Ggolooba v Kizito (Civil Appeal No.7 of 2006)
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Holding
The Supreme Court dismissed the appellant's second appeal. It upheld the Court of Appeal's finding that the respondent's advocate had shown sufficient cause for non-appearance, the advocate having understood that the parties were to settle. A mistake by an advocate should not be visited on the party, and it was unnecessary for the respondent to personally swear the affidavit. The objection that the affidavit was improperly sworn for lack of the commissioner's name was an afterthought not raised in the trial court or pressed in the Court of Appeal. The High Court order dismissing the suit was set aside and the suit reinstated for hearing on its merits.
Facts
The respondent's suit in the High Court was dismissed for non-appearance on the day of hearing. The respondent's advocate had not appeared because he was under the impression that the parties were to reach a settlement. The respondent applied to the High Court for reinstatement of the suit, but that application was refused. The respondent appealed to the Court of Appeal, which allowed the appeal, holding that the advocate had shown sufficient cause for non-appearance. The appellant brought a second appeal to the Supreme Court.
Issues
- Whether the Court of Appeal was correct in holding that the respondent's advocate had shown sufficient cause for not appearing at the hearing.
- Whether the respondent's affidavit was improperly sworn because it did not bear the name of the commissioner for oaths.
Orders
- Appeal dismissed with costs in the Supreme Court.
- The order of the High Court dismissing the suit is set aside.
- The suit is reinstated to be heard on its own merits.