Wakilii

Abdul & Another v South Gate Properties Limited & Another (Miscellaneous Application 1035 of 2024)

High Court · [2024] UGHCLD 196 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order for want of prosecution in civil suit
Decision
Dismissal order set aside; suit reinstated for hearing on merits

Observed later treatment

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Holding

The court held that where counsel for the applicant failed to attend court due to illness and sent a legal assistant to inform the court and opposing counsel, this constitutes sufficient cause to set aside a dismissal order for want of prosecution under Order 9 rule 23 of the Civil Procedure Rules. The court further held that counsel in personal conduct may swear an affidavit on non-contentious matters within their knowledge, including reasons for their own non-attendance, without contravening Regulation 9 of the Advocates (Professional Conduct) Regulations.

Outcome

Dismissal order set aside; suit reinstated for hearing on merits

Facts

The applicants' civil suit (H.C.C.S No. 344 of 2021) was dismissed for want of prosecution on 23 April 2024 when their counsel failed to appear. Counsel averred that he had been diagnosed with malaria on 22 April 2024, was put on intravenous treatment, and sent his legal assistant to court to inform the judge and opposing counsel of his inability to attend. Counsel also informed the applicant's witness not to attend court. The respondents disputed that counsel was suffering from malaria, stating that the legal assistant had informed court that counsel was suffering from red eyes. Counsel rejoined that he had been suffering from conjunctivitis but was grounded by a malaria attack requiring bed rest. The applicants sought to set aside the dismissal order under Order 9 rule 23 of the Civil Procedure Rules. The respondents raised a preliminary objection that the affidavit in support sworn by counsel in personal conduct was incompetent under Regulation 9 of the Advocates (Professional Conduct) Regulations.

Issues

  1. Whether H.C.C.S No. 344 of 2021 can be reinstated and whether there are grounds for reinstatement thereof.
  2. Whether the affidavit in support of the application sworn by counsel in personal conduct in a contentious matter is competent.

Orders

  • The dismissal order in Civil Suit No 344 of 2021 is hereby set aside and suit reinstated.
  • Civil suit No.344 of 2021 be set down for hearing on its merits.
  • No orders as to costs.

Rules and key headnotes

Civil Procedure — Dismissal for Want of Prosecution — Sufficient Cause — Test for Reinstatement
The test for setting aside a dismissal for want of prosecution under Order 9 rule 23 is whether the party honestly intended to be present at the hearing and did their best to attend. 'Sufficient cause' should receive a liberal construction to advance substantial justice where no negligence, inaction or want of bona fides is imputed to the party.
Civil Procedure — Advocates — Regulation 9 Professional Conduct Regulations — Counsel as Witness and Advocate
Regulation 9 of the Advocates (Professional Conduct) Regulations does not prohibit an advocate in personal conduct from swearing an affidavit on non-contentious matters or facts within their knowledge. An advocate may give evidence by affidavit on formal or non-contentious matters even in cases they are handling, provided they are not required to give contentious testimony.
Civil Procedure — Counsel's Illness — Non-Appearance — Sufficient Cause
Where counsel is prevented from attending court due to illness and takes steps to inform the court and opposing counsel through a legal assistant, this constitutes sufficient cause to set aside a dismissal order under Order 9 rule 23, particularly where the illness prevented counsel from acting diligently and the litigant intended to attend but was advised not to by counsel.

Legislation cited (7)

Cases cited (7)

  • National Insurance Corporation v Mugenyi & Co. Advocates [1997] HCB 28
  • Gideon Mosa Onchwati v Kenya Oil Co. Ltd & Anor [2017] KLR 650
  • Nakiridde v Hotel International Ltd [1987] HCB 85
  • Uganda Development Bank v Kasirye Byaruhanga & Co. Advocates (SCCA No. 35 of 1994)
  • Yunusu Ismail v Alex Kamukama & Ors (Civil Appeal No. 7 of 1987)
  • Three Ways Shipping Services Group v MTN (U) Ltd (Miscellaneous Application No. 584 of 2013)
  • Bauman (U) Ltd v Serwanga [1975] HCB 75

Full judgment

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

Abdul_&_Another_v_South_Gate_Properties_Limited_&_Another_(Miscellaneous_Application_1035_of_2024)_[2024]_UGHCLD_196_(23_July_2024)
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.