Wakilii

Ddamulira v Mss xsabo power Limited (Civil Miscellaneous Application No. 46 of 2021)

High Court · [2021] UGHCCD 54 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order arising from the main suit
Decision
Application dismissed; applicant advised to file fresh suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a plaintiff fails to take out Summons for Directions within 28 days of the last reply as required by Order XIA Rule 2 of the Civil Procedure Rules, the suit abates under Rule 6. The remedy is to file a fresh suit, not to apply for reinstatement. An affidavit commissioned by an advocate without a valid practicing certificate is null and void and cannot be cured under Section 14A of the Advocates Act. Application dismissed with costs.

Outcome

Application dismissed; applicant advised to file fresh suit

Facts

The applicant brought an application seeking to set aside an order dated 18 March 2021 dismissing the main suit for non-appearance. The main suit (H.C.C.S. No. 21 of 2020) had been set for hearing on 18 March 2021. The respondent's amended Written Statement of Defence was filed on 18 February 2021. The applicant failed to file Summons for Directions within 28 days of the rejoinder filed on 15 February 2021. On the hearing date, the applicant did not appear in court. The respondent raised the issue that the plaintiff had not taken out Summons for Directions as required under Order XIA of the Civil Procedure Rules. The trial court dismissed the suit under Order 17 Rule 4 of the Civil Procedure Rules. The applicant filed this application under Order 9 Rule 23 seeking reinstatement. The respondent opposed the application and raised preliminary objections concerning the validity of the supporting affidavit and the proper remedy.

Issues

  1. Whether the dismissal of the main suit under Order 17 Rule 4 of the Civil Procedure Rules was proper where the plaintiff failed to file Summons for Directions.
  2. Whether an affidavit commissioned by an advocate without a valid practicing certificate is valid.
  3. Whether an affidavit filed in support of a Notice of Motion attracts separate stamp duty.

Orders

  • Application dismissed with costs.
  • Applicant advised to file a fresh suit.
  • Right of appeal explained.

Rules and key headnotes

Civil Procedure — Summons for Directions — Effect of Failure to File — Abatement of Suit
Where a plaintiff fails to take out Summons for Directions within 28 days from the date of the last reply or rejoinder as required by Order XIA Rule 2 of the Civil Procedure Rules, the suit abates under Order XIA Rule 6.
Civil Procedure — Abatement of Suit — Remedy — Fresh Suit
The remedy once a suit abates under Order XIA Rule 6 of the Civil Procedure Rules is to file a fresh suit subject to the law of limitation, not to apply for reinstatement under Order 9 Rule 23.
Civil Procedure — Affidavits — Validity — Commissioner for Oaths Without Valid Practicing Certificate
An affidavit commissioned by a Commissioner for Oaths who does not hold a valid practicing certificate at the time of commissioning is null and void. The powers of a Commissioner for Oaths are dependent on holding a valid practicing certificate.
Civil Procedure — Advocates Act Section 14A — Scope of Application
Section 14A of the Advocates Act as amended applies only to cases where an advocate acting lawfully with a valid practicing certificate is denied audience. It does not cure nullity arising from an advocate commissioning an affidavit without a valid practicing certificate.
Civil Procedure — Stamp Duty — Affidavits Filed in Support of Notice of Motion
An affidavit filed in support of a Notice of Motion is part of the application under Order 52 Rule 3 of the Civil Procedure Rules and does not attract separate stamp duty. Only affidavits filed as independent documents attract stamp duty under the Stamp Duty Act.
Civil Procedure — Order 17 Rule 4 — Misapplication — Failure to File Summons for Directions
Order 17 Rule 4 of the Civil Procedure Rules, which vests a judicial officer with discretion to decide a suit when a party fails to produce evidence, does not apply where the plaintiff fails to file Summons for Directions. These are two distinct procedural failures.

Legislation cited (14)

Cases cited (5)

  • A.P Bhimji Ltd v Michael Opkno (Miscellaneous Application No. 423 of 2011)
  • Proline Soccer Academy Ltd v Lawrence Mulindwa and 4 Others (High Court Miscellaneous Application No. 45 of 2009)
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Mathias Lwanga Kaganda v UEB (Civil Suit No. 124 of 2003)
  • Hard Rock Quarry (U) Limited v Commissioner Land Registration and Another (High Court Civil Appeal No. 115 of 2015)

Full judgment

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

Ddamulira v Mss xsabo power Limited (Civil Miscellaneous Application No. 46 of 2021) [2021] UGHCCD 54 (31 May 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.