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Byenkya v Mugisa (Miscellaneous Application 30 of 2023)

High Court · [2024] UGHC 435 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside an order dismissing a previous miscellaneous application (M.A. No. 07 of 2019) which sought to review and set aside a consent judgment
Decision
Application dismissed — earlier dismissal order (of M.A. No. 07 of 2019) remains in force

Observed later treatment

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Holding

The court dismissed an application to set aside an earlier dismissal order, holding that the applicant failed to demonstrate sufficient cause for non-appearance. The applicant, who had been substituted as a party after her husband's death, never personally appeared in court and offered no satisfactory explanation for her absence on the hearing date. The court rejected arguments that counsel's alleged mistake in timing should excuse the non-appearance, finding no evidence that counsel actually attended court. The preliminary objection challenging the respondent's affidavit under the Illiterate Protection Act was also dismissed for lack of evidence of illiteracy.

Outcome

Application dismissed — earlier dismissal order (of M.A. No. 07 of 2019) remains in force

Facts

The applicant's late husband had filed M.A. No. 07 of 2019 seeking to review and set aside a consent judgment entered in 2017. After his death in December 2019, the applicant obtained letters of administration and was substituted as a party. On 17 June 2022, when M.A. No. 07 of 2019 came up for hearing, neither the applicant nor her counsel appeared, and the application was dismissed for want of prosecution. The applicant then filed the present application (M.A. No. 30 of 2023) to set aside the dismissal order, claiming counsel had mistakenly believed the hearing was scheduled for 10:30 a.m. and arrived after the matter was called. The respondent opposed, arguing the applicant had never personally attended court despite being substituted as a party and had offered no sufficient cause for the non-appearance.

Issues

  1. Whether the Respondent's affidavit in reply is defective for failure to comply with the Illiterate Protection Act requirements.
  2. Whether there is sufficient cause shown by the Applicant to warrant reinstatement of the dismissed application.

Orders

  • Application dismissed with costs.
  • M.A. No. 16 of 2022, which was stayed pending determination of the present application, is dismissed with no order as to costs.

Rules and key headnotes

Civil Procedure — Applications to Set Aside Dismissal — Sufficient Cause for Non-Appearance
Under Order 9 rule 23 of the Civil Procedure Rules, a plaintiff may apply to set aside a dismissal order, but the court will only grant such relief where the applicant satisfies the court that there was sufficient cause for non-appearance when the suit was called for hearing.
Civil Procedure — Affidavits — Competence of Advocate as Witness
An advocate is not prohibited from swearing an affidavit in support of an application where the matters deposed to are within the advocate's personal knowledge, provided the advocate is not counsel in personal conduct of the matter, as the prohibition in Regulation 9 of the Advocates (Professional Conduct) Regulations is directed at preventing an advocate from acting simultaneously as counsel and witness in the same case.
Evidence — Illiterate Protection Act — Burden of Proof of Illiteracy
Where a respondent does not himself complain that he is illiterate and endorsed an affidavit without understanding its content, the burden is on the party challenging the affidavit to prove that the deponent is an illiterate unable to read and understand the document in question. Requesting an interpreter for oral court proceedings does not, without more, establish that the deponent is illiterate within the meaning of the Illiterate Protection Act.
Civil Procedure — Mistake of Counsel — Effect on Litigant's Rights
An alleged mistake of counsel regarding the time of a court hearing will not constitute sufficient cause for setting aside a dismissal order where there is no evidence that counsel actually attended court at any time on the scheduled date, and where the litigant herself failed to attend and offered no explanation for her absence.

Legislation cited (10)

  • Judicature Act s.33
  • Civil Procedure Act s.98
  • Civil Procedure Rules O.9 r.18
  • Civil Procedure Rules O.52 rr.1 & 2
  • Civil Procedure Rules O.9 r.22
  • Civil Procedure Rules O.9 r.23
  • Civil Procedure Rules O.9 r.1
  • Illiterate Protection Act s.3
  • Illiterate Protection Act s.1(b)
  • Advocates (Professional Conduct) Regulations Regulation 9

Cases cited (8)

  • Kesaala Growers Co-operative Society v Kakoza Jonathan and Another (Supreme Court Civil Appeal No. 19 of 2010)
  • Ngoma-Ngime Vs. E.C. & Anor EPA No. 11 of 2002
  • Stanbic Bank (U) Ltd v Ssenyonjo Moses and Another (Court of Appeal Civil Appeal No. 147 of 2012)
  • Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 08 of 1998)
  • Bankone Ltd v Simbamanyo Estates Ltd (Commercial Court Miscellaneous Application No. 645 of 2020)
  • Mbarara Municipal Council v Jethan Bros Ltd (Supreme Court Miscellaneous Application No. 10 of 2013)
  • Uganda Development Bank v Kasirye, Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Electro Maxx (U) Ltd Vs. Ory & Oil (U) Ltd H.C.M.A.

Full judgment

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

Byenkya v Mugisa (Miscellaneous Application 30 of 2023) [2024] UGHC 435 (19 April 2024)
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.