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Mpower Oil Company Limited v Norvik Hospital Ltd and Another (Civil Suit No. 1219 of 2023; Miscellaneous Application No. 934 of 2025)

High Court · [2025] UGCOMMC 323 · 2025 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside an ex parte order arising from Civil Suit No. 1219 of 2023
Decision
Ex parte order set aside; matter to proceed inter-parties subject to provision of security

Observed later treatment

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Holding

The court set aside the ex parte order and allowed the matter to proceed inter-parties, finding that while the applicant failed to establish mistake of counsel, the interests of justice favoured resolution on the merits. The court ordered the applicant to provide security of UGX 40,000,000 within 30 days as a condition for diligent prosecution of the suit, with costs awarded to the respondents.

Outcome

Ex parte order set aside; matter to proceed inter-parties subject to provision of security

Facts

The Applicant was the 1st Defendant in Civil Suit No. 1219 of 2023 and had filed a defence. The Applicant repeatedly changed legal representation and failed to file pre-trial documents despite court directions. On 7 April 2025, the matter was scheduled for hearing but the Applicant did not appear despite service. The court adjourned to 14 April 2025 and service was effected on 9 April 2025. On 14 April 2025, the Applicant engaged new lawyers who did not file a notice of change of advocates or provide input on the draft Joint Scheduling Memorandum. Given the consistent dilatory conduct, the court ordered the suit to proceed ex parte against the Defendants under Order 17 Rule 4. The Applicant then brought this application to set aside the ex parte order, contending that its former advocates' negligence should not be visited upon it.

Issues

  1. Whether the affidavit in reply was competent despite the deponent not disclosing his capacity or relationship to the respondent.
  2. Whether the affidavit in reply filed out of time without leave should be struck out.
  3. Whether the court had jurisdiction to set aside an order to proceed ex parte under Order 17 Rule 4 of the Civil Procedure Rules.
  4. Whether the applicant's failure to comply with pre-trial directions was due to mistake of counsel that should not be visited upon the client.
  5. Whether the interests of justice required setting aside the ex parte order to allow the matter to be heard on its merits.

Orders

  • The order to proceed ex parte against the Applicant/1st Defendant issued on 14 April 2025 is set aside.
  • Civil Suit No. 1219 of 2023 shall be heard and determined inter-parties.
  • The Applicant is ordered to provide security of UGX 40,000,000 within thirty (30) days from the date of this ruling.
  • In the event that the Applicant's defence is dismissed for failure to prosecute after the date of this ruling, the security sum shall be forfeited to meet any liability due to the Respondents.
  • The Applicant shall file the Joint Scheduling Memorandum and Trial bundle within 7 days of the date of this ruling.
  • The main suit is rescheduled for mention/scheduling on November 6, 2025 at 10:30am.
  • The Registrar is directed to notify the trial court on the adherence by the Applicant of the security order.
  • The Applicant shall bear the costs of this application.

Rules and key headnotes

Affidavit Evidence — Competence of Deponent — Knowledge Requirement
What is required in affidavits is the knowledge or belief of the deponent rather than authorisation by a party to the litigation. Competency to swear an affidavit is pegged to the ability to depose to the facts of the case, which is circumscribed by the deponent's ability to swear positively to the facts on account of personal knowledge or disclosure of the source where permitted.
Affidavit in Reply — Late Filing — Court's Discretion
The framers of the Civil Procedure Rules intended courts to deal with affidavits in reply with a degree of flexibility since they are evidence. Unlike a written statement of defence which serves only to disclose the case a defendant proposes to put forward, an affidavit becomes evidence in the case. Time constraints applied to defences may be misplaced when applied to affidavits, and the court may exercise discretion to validate a belatedly filed affidavit in reply where no prejudice is shown.
Order 17 Rule 4 — Ex Parte Proceedings — Distinction from Decree
An order to proceed ex parte under Order 17 Rule 4 is not a decree and is therefore capable of being set aside. The phrase 'proceed to decide the suit immediately' under Order 17 Rule 4 does not necessarily mean that the court must determine the matter at once; the court may, in the exercise of its discretion, direct that proceedings continue ex parte to take evidence while judgment is reserved for a later stage.
Mistake of Counsel — Limitations on Principle — Inordinate Delay
The legal proposition that a mistake or error of an advocate should not be visited on the client is not absolute and depends on the circumstances of a given case. Inordinate delay and negligence to observe or ascertain plain requirements of the law are not mistakes of an advocate from which a client can be excused. Where an applicant claims mistake of counsel whom they have since disengaged, they should either join such advocate or show what action they have taken against the advocate as evidence of the genuineness of their case.
Inherent Powers — Interests of Justice — Right to be Heard
Where a party does not make out grounds warranting the invocation of the court's inherent powers, the court may nonetheless invoke them where the interests of justice so require. Procedural or technical considerations will not be allowed to deter the hearing of a matter on its merits, especially where the right to be heard is at stake and no prejudice has been occasioned to the other side.
Security for Diligent Prosecution — Court's Power to Order
In the administration of justice, the court may take proactive measures to ensure that justice prevails and no party is subjected to undue prejudice by delay or lack of diligent prosecution. Where circumstances demonstrate a pattern of dilatory conduct, the court may require an applicant to provide security as a safeguard against the risk of non-compliance or further delays, thereby establishing a tangible commitment to diligent prosecution and ensuring efficient administration of justice.

