Zubeida v Oyee and 2 Others (Civil Application 95 of 2019)

Court of Appeal · [2020] UGCA 2160 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to set aside an order dismissing an earlier civil application and to reinstate it for hearing on its merits

Decision

Application to set aside dismissal and reinstate Civil Application No. 388 of 2017 dismissed

The full judgment

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Holding

The Court of Appeal, sitting as a single Justice, dismissed an application to set aside the dismissal of an earlier civil application and reinstate it. The court held that an applicant seeking reinstatement under Rule 56(3) must show sufficient cause for absence, free of negligence, inaction or want of bona fide. The applicant deponed to no affidavit of her own, relied on hearsay assertions in her Counsel's affidavit, gave contradictory accounts of Counsel's whereabouts on the hearing date, and had failed to serve the dismissed application on the first respondent for over three years contrary to Rule 50(5). The applicant therefore failed to establish sufficient cause.

Facts

Civil Application No. 388 of 2017, brought by the applicant against the three respondents, was dismissed by a single Justice (Egonda-Ntende, JA) on 28.02.2019 under Rule 56(1) when all parties and Counsel were absent. The applicant applied to set aside that dismissal and reinstate the application. Through her Counsel's affidavit, she claimed Counsel Siraj Ali had appeared at 12.00 p.m., was told the matter was stood over to 2.00 p.m., then left to stand surety at Nabweru Court, asking colleague Amar Ali to attend instead. Amar Ali claimed he sat in the wrong court and only later learned the application had been dismissed. The applicant herself filed no affidavit and was absent at the hearing of the reinstatement application. The first respondent asserted he had never been served with the pleadings of Civil Application No. 388 of 2017 for over three years, an assertion the applicant left uncontested.

Issues

Whether the applicant established sufficient cause for the absence of herself and her Counsel when Civil Application No. 388 of 2017 was called for hearing and dismissed.
Whether the order dismissing Civil Application No. 388 of 2017 should be set aside and the application reinstated for hearing on its merits.

Orders

The application is dismissed.
No order is made as to costs.

Key headnotes

Civil Procedure — Reinstatement of Dismissed Application — Sufficient Cause under Rule 56(3)

An applicant seeking to set aside the dismissal of an application and have it reinstated under Rule 56(3) of the Court of Appeal Rules must show sufficient cause for the absence at the hearing, demonstrating that there was no negligence, inaction or want of bona fide on the part of the applicant or Counsel.

Civil Procedure — Sufficient Cause — Liberal Construction

The term sufficient cause should receive a liberal construction to advance substantial justice, but there must be no imputation of negligence, inaction or want of bona fide on the part of the party asserting it.

Evidence — Affidavits — Hearsay and Statements from the Bar

Assertions made by Counsel from the Bar, who was not a witness and gave no sworn evidence, are of least value to the court; and hearsay assertions in an affidavit, deposed by one who only heard them from another, cannot be acted upon as proved facts.

Civil Procedure — Service of Process — Rule 50(5)

A Notice of Motion and copies of all affidavits must be served on all necessary parties not less than three clear days before hearing; persistent failure to serve a dismissed application on a respondent over several years demonstrates inaction and undermines any claim to sufficient cause.

Legislation cited (3)

Judicature (Court of Appeal Rules) Directions, SI 13-10 Rule 56(3)
Judicature (Court of Appeal Rules) Directions, SI 13-10 Rule 56(1)
Judicature (Court of Appeal Rules) Directions, SI 13-10 Rule 50(5)

Cases cited (2)

Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] e KLR
Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society and Others (Miscellaneous Application No. 696 of 2019)

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