Bulumela Farmers Cooperative Society v Uganda Development Bank (Civil Appeal No. 42 of 2013)

Court of Appeal · [2020] UGCA 99 · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from a High Court ruling dismissing an application to set aside dismissal of a civil suit for want of prosecution

Decision

Appeal dismissed; High Court ruling refusing to set aside dismissal of the suit upheld

The full judgment

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Holding

The Court of Appeal dismissed the appeal, holding that the trial judge exercised her discretion judiciously in refusing to set aside the dismissal of a suit dismissed for want of prosecution. The appellant failed to show sufficient cause for non-appearance, having neglected its suit for over two years and delayed seven-and-a-half years before applying for reinstatement. Allegations of fraud and forgery in the service of the hearing notice were not pleaded, were raised only on appeal, and were unproven; the onus of proving ineffective service and forgery lay on the appellant. The affidavits of service and in reply were not defective. The matter raised no question of general public importance.

Facts

In 1990 the appellant obtained a loan of USD 98,064 from the respondent to purchase edible oil extraction machinery. A tractor and lorry were supplied and acknowledged, but the oil extraction equipment was never procured. After default, the respondent demanded payment of Shs 899,748,939. The appellant filed HCCS No. 391 of 1997, repeatedly amended its pleadings, and withdrew it on 30 October 2002, filing HCCS No. 621 of 2002 the next day. For two years the appellant took no step to prosecute the new suit and failed to attend mediation sessions. The respondent set the suit down for hearing; due to the appellant's non-appearance it was dismissed in October 2004. Seven-and-a-half years later the appellant applied to set aside the dismissal, alleging the affidavit of service on its former counsel Emesu & Co. Advocates was forged and that an amicable settlement with NPART had been reached. The High Court dismissed the application, finding effective service and no sufficient cause.

Issues

Whether the appellant's previous counsel was effectively served with the hearing notice for the dismissed suit.
Whether the affidavit of service and affidavit in reply were forged or defective.
Whether the matter raised an issue of general public importance precluding disposal on procedural grounds.
Whether the appellant showed sufficient cause for non-appearance to justify setting aside the dismissal.
Whether the trial judge occasioned a substantial miscarriage of justice and improperly exercised her discretion.

Orders

This appeal is dismissed with costs in this court and the court below.

Key headnotes

Civil Procedure — Setting Aside Dismissal for Non-Appearance — Sufficient Cause under Order 9 rule 23

An applicant seeking to set aside the dismissal of a suit for non-appearance must show sufficient cause; the main test is whether the applicant honestly intended to attend the hearing and did his best to do so, with regard also to the nature of the case and whether a prima facie defence exists.

Civil Procedure — Want of Prosecution — Effect of Indolence and Delay on Reinstatement

A litigant who allows litigation to fall into indefinite abeyance, demonstrates no serious or settled intent to pursue it, and acts in knowing disregard of obligations to the court and the opposing party will not be permitted to reinstate the suit, particularly after lengthy and unexplained delay.

Evidence — Fraud and Forgery — Pleading and Burden of Proof

Fraud must not only be pleaded but particularised; allegations of fraud and forgery raised for the first time on appeal cannot be entertained, and the onus of proving forgery and ineffective service lies on the party alleging it.

Evidence — Affidavit of Service — Validity Where Deponent Acts on Knowledge of Process Served

An affidavit of service is not rendered defective merely because the identity of the clerk served is omitted, where the deponent deposes from his own knowledge and belief of how court process was effected; service on a firm of advocates still on record is effective service on the party.

Civil Procedure — Appellate Interference with Discretion of Trial Court

An appellate court will not interfere with the exercise of discretion by a trial judge unless there has been a failure to exercise discretion, failure to take account of a material consideration, taking into account an immaterial consideration, or an error in principle.

Legislation cited (6)

Civil Procedure Rules Order 9 rule 11
Civil Procedure Rules Order 9 rule 13
Civil Procedure Rules Order 9 rule 22
Civil Procedure Rules Order 9 rule 23
Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 30(1)
Constitution of Uganda Article 28

Cases cited (9)

Twiga Chemical Industries v Viola Bamusedde (Civil Appeal No. 16 of 2014)
Bank Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
Fredrick J.K Zaabwe v Orient Bank Ltd and 5 Others (Civil Appeal No. 4 of 2006)
Stephen Lubega v Barclays Bank (Civil Appeal No. 2 of 1992)
Attorney General v Oriental Construction Co. Ltd (Civil Appeal No. 19 of 1990)
Nicholas Roussos v Gulam Hussein Habib Virani & Another (Civil Appeal No. 9 of 1993)
Solland International Ltd v. Clifford Harris & Co [2015] EWHC 2018
Kabwimukya v Kasigwa (1978) HCB 251
Bugisu Cooperative Union Limited v Lawrence Kitts (Civil Appeal No. 50 of 2001)

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