Wakilii

Busiku v Uganda Land Commission & Anor (HCT-04-CV-MA -0050- OF 2012)

High Court · [2017] UGHCCD 114 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of suit under O.9 r.23(1) of the Civil Procedure Rules
Decision
Dismissal set aside and matter to proceed to hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the applicant's illness and her counsel's mistake in attending the wrong court constituted sufficient cause for non-appearance under O.9 r.23 of the Civil Procedure Rules. Following established authority that mistakes of counsel should not be visited upon the litigant, the court set aside the dismissal. The court ordered costs thrown away to the respondents, to be assessed and paid at the end of the main trial.

Outcome

Dismissal set aside and matter to proceed to hearing on merits

Facts

The applicant brought an application to set aside the dismissal of Civil Suit 19/14 which had been dismissed for non-appearance on 7 February 2017. The applicant claimed she was ill and unable to attend court. Her counsel sent a colleague who attended the wrong court and failed to appear before the judge. The respondent opposed the application, arguing that the applicant had no sufficient cause, that counsel was present when the court gave instructions on 6 October 2016 adjourning the matter to 7 February 2017, and that the failure to attend was not excusable. Documentary evidence of the applicant's illness was adduced. The respondent sought taxed costs as a condition of reinstatement.

Issues

  1. Whether the applicant has shown sufficient cause for non-appearance when the suit was called for hearing.
  2. Whether taxed costs should be conditional upon the grant of reinstatement.

Orders

  • Application granted.
  • Dismissal of the suit set aside.
  • Applicant to pay costs thrown away to the respondents in this application.
  • Such costs to be assessed and paid at the end of the main trial regardless of outcome.
  • Prayer for taxed costs rejected.

Rules and key headnotes

Civil Procedure — Dismissal for Non-Appearance — Setting Aside Dismissal — Sufficient Cause
Under O.9 r.23 of the Civil Procedure Rules, where a suit is dismissed for non-appearance, the plaintiff may apply to set the dismissal aside if the court is satisfied there was sufficient cause for non-appearance, and the court shall make an order setting aside the dismissal upon such terms as to costs as it thinks fit.
Civil Procedure — Sufficient Cause — Mistake of Counsel — Effect on Litigant
Mistake of counsel should not be visited on the litigant. Such mistake of counsel has in most cases been interpreted as sufficient cause to set aside a dismissal, but with each case turning on its peculiar circumstances, on the principle that it would be unfair and unjust to penalise the applicant because of the negligence of the advocate.
Civil Procedure — Costs — Costs Thrown Away — Discretion of Court
Where an application to set aside a dismissal succeeds due to counsel's laxity, the court may order the applicant to pay costs thrown away to the respondent. Costs thrown away are costs arising from an order of court which requires a party whose conduct has resulted in the proceedings or any part of them being ineffective to pay the wasted costs, including the costs of the other party.

Legislation cited (3)

Cases cited (3)

  • Mary Kyomulabi v Ahmed Zirondemu (Civil Appeal No. 41 of 1979)
  • Zamu Nalumansi v Sulaiman Lule (Court of Appeal No. 2 of 1992)
  • Rwantale V Rwabutoga (1988-90) HCB 100

Full judgment

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

Busiku v Uganda Land Commission & Anor (HCT-04-CV-MA -0050- OF 2012) [2017] UGHCCD 114 (5 July 2017)
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.