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ABJ Engineering & Contractors Co. KSC v Align Electrical Group Company Limited, Kabumba Andrew & Kibenge Phillip (Miscellaneous Application 122 of 2023)

High Court · [2023] UGCOMMC 134 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of ruling ordering security for costs under Section 82 Civil Procedure Act
Decision
Order for security for costs modified to include 45-day time limit for compliance

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Review granted in part. Failure to consider submissions not on record at time of ruling does not constitute an error apparent on the face of the record where all evidence and facts were considered and no point raised in submissions was overlooked leading to an obviously wrong decision. However, an order for security for costs must specify a time limit for compliance, as non-compliance results in dismissal. Order modified to require security within 45 days.

Outcome

Order for security for costs modified to include 45-day time limit for compliance

Facts

The Applicant brought an application for review of a ruling in Miscellaneous Application No. 595 of 2022, which had ordered the Applicant to furnish security for costs in the underlying Civil Suit No. 796 of 2021. The Applicant contended that the ruling was rendered without considering its submissions, which had been lodged on ECCMIS on 17 August 2022 but were only admitted on 25 November 2022, over three weeks after the ruling was delivered on 3 November 2022. The Respondents opposed the application, arguing that failure to consider submissions is not an error apparent on the face of the record.

Issues

  1. Whether failure to consider submissions filed late constitutes an error apparent on the face of the record warranting review.
  2. Whether an order for security for costs that does not specify a timeframe for compliance is defective.

Orders

  • Review application granted in part.
  • The ruling in Miscellaneous Application No. 595 of 2022 is modified to require the Applicant to provide security for costs within forty-five (45) days from the date of this ruling.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Civil Procedure — Review — Grounds for Review — Error Apparent on Face of Record
A failure to consider submissions that were not on record at the time of preparing the ruling does not constitute an error apparent on the face of the record where all evidence and facts were considered by the court and no point canvassed in the submissions was overlooked leading to an obviously wrong decision.
Civil Procedure — Electronic Filing — ECCMIS — Date of Filing
Under the ECCMIS electronic filing system, the date on which documents are admitted by the Registrar is the date they are filed for purposes of the Civil Procedure Rules. Admission substitutes the stamping and endorsement that previously demonstrated completed filing.
Civil Procedure — Security for Costs — Order Requirements — Time Limit
An order requiring security for costs must specify the timeframe within which such security is to be provided, as non-compliance results in dismissal of the suit under Order 26 Rule 2(1) of the Civil Procedure Rules. An order without a time limit is an error apparent on the record, as the purpose for granting the order is defeated.
Civil Procedure — Affidavits — Representative Capacity — Authorization
There is no requirement to attach written approval to an affidavit deponed in representative capacity. The fact that an affidavit is prepared by advocates representing the parties and filed is sufficient evidence unless it is demonstrated that other parties did not authorize the deponent. The burden lies on the person seeking to impeach the affidavit's credibility to demonstrate lack of authorization.
Civil Procedure — Submissions — Role and Effect
Submissions do not constitute evidence and cannot take the place of pleadings and evidence. Courts are enjoined to consider submissions on record but are not bound by them. Many cases are decided without hearing submissions based only on evidence presented. Submissions constitute a party's opinion on the issue but failure to consider them is only an error if they raise a point the court should have considered leading to an obviously wrong decision.

Legislation cited (5)

Cases cited (23)

  • Colleb Katorogo and Another v GroFin SGB and Another (Miscellaneous Application No. 534 of 2021)
  • Re Nakivubo Chemists [1979] HCB 12
  • Yusuf v Nokrach [1971] EA 104
  • Mohammed Alibhai v W.E Bukenya Mukasa (Supreme Court Civil Appeal No. 56 of 1996)
  • Bamugaya Deo v Peter Tinkasimire and Another (Miscellaneous Application No. 90 of 2018)
  • Muhammad Hussein v Griffiths Isingoma Kakiiza and Others (Supreme Court Civil Appeal No. 8 of 1995)
  • Attorney General v Wazuri Medical Care Limited (Miscellaneous Application No. 283 of 2022)
  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • Pinnacle Projects v Business in Motion (Miscellaneous Application No. 362 of 2010)
  • Global Capital Save and Another v Alice Okiror and Another (Supreme Court Civil Appeal No. 57 of 2021)
  • Lawrence Martin Mugerwa v Mugubi Stephen and Another (Supreme Court Civil Appeal No. 15 of 2022)
  • Equity Bank Limited and Others v Simbamanyo Investments and Peter Kamya (Court of Appeal Civil Appeal No. 709 of 2022)
  • Femisa International Limited and Others v Equity Bank Ltd (Miscellaneous Application No. 357 of 2022)
  • Onesmus Bakanga and Another v UEDCL (Miscellaneous Application No. 1495 of 2020)
  • Geraldine Busingye Begumisa v EADB and Others (Miscellaneous Application No. 436 of 2022)
  • Jeremy Chelanga & Anor v The Board of Management Kamatony Primary School ELC 96/2016
  • Managing Director, NSSF and Others v Sara Namugerwa and 198 Others (Court of Appeal Civil Appeal No. 285 of 2016)
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR
  • Paul Odhiambo Onyango & another v Kalu Works Limited [2020] eKLR
  • Bernard Kiiru Mwangi v Faulu Microfinance Bank Limited [2021] eKLR
  • Allan Makula v First Finance Group (Miscellaneous Application No. 212 of 2022)
  • Beeline Travel Care and Another v Finance Trust Bank (Miscellaneous Application No. 296 of 2022)
  • Kaheru and Another v Zinorumuri David (Miscellaneous Cause No. 82 of 2017)

Full judgment

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ABJ Engineering & Contractors Co. KSC v Align Electrical Group Company Limited, Kabumba Andrew & Kibenge Phillip (Miscellaneous Application 122 of 2023) [2023] UGCommC 134 (30 June
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.