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Kagadi Seventh Day Adventist Church Association of Uganda v Kasumba (Miscellaneous Application No. 56 of 2019)

High Court · [2020] UGHC 51 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside exparte order in civil suit arising from High Court Civil Suit No. 9 of 2011
Decision
Exparte order set aside conditionally; matter to proceed with both parties heard, subject to payment of costs

Observed later treatment

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Holding

The High Court set aside an exparte order despite finding negligence on the part of both the applicant's counsel and the applicant. Counsel negligently attended the Chief Magistrate's Court instead of the High Court. The applicant also delayed nine months before applying to set aside the order. The court exercised its inherent jurisdiction under section 98 of the Civil Procedure Act, noting the matter concerned land and the constitutional right to property under Article 26, which requires a hearing before deprivation. Costs of the application and recalling witnesses were imposed on the applicant.

Outcome

Exparte order set aside conditionally; matter to proceed with both parties heard, subject to payment of costs

Facts

The applicant failed to appear when HCCS No. 9 of 2011 was called for hearing on 5 February 2019. The applicant's counsel claimed he was attending proceedings at the Chief Magistrate's Court in Mbarara in MA 293 of 2018. The applicant's representatives, who were travelling to court, suffered a motor vehicle accident and arrived after the judge had directed the respondent to proceed exparte. The respondent disputed that counsel attended the Mbarara court and contended the applicant's record showed counsel's absence. The applicant applied nine months later to set aside the exparte order. The respondent opposed the application on grounds that counsel lied about his whereabouts and that the application was brought after undue delay.

Issues

  1. Whether the applicant showed sufficient cause for non-appearance to warrant setting aside the exparte order dated 5 February 2019.
  2. Whether the court should exercise its inherent powers under section 98 of the Civil Procedure Act to set aside the exparte order despite negligence by the applicant and its counsel.

Orders

  • The exparte order in Civil Suit No. 9 of 2011 entered against the applicant on 5 February 2019 is set aside.
  • The applicant shall pay the taxed costs of this application and the costs of recalling the respondent's witnesses for cross-examination by 30 June 2020.
  • If the applicant fails to pay the taxed costs by 30 June 2020, the exparte order of 5 February 2019 will be confirmed.

Rules and key headnotes

Civil Procedure — Setting Aside Exparte Orders — Sufficient Cause — Order 9 Rule 21
Under Order 9 rule 21 of the Civil Procedure Rules, a defendant who has failed to appear may be heard if he assigns good cause for his non-appearance. Counsel's decision to attend a lower court in preference to the High Court, contrary to the rules of precedence, constitutes negligence and does not amount to sufficient cause.
Civil Procedure — Inherent Powers of Court — Section 98 of the Civil Procedure Act — Discretion to Prevent Injustice
Section 98 of the Civil Procedure Act confers inherent jurisdiction on the court to make orders necessary for the ends of justice or to prevent abuse of process. Where a matter concerns land and the constitutional right to property under Article 26, the court may sparingly exercise this power to set aside an exparte order despite negligence by the applicant and counsel, provided the respondent is compensated by an order for costs.
Land & Property — Right to Property — Constitutional Protection — Article 26 — Right to be Heard
In land matters affecting the constitutional right to property protected under Article 26, the right to property can only be taken away after a party has been heard. Courts should decide serious land cases on their merits by affording all parties an opportunity to be heard.

Legislation cited (5)

Full judgment

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Kagadi Seventh Day Adventist Church Association of Uganda v Kasumba (Miscellaneous Application No. 56 of 2019) [2020] UGHC 51 (28 April 2020)
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.