Legislation cited (16)

Cases cited (42)

  • Mukisa Biscuit Manufacturing Co v West End Distributors [1969] EA 696
  • N. A. S. Airport Services v Attorney General [1959] EA 53
  • Okello Peter & Ors v Abacus Parenteral Drugs Ltd (Miscellaneous Application No. 35 of 2022)
  • Wanumi Godfrey & Anor v Nzirejje Ronald Mutebi & Ors (Civil Suit No. 574 of 2020)
  • Poly Fibre (U) Ltd v Matovu Paul & 3 Ors (Civil Suit No. 412 of 2010)
  • MHK Engineering Services (U) Ltd v Macdowell Ltd (Miscellaneous Application No. 825 of 2018)
  • Black Market Records v Malinga Sulaiman and 3 Others (Miscellaneous Application No. 2788 of 2023)
  • Musoke Mike v Kalumba James (Revision Cause No. 9 of 2019)
  • Bankone v Simbamanyo Estates Limited (Miscellaneous Application No. 540 of 2020)
  • Allan Makula v First Finance Bank Limited (Miscellaneous Application No. 1407 of 2022)
  • ATC Uganda Limited v Smile Communications Limited (Miscellaneous Application No. 621 of 2023)
  • LK Enterprises Limited v ABSA Bank Ltd (Miscellaneous Application No. 04 of 2024)
  • Arim Felix Clive v Stanbic Bank (U) Limited (Civil Appeal No. 03 of 2015)
  • Obote David v Odora Yasoni (Civil Appeal No. 014 of 2023)
  • Zakaria Onno v Olando Difasi and 5 Others (Civil Appeal No. 0025 of 2013)
  • Lam Lagoro v Muni University (Miscellaneous Cause No. 7 of 2016)
  • Saggu v Roadmaster Cycles (U) Ltd (2002) 1 EA 258
  • AK Transporters Limited v Mulani Mossa (Miscellaneous Application No. 1175 of 2023)
  • Rohi Investment Limited v Fenghua Limited (Miscellaneous Application No. 2270 of 2023)
  • Tabaro Nelensio v Omukwenda Kaija Bwango (Civil Suit No. 46 of 2018)
  • Vantange Mezzanine Fund II Partnership & Anor v Commissioner Land Registration (Miscellaneous Application No. 2484 of 2023)
  • Kagumaho Musana v Rama and 3 Others (Miscellaneous Application No. 933 of 2019)
  • Tullow Uganda Limited & Anor v Jackson Wabyona & Ors (Miscellaneous Application No. 443 of 2017)
  • Green Meadow Limited v Patrice Namisono (Miscellaneous Application No. 1368 of 2022)
  • Roltex International Forex Bureau v Habba Group (U) Ltd & 3 Ors (Miscellaneous Application No. 964 of 2022)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Kateyo Eliezer v Makerere University (Miscellaneous Application No. 147 of 2021)
  • Bishop Jacinto Kibuuka v Uganda Catholic Lawyers Fraternity & Ors 696/2018
  • Eriga Jos v Vuzzi Azza & Ors (Miscellaneous Application No. 9 of 2017)
  • Nicholas Roussous v Gulamhussein Habib Virani & Anor (Supreme Court Civil Appeal No. 9 of 1993)
  • Akuwati Kalyesubula v Bank of Africa (Miscellaneous Application No. 922 of 2022)
  • Colleb Katorogo & Anor v GROFIN SGB & Ors (Miscellaneous Application No. 534 of 2021)
  • Valentine Omollo Ongeso v Kennedy Odenge (2021) eKLR
  • Fred Byamukama & Ors v Micheal Katungye (Miscellaneous Application No. 773 of 2022)
  • Joseph Muyinza Bunoli v William Tumusiime (Miscellaneous Application No. 820 of 2023)
  • Byaruhanga Mahmood v Top Finance Bank Limited (Miscellaneous Application No. 250 of 2023)
  • Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A)
  • Marshall Albers & Ors v The Minister of Justice and Correctional Services [2022] ZASCA 25
  • Carolyne Turyatemba & 4 Ors v Attorney General & Anor (Constitutional Petition No. 15 of 2006)
  • Landis v North American Co., 299 U.S. 248 (1936)
  • Geralldine Begumisa v EADB & Ors (Miscellaneous Application No. 436 of 2022)
  • Kisam Investments v Attorney General (Miscellaneous Application No. 742 of 2023)

Full judgment

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Mpower Oil Company Limited v Norvik Hospital Ltd and Another (Civil Suit No. 1219 of 2023; Miscellaneous Application No. 934 of 2025) [2025] UGCommC 323 (10 September 2025)
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.