Wakilii

Luswata & Another v Asiimwe (Civil Appeal 32 of 2021)

High Court · [2023] UGCOMMC 291 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of application to set aside default judgment and reinstate application for leave to appear and defend
Decision
Default judgment and dismissal order set aside; matters reinstated for hearing on merit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside both the default judgment in the underlying suit and the dismissal order. The court held that the appellants had raised triable issues (including allegations of forgery) that warranted being heard on merit. Although the appellants were negligent in not following up on hearing dates, the principle that matters should be decided on their merits constituted sufficient cause to set aside the dismissal and reinstate the application for leave to appear and defend.

Outcome

Default judgment and dismissal order set aside; matters reinstated for hearing on merit

Facts

The respondent filed Civil Suit No. 19 of 2019 against the appellants seeking recovery of UGX 36,000,000 allegedly given for purchase of 30 heads of cattle. The appellants filed Miscellaneous Application No. 43 of 2019 seeking leave to appear and defend, which was dismissed on 11 July 2019 for non-appearance. They filed Miscellaneous Application No. 144 of 2019 seeking reinstatement, which was struck out for a defective affidavit. The appellants engaged new lawyers who filed Miscellaneous Application No. 21 of 2021 seeking to set aside the dismissal order and reinstate the earlier application. The Chief Magistrate dismissed the application, finding the appellants had not acted diligently. The appellants appealed, arguing they had raised triable issues including allegations of forgery and had been let down by their former lawyers.

Issues

  1. Whether the trial magistrate erred in overruling the preliminary objection that the respondent's affidavit in reply was improperly before court
  2. Whether Miscellaneous Application No. 21 of 2021 was unchallenged
  3. Whether the appellants failed to prove they should be heard interparty and on merit
  4. Whether the trial magistrate properly evaluated the evidence and pleadings
  5. Whether the trial magistrate erred in dismissing the application without evaluating the circumstances that caused the delays

Orders

  • Appeal allowed.
  • The default judgment entered in Civil Suit No. 19 of 2019 is hereby set aside and the matter be reinstated.
  • The order dismissing Miscellaneous Application No. 43 of 2019 arising from Civil Suit No. 19 of 2019 is hereby set aside and the same be reinstated.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Affidavits in Reply — Time Limits for Filing
An affidavit in reply, being evidence rather than a pleading in the strict sense, should be filed and served within a reasonable time before the hearing date sufficient to allow the adverse party a fair opportunity to respond, and is not subject to the rigid time constraints applicable to defences under Order 5 of the Civil Procedure Rules.
Civil Procedure — Order 12 Rule 3 — Scope of Application
Order 12 Rule 3 of the Civil Procedure Rules applies only to interlocutory applications filed after completion of alternative dispute resolution or after a scheduling conference, and does not govern all interlocutory applications. Applications that do not arise in these circumstances are governed by other provisions.
Civil Procedure — Setting Aside Default Judgment — Triable Issues
Where a defendant raises serious triable issues such as forgery in an application to set aside a default judgment under Order 36 Rule 11, the court must not shut out the defendant even if the defence appears weak at the interlocutory stage, as the existence of a triable issue constitutes just cause for setting aside the default judgment.
Civil Procedure — Mistake of Counsel — Effect on Litigant
A mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant where such mistake amounts to an error of judgment, but a litigant cannot rely on counsel's failure to inform them of a hearing date as this does not amount to an error of judgment and the litigant bears responsibility to personally follow up on their matter.
Civil Procedure — Setting Aside Dismissal Orders — Sufficient Cause
The requirement that cases be decided on their merits, as mandated by Section 98 of the Civil Procedure Act and the constitutional right to a fair hearing, can constitute sufficient cause for setting aside a dismissal order under Order 9 Rule 23, even where there has been some delay or inaction on the part of the applicant.
Civil Procedure — Triable Issues — Definition and Application
To establish a triable issue warranting leave to appear and defend, a defendant is not bound to show a good defence on the merits but must satisfy the court that there is an issue or question in dispute which ought to be tried. The court shall not enter upon the trial of the issues at the interlocutory stage.

Legislation cited (10)

Cases cited (12)

  • Kifumunre Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Fredrick Zaabwe v Orient Bank (SCCA No. 4 of 2006)
  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (HCMA No. 333 of 2017)
  • Lam-Logoro v Muni University (Miscellaneous Civil Cause No. 2 of 2016)
  • Nakiridde v Hotel International Ltd UGSC 55
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Geoffrey Gatete & Another v William Kyobe (SCCA No. 07 of 2015)
  • Makula International Trade Agency v Bank of Uganda [1985] HCB 65
  • Miter Investments Ltd v East African Portland Cement Co. Ltd (M.A No. 0336 of 2012)
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & 2 Others (Miscellaneous Application No. 696 of 2018)
  • Kiirya Grace Nanzala v Daudi Migereko & Another (Court of Appeal Election Reference Appeal No. 39 of 2012)
  • Essali and Ors v Solanki (1965) E.A 215

Full judgment

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Luswata & Another v Asiimwe (Civil Appeal 32 of 2021) [2023] UGCommC 291 (25 May 2023)
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.