Wakilii

Businge v China Railways No. 5 Engineering Group Corporation Limited and 2 Others (Miscellaneous Application No. 62 of 2020)

High Court · [2021] UGHCCD 181 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit arising from Civil Suit No. 53 of 2016
Decision
Application dismissed for being wrongly brought and incompetent due to failure to comply with service requirements

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside the dismissal order on two grounds. First, the applicant invoked the wrong procedural rule — the suit had been dismissed under Order 9 rule 17 CPR when neither party appeared, not under Order 9 rule 22 or 27 as pleaded. Second, the application was incompetent because the applicant failed to serve the respondents within 21 days of issue as required by Order 5 rule 1(2) CPR and did not apply for an extension of time within the prescribed 15-day period.

Outcome

Application dismissed for being wrongly brought and incompetent due to failure to comply with service requirements

Facts

The applicant filed Civil Suit No. 53 of 2016 for trespass, recovery of land, and damages. The suit was fixed for hearing on 16 July 2020. On that date, neither the applicant nor the respondents appeared, though counsel holding brief for the applicant was present. The suit was dismissed for want of prosecution. The applicant filed this application on 17 July 2020 seeking to set aside the dismissal order, claiming he had been prevented from entering the court premises by security personnel enforcing COVID-19 protocols. The Notice of Motion was issued on 27 July 2020 but was not served on the respondents until December 2020, almost five months later. The respondents objected on grounds that the application was brought under the wrong rule and that service was effected out of time without seeking an extension.

Issues

  1. Whether the application was brought under the correct provision of the Civil Procedure Rules.
  2. Whether the application was competent having regard to the failure to serve the respondents within the time prescribed by law.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Dismissal of Suit — Reinstatement — Applicable Provision Where Neither Party Appears
Where a suit is dismissed under Order 9 rule 17 CPR because neither party appeared when the suit was called for hearing, an application to set aside the dismissal must be brought under Order 9 rule 18 CPR, not under Order 9 rule 22, 23, or 27 CPR, which apply to different circumstances of dismissal.
Civil Procedure — Service of Process — Time Limits — Extension of Time
A Notice of Motion must be served within 21 days from the date of issue as required by Order 5 rule 1(2) CPR. Where service is not effected within that period, the applicant must apply for an extension of time within 15 days after the expiration of the initial 21-day period, showing sufficient reasons. Failure to comply renders the application incompetent and liable to dismissal.
Civil Procedure — Service of Process — Consequence of Non-Compliance
Where a Notice of Motion is served outside the prescribed time limit and no application for extension of time has been made or granted, the application is incompetent and must be dismissed regardless of the merits of the underlying claim.

Legislation cited (7)

  • Civil Procedure Rules O.9 r.27
  • Civil Procedure Rules O.9 r.23
  • Civil Procedure Rules O.9 r.22
  • Civil Procedure Rules O.9 r.17
  • Civil Procedure Rules O.9 r.18
  • Civil Procedure Rules O.5 r.1(2)
  • Civil Procedure Act s.98

Cases cited (10)

  • Stewards of Gospel Talent Ltd v Nelson Onyango and 7 Others (High Court Civil Appeal No. 14 of 2008)
  • Pinnacle Project Ltd v Business in Motion Consultants (High Court Miscellaneous Application No. 362 of 2010)
  • Nicholas Roussos v Gulam Hussein Habib Virani and Another (Supreme Court Civil Appeal No. 09 of 1993)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Edison Karyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 06 of 2004)
  • Kwesiga George v Iganga Municipal Council and Another (High Court Miscellaneous Application No. 003 of 2016)
  • Fredrick James Jjunju and Another v Madhivan Group Ltd and Another (High Court Miscellaneous Application No. 688 of 2015)
  • Michael Mulo Mulaggussi v Peter Katabalo (High Court Miscellaneous Appeal No. 006 of 2016)
  • Amdan Khan v Stanbic Bank (U) Ltd (High Court Miscellaneous Application No. 900 of 2013)
  • Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2005)

Full judgment

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

Businge v China Railways No. 5 Engineering Group Corporation Limited and 2 Others (Miscellaneous Application No. 62 of 2020) [2021] UGHCCD 181 (22 September 2021)
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.