Wakilii

Commercial Farms of Uganda Ltd v Barclays Bank of Uganda (HCT-00-CC-MA 96 of 2008)

High Court · [2010] UGCOMMC 5 · 2010 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of miscellaneous application arising from consent judgment in civil suit
Decision
Application to set aside dismissal refused; underlying miscellaneous application remains dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to set aside dismissal of miscellaneous application dismissed. Court found conflicting explanations for counsel's non-appearance undermined the claim of sufficient cause. Even if sufficient cause existed, the underlying application sought an injunction against enforcement of a consent judgment without proper procedure for setting aside, varying, or staying the consent order. Reinstating an application with no prospect of success would waste court time.

Outcome

Application to set aside dismissal refused; underlying miscellaneous application remains dismissed

Facts

Commercial Farms of Uganda Ltd sought to set aside the dismissal of its Misc. Application No. 681 of 2008, which had been dismissed for non-appearance on 2 March 2009. The underlying application arose from a civil suit in which a consent judgment was entered on 6 October 2008, requiring the applicant to pay arrears of UGX 305,000,000 within 45 days, failing which the respondent bank could enforce its mortgage and debenture rights. The applicant's counsel claimed he misapprehended the hearing date as 3 March 2009 and recorded it incorrectly in his diary. However, the receiver deposed that counsel telephoned him on the evening of 2 March 2009 stating he had been unable to attend court because his mother had been admitted to hospital. This conflicting explanation was not rebutted. The underlying application sought to restrain the respondents from selling the applicant's properties and to lift the receivership, despite the consent judgment allowing such enforcement upon the applicant's default.

Issues

  1. Whether the dismissal of Misc. Application No. 681 of 2008 should be set aside on the ground of counsel's alleged mistake as to the hearing date.
  2. Whether the applicant demonstrated sufficient cause for non-appearance under Order 9 rule 23 of the Civil Procedure Rules.
  3. Whether the underlying application sought to be reinstated had merit or was procedurally proper.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Dismissal for Non-Appearance — Setting Aside — Sufficient Cause
Under Order 9 rule 23 of the Civil Procedure Rules, a plaintiff whose suit has been dismissed for non-appearance may apply to set aside the dismissal by satisfying the court that there was sufficient cause for the non-appearance. A mistake by counsel may constitute sufficient cause, but the court has discretion to assess the credibility and sufficiency of the explanation provided.
Civil Procedure — Counsel's Fault — Effect on Litigant
Mistakes, faults, lapses or dilatory conduct of counsel should ordinarily not be visited upon the litigant. However, where counsel provides conflicting explanations for non-appearance on oath without rebuttal, the court may question the credibility of the explanation.
Civil Procedure — Applications — Reinstatement — Futility
Where an application sought to be reinstated has no possibility of success and its reinstatement would be a waste of court time, the court will refuse to set aside the dismissal regardless of whether sufficient cause for non-appearance is established.
Civil Procedure — Consent Judgments — Enforcement — Improper Procedure
An application for an injunction to restrain enforcement of a consent judgment is not a proper procedure. A party dissatisfied with a consent judgment must either apply to set it aside, apply to vary its terms, move the court for contempt if the other party has abused it, or apply for a stay of execution.

Legislation cited (5)

Cases cited (4)

  • William Gubanza v Uganda Electricity Board (HCCS No. 571 of 1993)
  • Massa Vs Achen (1978) HCB 297
  • Andrew Bamanya v Shamsherali Zaye (CAC Application No. 70 of 2001)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 9 of 1998)

Full judgment

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

Commercial Farms of Uganda Ltd v Barclays Bank of Uganda (HCT-00-CC-MA 96 of 2008) [2010] UGCommC 5 (10 March 2010)
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.