Wakilii

Bisaso v Nakkungu and 3 Others (Miscellaneous Application 1038 of 2022)

High Court · [2023] UGHCFD 130 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order of underlying civil suit for non-appearance
Decision
Dismissal order set aside; underlying civil suit reinstated for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant demonstrated sufficient cause for non-appearance on 6 April 2021 where he was personally present at the previous adjournment, the COVID-19 pandemic affected court operations in April 2021, and the Administrator General as 3rd respondent demonstrated no prejudice. The dismissal order was set aside and the underlying suit reinstated under Order 9 rule 18 of the Civil Procedure Rules and the court's inherent powers under section 98 of the Civil Procedure Act.

Outcome

Dismissal order set aside; underlying civil suit reinstated for hearing on merits

Facts

The applicant was the first plaintiff in HCCS No. 50 of 2018 concerning an estate matter. Default judgment was entered against the 1st, 2nd and 4th defendants. On 16 October 2020, the applicant appeared in court and the matter was adjourned to 6 April 2021, with the court encouraging mediation with the Administrator General. The applicant's counsel was not present at the October hearing. On 6 April 2021, neither the applicant nor his counsel appeared. The suit was dismissed under Order 9 rule 17 for non-appearance. The applicant alleged his former counsel misinformed him that the trial judge would not be in chambers due to COVID-19. He learned of the dismissal in August 2022 and brought this application to set aside the dismissal order.

Issues

  1. Whether the application warrants the setting aside of the ex parte order dismissing High Court Civil Suit No. 50 of 2018?

Orders

  • The order dismissing High Court Civil Suit No. 50 of 2018 dated 6th April 2021 is set aside.
  • High Court Civil Suit No. 50 of 2018 is reinstated and shall be heard and determined on its merits.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Setting Aside Dismissal Orders — Sufficient Cause — Test for Reinstatement
The test for reinstatement of a dismissed suit is whether the applicant honestly intended to attend the hearing and did his best to do so, and whether the applicant showed diligence in the matter.
Civil Procedure — Setting Aside Dismissal Orders — Sufficient Cause — Liberal Interpretation
The expression 'sufficient cause' under Order 9 rule 18 of the Civil Procedure Rules should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned.
Civil Procedure — Setting Aside Dismissal Orders — Counsel's Negligence — Attribution to Client
Where an applicant was personally present in court at the previous adjournment and his counsel was not, negligence cannot be attributed to the former counsel for the applicant's non-attendance at the subsequent hearing.
Civil Procedure — Setting Aside Dismissal Orders — COVID-19 Pandemic — Excusable Circumstance
The COVID-19 pandemic and its impact on court operations in April 2021 constitutes an excusable circumstance that may support a finding of sufficient cause for non-appearance, particularly where it would not be farfetched for a litigant to believe there was no hearing.
Civil Procedure — Setting Aside Dismissal Orders — Prejudice — Burden on Respondent
For a court to deny an application to set aside a dismissal order, the respondent must demonstrate that granting it would be prejudicial to him or her.

Legislation cited (4)

Cases cited (10)

  • Florence Nabatanzi v Naome Binsobedde (SC Civil Application No. 6 of 1987)
  • Nicholas Roussos v Gulamu Hussein Habit Viran and Others (SCCA No. 0 of 1993)
  • National Insurance Corporation v Mugenyi and Company Advocates [1987] HCB 28
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Nakiride v Hotel International Ltd [1987] HCB 85
  • Bishop Jacinto v The Uganda Catholic Lawyers Society and 2 Others (HCMA No. 696 of 2018)
  • Gideon Mosa Ochwali Vs. Kenya Oil Co. Ltd & Anor. [2017] KLR
  • Essavi v Solanki [1968] EA 218
  • Tiberio Okeny and Another v The Attorney General and Two Others (Civil Appeal No. 51 of 2001)
  • Attorney General v Nabco Enterprises Limited (Miscellaneous Civil Application No. 20 of 2018)

Full judgment

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

Bisaso v Nakkungu and 3 Others (Miscellaneous Application 1038 of 2022) [2023] UGHCFD 130 (19 September 2023)
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.