Wakilii

East African Packaging Solutions Limited v Fresh Cuts Uganda Limited (Miscellaneous Application 140 of 2023)

High Court · [2024] UGHC 921 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order arising from Civil Suit No. 83 of 2021
Decision
Application to set aside dismissal refused; Civil Suit No. 83 of 2021 remains dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application to set aside dismissal of a civil suit. Held that while the applicant's counsel had locus standi to swear the supporting affidavit, the applicant failed to demonstrate sufficient cause for non-appearance. No medical evidence was adduced to prove counsel's alleged illness, no affidavit was filed by the briefed advocate to confirm instructions, and the applicant company representative did not attend court. The applicant showed laxity in prosecuting its case.

Outcome

Application to set aside dismissal refused; Civil Suit No. 83 of 2021 remains dismissed

Facts

The applicant filed Civil Suit No. 83 of 2021 seeking recovery of UGX 60,020,664 for unpaid packaging materials delivered to the respondent. On 4 September 2023, when the suit came up for mention, neither the applicant company representative nor its counsel attended. The applicant's counsel alleged he was ill with flu and had instructed Counsel Musubo Ayub to hold brief, but counsel did not appear because he had another matter before the Assistant Registrar at the same time. The suit was dismissed for non-appearance. The applicant brought this application to set aside the dismissal order. The respondent opposed, arguing that no medical evidence was provided to prove counsel's illness, no evidence demonstrated that Counsel Ayub was instructed or that he had a conflicting court engagement, and the applicant company showed no interest in prosecuting the suit by failing to send a representative.

Issues

  1. Whether Mr. Rwabugaire Dan had locus standi to swear affidavit in support of this application.
  2. Whether there is sufficient cause shown by the Applicant to warrant setting aside the orders of dismissal of Civil Suit No. 83 of 2021.

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Affidavits — Advocate's Locus Standi to Swear Affidavit
An advocate is not prohibited from swearing an affidavit to support a party's case where the facts deponed are well within the advocate's knowledge, particularly where the advocate represents the party and is familiar with the case.
Dismissal for Non-Appearance — Mandatory Nature of Order 9 Rule 22
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court is mandatorily required to dismiss the suit under Order 9 rule 22 of the Civil Procedure Rules unless the defendant admits the claim.
Setting Aside Dismissal Order — Sufficient Cause Test
To set aside a dismissal order under Order 9 rule 23 of the Civil Procedure Rules, the plaintiff must satisfy the court that there was sufficient cause for non-appearance. Sufficient cause relates to the inability of the applicant or the applicant's lawyers to appear for the hearing as duly notified, and the words should receive a liberal construction to advance substantial justice where no negligence, inaction, or want of bona fides is imputed to the applicant.
Counsel's Mistake — Burden of Proof and Requirement for Evidence
While mistakes or negligence of counsel may constitute sufficient cause for non-appearance and should not be visited on the litigant, the court must be satisfied that the allegation of counsel's inadvertence is true and genuine. The applicant must adduce evidence to prove the alleged circumstances preventing appearance, and bald assertions without supporting documentary or affidavit evidence are insufficient.
Litigant's Duty to Prosecute — Personal Responsibility Despite Engaging Counsel
A litigant who engages legal services of an advocate must always bear in mind that the case does not become the advocate's case. Litigants are obliged to pursue their cases and appear in court. Where a litigant's representative fails to attend court when the litigant's advocate is indisposed, the litigant has failed to show vigilance in prosecuting the case.

Legislation cited (7)

Cases cited (8)

  • Edirisa Kanonya and another v Asuman Nsubuga & Others (Miscellaneous Application No. 373 of 2022)
  • Shabin Din v Ram Parkash Anand (1955) 22 EACA 48
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Bishop Jacinto v The Uganda Catholic Lawyers Society & 2 Others (High Court Miscellaneous Application No. 696 of 2018)
  • Busingye & Anor v Gianluigi & Anor (High Court Miscellaneous Application No. 203 of 2013)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Supreme Court Miscellaneous Application No. 10 of 2021)
  • Gideon Mosa Onchwati v. Kenya Oil Co. Ltd & Anor [2017] KLR 650
  • Florence Nabatanzi v Naome Binsobedde (Supreme Court Civil Application No. 6 of 1987)

Full judgment

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

East African Packaging Solutions Limited v Fresh Cuts Uganda Limited (Miscellaneous Application 140 of 2023) [2024] UGHC 921 (30 September 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.