Wakilii

Ballore Transport and Logistics Limited v Tulsa Investment Limited (Miscellaneous Application No. 574 of 2021)

High Court · [2022] UGCOMMC 73 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit
Decision
Dismissal order set aside and suit reinstated for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court struck off the Respondent's Affidavit in reply for being filed more than one year after the Application without leave of Court, in contravention of Order 12 rule 3(2) of the Civil Procedure Rules. The court found that counsel's mistake in having a conflicting court engagement constituted sufficient cause for non-appearance under Order 9 rule 23, though the Applicant failed to act diligently by not sending a representative or following up. The dismissal order was set aside and the suit reinstated to ensure the right to a fair hearing under Article 28 of the Constitution, with costs awarded against the Applicant.

Outcome

Dismissal order set aside and suit reinstated for hearing on merits

Facts

Civil Suit No. 988 of 2018 was fixed for mention on 16 December 2020. The Applicant's Counsel failed to appear because he had another matter scheduled for hearing the entire morning in a different Court that had been scheduled before this case. The suit was subsequently dismissed for want of prosecution on 26 March 2021. The Applicant filed this Application on 20 April 2021 seeking to set aside the dismissal order. The Respondent filed an Affidavit in reply on 12 May 2022, more than one year after the Application was filed and without seeking leave to file out of time. The Applicant raised a preliminary objection to the late filing. The Applicant had been served with hearing notices for 16 December 2020 but did not send a representative to seek an adjournment, nor did the Applicant follow up on the outcome until learning of the dismissal over three months later.

Issues

  1. Whether the Respondent's Affidavit in reply should be struck off for being filed out of time without leave of Court.
  2. Whether the Applicant demonstrated sufficient cause for non-appearance when the suit was called for hearing on 26 March 2021.
  3. Whether the order dismissing Civil Suit No. 988 of 2018 should be set aside and the suit reinstated.

Orders

  • The Respondent's Affidavit in reply is struck off the Court record for being filed out of time without leave of Court.
  • The Order dismissing Civil Suit No. 988 of 2018 is set aside.
  • Civil Suit No. 988 of 2018 is reinstated.
  • Costs of this Application shall be met by the Applicant.

Rules and key headnotes

Civil Procedure — Affidavits in Reply — Time Limits — Filing Out of Time Without Leave
Under Order 12 rule 3(2) of the Civil Procedure Rules, a reply to an application must be filed within fifteen days from the date of service. Where a party files an affidavit in reply outside the prescribed time without seeking leave of Court, the affidavit is liable to be struck off the record.
Civil Procedure — Setting Aside Dismissal Orders — Sufficient Cause — Mistake of Counsel
A mistake by an advocate, though negligent, may be accepted as sufficient cause for non-appearance under Order 9 rule 23 of the Civil Procedure Rules, particularly where counsel had a conflicting court engagement that had been scheduled earlier.
Civil Procedure — Setting Aside Dismissal Orders — Diligence — Duty to Send Representative or Follow Up
Even where sufficient cause for non-appearance is established, a party who receives hearing notices but fails to send a representative to seek an adjournment or to follow up on the outcome for over three months has not acted diligently and may be penalised in costs.
Civil Procedure — Right to Fair Hearing — Constitutional Guarantee — Article 28
For purposes of ensuring the right to a fair hearing as guaranteed under Article 28 of the Constitution, a court may set aside a dismissal order and reinstate a suit to allow a party to be heard on the merits, notwithstanding lack of diligence, but may impose costs on the defaulting party.

Legislation cited (7)

Cases cited (2)

  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010)
  • Nicholas Roussos v Ghulam Hussein Habib Virani (Civil Appeal No. 9 of 1993)

Full judgment

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

Ballore Transport and Logistics Limited v Tulsa Investment Limited (Miscellaneous Application No. 574 of 2021) [2022] UGCommC 73 (24 June 2022)
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.