Wakilii

A P Bhimji Ltd v Michael Opkwo (Misc Application No. 423 of 2011)

High Court · [2012] UGHC 64 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate underlying civil suit
Decision
Application to reinstate suit dismissed; underlying suit remains dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to set aside dismissal of a suit and reinstate it was refused. The court held that a dismissal under Order 17 rule 4 operates as a final determination on the merits with res judicata effect, following Salem A. H Zaidi v F.H Humeidan. Unlike Order 9 rules 17-18, which expressly provide for reinstatement, Order 17 rule 4 contains no such provision. The applicant failed to take reasonable steps to appear or notify the defendant of the hearing date.

Outcome

Application to reinstate suit dismissed; underlying suit remains dismissed

Facts

A P Bhimji Ltd sued Michael Opkwo in 2006. Hearing commenced in May 2008 with plaintiff's testimony but cross-examination was not completed. The case was not listed again until April 2011, when counsel for the plaintiff undertook to serve a hearing notice on the defendant for a hearing fixed on 20 September 2011. On that date, neither counsel nor parties appeared and there was no evidence that the defendant had been served. The court dismissed the suit under Order 17 rule 4. The plaintiff applied to set aside the dismissal, citing counsel's wedding preparations on 16 September 2011 as the reason for non-attendance on 20 September 2011.

Issues

  1. Whether a suit dismissed under Order 17 rule 4 of the Civil Procedure Act can be reinstated.
  2. Whether the applicant took reasonable steps to appear in court on the scheduled hearing date.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Dismissal of Suit — Order 17 rule 4 — Finality and Res Judicata Effect
A dismissal of a suit under Order 17 rule 4 of the Civil Procedure Act operates as a decision on the merits and has the same effect as a dismissal upon evidence, creating res judicata in respect of the matters in issue.
Civil Procedure — Dismissal of Suit — Distinction Between Order 9 rule 17 and Order 17 rule 4
Unlike Order 9 rule 17, which provides an express right to apply for reinstatement under Order 9 rule 18, Order 17 rule 4 contains no provision for reinstatement of a dismissed suit.
Civil Procedure — Reinstatement of Suit — Test for Reasonable Steps
To justify reinstatement of a dismissed suit, an applicant must demonstrate that reasonable steps were taken to appear in court; failure to appear without evidence of service on the opposing party or arrangement for counsel to hold brief does not constitute reasonable steps.

Legislation cited (6)

Cases cited (3)

  • Salem A. H Zaidi v F.H Humeidan [1960] EA 92
  • Tariol Singh Sactgu v Roadmaster Cycles (U) Ltd (Court of Appeal Civil Appeal No. 46 of 2000)
  • Akamba Public Road Services Ltd v Davis Muchunguzi Mutabiirwa (Misc Application No. 155 of 2010)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A P Bhimji Ltd v Michael Opkwo (Misc Application No. 423 of 2011) [2012] UGHC 64 (13 April 2012)
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.