed; matter remitted to the High Court for re-trial before another judge, commencing afresh from the pleadings

The full judgment

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Holding

The Court of Appeal (by majority) held that the trial judge erred in dismissing the suit for want of prosecution under Order 15 rule 4 after refusing an application for adjournment, without first calling upon the appellant to proceed with or prove its case, and without affording it an opportunity to be heard. A court dealing with an adjournment application may only allow or refuse it and make appropriate orders for costs; it may not, on that application alone, dismiss the suit. Spry, V.P. dissented, holding that counsel for the appellant had unequivocally taken the stand that he could not proceed. The appeal was allowed and the case ordered to be re-tried before another judge afresh from the pleadings.

Facts

The appellant sued the respondent for a sum of money allegedly due as duty payable on ready-made clothes imported into Uganda. The respondent admitted importing the goods but denied liability, asserting that any duties owing had been duly paid through the plaintiff's servants or agents. On the trial date, the agreed issue was whether the claimed duties had been paid. An argument arose over which party should begin, and the trial judge ruled that the plaintiff should begin. Counsel for the appellant said he was unable to start in view of the pleadings and sought leave to appeal, which was refused. He then applied for an adjournment to obtain witnesses, some of whom were in Kenya. Counsel for the respondent objected and applied for the suit to be dismissed with costs. The trial judge refused the adjournment and dismissed the suit for want of prosecution under Order 15 rule 4, without first calling upon the appellant to proceed with its case.

Issues

Whether the trial judge erred in dismissing the suit for want of prosecution under Order 15 rule 4 after refusing an application for adjournment.
Whether the appellant was entitled to be heard and called upon to proceed with its case before the suit was dismissed.

Orders

Appeal allowed.
Order of the High Court set aside.
Case ordered to be re-tried before another judge, the hearing to commence afresh from 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 — Powers of court on an application for adjournment

On an application for adjournment a court, in its discretion, may only allow or refuse the application and make such order for costs occasioned by it as it thinks fit; it is not entitled to make any other order, such as dismissal of the suit, on that application.

Civil Procedure — Dismissal of suit — Order 15 rule 4 — Right to be heard

Before a suit is dismissed the plaintiff has a right to be heard, and after an adjournment is refused the plaintiff must be called upon to proceed with or prove its case; only if the plaintiff then declines or is unable to do so may the suit be dismissed under Order 15 rule 4.

Civil Procedure — Want of prosecution — Misapplication of Order 15 rule 4

A suit cannot properly be dismissed 'for want of prosecution' under Order 15 rule 4, which concerns disposal on want of proof of the case; dismissal at the stage of an adjournment application deprives a party of its vested right to have its claim determined.

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.