Wakilii

Monaco Cosmetics Ltd & 2 Ors v Old Stanley Hotel Ltd (Miscellaneous Application No. 593 of 2016)

High Court · [2016] UGCOMMC 97 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of Miscellaneous Application No. 90 of 2016 for leave to appear and defend Civil Suit No. 45 of 2016
Decision
Dismissal order and default decree set aside; underlying application for leave to appear and defend reinstated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the Applicants' Counsel falling sick with malaria and flu on the day before the hearing constituted sufficient cause for nonappearance under Order 9 rule 23 of the Civil Procedure Rules. A medical report advising two days' bed rest from 17 May 2016 supported the application. The dismissal of the application for leave to appear and defend was set aside, and the default decree entered against the Applicants was also set aside.

Outcome

Dismissal order and default decree set aside; underlying application for leave to appear and defend reinstated

Facts

The Applicants filed Miscellaneous Application No. 90 of 2016 seeking unconditional leave to appear and defend Civil Suit No. 45 of 2016 brought by the Respondent. The application was fixed for hearing on 18 May 2016. On 17 May 2016, the Applicants' Counsel fell ill with malaria and flu and was medically advised to take two days' bed rest. He did not attend the hearing on 18 May 2016 and did not inform the Applicants or send another lawyer from his firm. The court dismissed the application under Order 9 rule 22 of the Civil Procedure Rules for non-attendance. Subsequently, a default decree for US$129,213 with interest and costs was entered against the Applicants on 20 May 2016. The Applicants filed this application on 15 July 2016 seeking to set aside the dismissal order.

Issues

  1. Whether there was sufficient cause for the nonappearance of the Applicants' Counsel when Miscellaneous Application No. 90 of 2016 was called for hearing on 18 May 2016.

Orders

  • The dismissal of High Court Miscellaneous Application No. 90 of 2016 (arising from Civil Suit No. 45 of 2016), dismissed on 18 May 2016, is set aside under Order 9 rule 23(1) of the Civil Procedure Rules.
  • Upon reinstatement of High Court Miscellaneous Application No. 90 of 2016, the default decree entered by the registrar against the Applicants for payment of US$129,213 with interest and costs on 20 May 2016 is set aside.
  • Costs of the application shall abide the outcome of High Court Miscellaneous Application No. 90 of 2016.

Rules and key headnotes

Civil Procedure — Dismissal for Non-Appearance — Sufficient Cause — Sickness of Counsel
Illness of counsel, evidenced by a medical report advising bed rest, constitutes sufficient cause for nonappearance under Order 9 rule 23 of the Civil Procedure Rules, even where counsel failed to notify colleagues or clients.
Civil Procedure — Order 9 Rule 22 — Application to Miscellaneous Applications
Order 9 rule 22 of the Civil Procedure Rules, which mandates dismissal of a suit where the plaintiff does not appear, applies to miscellaneous applications, including applications for unconditional leave to defend, since a miscellaneous application is a 'suit' as defined in section 2 of the Civil Procedure Act.
Civil Procedure — Sufficient Cause — Failure to Brief Colleague
Where counsel is genuinely indisposed, the omission to notify colleagues to hold brief ought not to be visited on the client, particularly where the client's presence was not required and the client had not been informed of the hearing date.

Legislation cited (6)

Cases cited (3)

  • Crown Beverages Limited v Stanbic Bank Uganda Limited (Miscellaneous Application No. 181 of 2005)
  • Video World Entertainment Centre Limited v Jean Nammi & Another (Miscellaneous Application No. 517 of 2014)
  • Shabir Din v Ram Pakesh Anand (1955) 22 EACA 48

Full judgment

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

Monaco Cosmetics Ltd & 2 Ors v Old Stanley Hotel Ltd (Miscellaneous Application No. 593 of 2016) [2016] UGCommC 97 (10 October 2016)
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.