Wakilii

Busingye & Anor v Gianluigi & Anor (HCT-00-CC-MA 203 of 2013)

High Court · [2014] UGCOMMC 66 · 2014 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of earlier application arising from ex parte judgment in civil suit
Decision
Dismissal of Misc. Application No. 113 of 2013 set aside; application reinstated for hearing on merits.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court found that a legal assistant in a law firm may competently swear an affidavit on non-contentious aspects of a matter handled by the firm where the information is within his knowledge. However, an advocate in personal conduct of a matter cannot swear an affidavit on contentious matters; such an affidavit is incurably defective and must be struck out. The Court held that negligence of counsel cannot be visited on the client. Where counsel failed to inform the client of the hearing date, sufficient cause was established to set aside the dismissal.

Outcome

Dismissal of Misc. Application No. 113 of 2013 set aside; application reinstated for hearing on merits.

Facts

The respondents filed Civil Suit No. 415 of 2012 against the applicants. Summons were served on the applicants' former lawyers M/S Bitangaro and Co. Advocates. The applicants failed to file a written statement of defence within the prescribed time, and the respondents obtained an ex parte judgment under Order 9 rule 6 of the CPR on 14 November 2012. The applicants, now represented by Geoffrey Nangumya & Co. Advocates, filed Misc. Application No. 113 of 2013 seeking to stay execution of the ex parte judgment, set it aside, and be allowed to file a defence. On 25 March 2013, when Misc. Application No. 113 of 2013 came up for hearing, it was dismissed for non-appearance of the applicants and their counsel. The applicants claim they were not informed of the hearing date because their lawyer's clerk failed to retrieve the notice of motion from the registry. The applicants then filed this application under Section 98 of the Civil Procedure Act and Order 9 rule 23 of the CPR seeking to set aside the dismissal and reinstate Misc. Application No. 113 of 2013.

Issues

  1. Whether the affidavit in support of the application was competent given it was sworn by a legal assistant rather than counsel or the client.
  2. Whether the affidavit in reply sworn by counsel with personal conduct of the matter was competent.
  3. Whether there was sufficient cause shown to set aside the dismissal of Misc. Application No. 113 of 2013 and reinstate the application.

Orders

  • Application granted.
  • Dismissal of Misc. Application No. 113 of 2013 is set aside.
  • Misc. Application No. 113 of 2013 is reinstated.
  • Applicants to pay the taxed costs of this application to the respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Competence — Legal Assistant Deposing Affidavit
A legal assistant working in a law firm handling a matter may competently swear an affidavit on non-contentious aspects of that matter where the information is within the assistant's knowledge by virtue of the common practice of discussion and consultation within the firm. Instructions are ordinarily given to a law firm rather than an individual lawyer, and any lawyer or legal assistant in that firm may swear an affidavit on non-contentious matters related to cases the firm is handling.
Evidence — Affidavits — Source of Information — Legal Assistant
Where a legal assistant in a law firm swears an affidavit on matters within the firm's knowledge, such as whether counsel appeared in court on a particular date, the assistant is not required to disclose the source of that information if it forms part of the ordinary knowledge shared within the firm. Order 19 rule 3 of the Civil Procedure Rules does not require disclosure of the source of information for matters within the deponent's direct knowledge.
Civil Procedure — Affidavits — Advocate in Personal Conduct — Contentious Matters
An advocate who has personal conduct of a matter and appears before the court in that matter is prohibited by regulation 9 of the Advocates (Professional Conduct) Regulations S.I. 267-2 from swearing an affidavit containing contentious matters or evidence on the merits in that same matter. The only exception is where the evidence is on a formal or non-contentious matter or fact. An affidavit sworn in violation of this rule is incurably defective and must be struck out.
Civil Procedure — Setting Aside Dismissal — Sufficient Cause — Test
For an application to set aside a dismissal under Order 9 rule 23 of the Civil Procedure Rules, the main test is whether the applicant honestly intended to attend the hearing and did his best to do so. Other relevant considerations are the nature of the case and whether there is a prima facie defence to the case.
Civil Procedure — Negligence of Counsel — Cannot Be Visited on Client
Mistake of counsel, however reckless or negligent, cannot be visited on the litigant. Once a party instructs counsel, counsel assumes control over the case and conducts it throughout; the party cannot be expected to share the conduct of the case with counsel or follow up the matter in court when counsel has been instructed to prosecute the application. Negligence or omission on the part of counsel does not deprive the client of the right to a hearing on the merits.

Legislation cited (5)

Cases cited (15)

  • Caspair Ltd v Harry Gandy (1962) EA 414
  • Life Insurance Co. of India v Panesar [1967] EA 614
  • Jayantilal Amratlal Bhimji & Another v Prime Finance Company Ltd (Misc. Application No. 467 of 2007)
  • G.W Mulindwa v Joseph Kisubika [1994] II KALR 72
  • Horizon Coaches Ltd v James Mujuni & Another (HCMA No. 55 of 2011)
  • Girado v ALAM [1971] EA 448
  • National Insurance Corporation v Mugyenyi & Co. Advocates [1987] HCB 28
  • David Kato Luguza and Another v Evelyn Nakafeero and Another (High Court Civil Appeal No. 37 of 2011)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Stone Concrete Ltd v Jubilee Insurance Co. Ltd (Misc. Application No. 385 of 2012)
  • Commercial Farms of Uganda Ltd v Barclays Bank (Misc. Application No. 96 of 2008)
  • Hikimanay Kyamanywa v Sajjabi Chris (Court of Appeal Civil Appeal No. 1 of 2006)
  • Nicholas Roussos v Gulamhussein Habib Virani & Another (Civil Appeal No. 9 of 1993)
  • Ms United Office Equipment & Stationary Supply EA v Uganda Bookshop Ltd [1987] HCB 90
  • Yowasi Kabiguruka v Samuel Byarufu (C.A.C.A No. 18 of 2008)

Full judgment

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

Busingye & Anor v Gianluigi & Anor (HCT-00-CC-MA 203 of 2013) [2014] UGCommC 66 (30 May 2014)
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.