Wakilii

Mulira v Namakula (Miscellaneous Application 683 of 2023)

High Court · [2023] UGCOMMC 264 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order of a prior miscellaneous application
Decision
Miscellaneous Application No. 1680 of 2022 reinstated for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit is not defective where facts deponed are within the deponent's personal knowledge as a litigant present at the courthouse. A lawyer's mistake in recording the wrong hearing time in his diary, resulting in late attendance and dismissal for non-appearance, constitutes sufficient cause under Order 9 Rule 23 CPR to set aside the dismissal. Mistakes of counsel should not be visited on a litigant who has demonstrated diligence. The application was allowed, the dismissal order set aside, and the underlying application reinstated for hearing on merits.

Outcome

Miscellaneous Application No. 1680 of 2022 reinstated for hearing on merits

Facts

The Applicant was sued in Civil Suit No. 737 of 2022 and a default judgment was entered against him. He filed Miscellaneous Application No. 1680 of 2023 to set aside the default judgment. On the scheduled hearing date, neither the Applicant nor his counsel appeared and the Application was dismissed for non-appearance. The Applicant then filed the present Application seeking to set aside the dismissal order and reinstate the underlying Application. He deponed that his counsel mistakenly recorded 10 am as the hearing time in his diary instead of 9 am, arrived late, and found the matter dismissed. The Applicant was present at the courthouse on the day in question.

Issues

  1. Whether the Affidavit in support of the Application is fatally defective for failure to disclose the source of information.
  2. Whether there is sufficient cause to warrant the setting aside of the dismissal order in Miscellaneous Application No. 1680 of 2022.

Orders

  • Preliminary objection overruled.
  • Application allowed.
  • Order dismissing Miscellaneous Application No. 1680 of 2022 set aside.
  • Miscellaneous Application No. 1680 of 2022 reinstated for hearing on its merits.
  • Costs of this Application to abide the cause.

Rules and key headnotes

Civil Procedure — Affidavit Evidence — Disclosure of Source of Information — Personal Knowledge of Deponent
An affidavit deponed by a litigant stating facts within his personal knowledge as a party present at the courthouse does not require disclosure of the source of information. The requirement to disclose the source of information under Order 19 Rule 3 CPR applies only to facts deponed based on information received from others, not to facts the deponent personally witnessed or experienced.
Civil Procedure — Dismissal for Non-Appearance — Setting Aside Dismissal — Sufficient Cause — Mistake of Counsel
Under Order 9 Rule 23 CPR, a court may set aside a dismissal for non-appearance where the applicant demonstrates sufficient cause. A lawyer's mistake in recording the wrong hearing time in his diary, resulting in late attendance and non-appearance when the matter was called, constitutes sufficient cause. Mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant where the litigant has demonstrated diligence and interest in prosecuting the matter.
Civil Procedure — Fair Hearing — Right Not to be Defeated by Counsel's Mistake — Constitutional Dimension
A litigant's right to a fair hearing in determination of civil rights and obligations under Article 28 of the Constitution should not be defeated on grounds of his lawyer's mistake. The administration of justice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights.

Legislation cited (5)

Cases cited (17)

  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Criminal Appeal No. 8 of 1998)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Miscellaneous Application No. 10 of 2021)
  • Lakony v Gulu District Service Commission (High Court Civil Appeal No. 110 of 2018)
  • Allen Isingoma v Alex Muhaire & 2 Others (Criminal Case No. 39 of 1992)
  • Premchard Raichard v Quarry Services Ltd (1969) EA 514 at 517
  • Standard- Goods Corporation Ltd vs. Harakhchard Nahus & Co. (1950) 17 EACA 9
  • KCB Bank Uganda Limited v Kalema Deus (High Court Miscellaneous Application No. 704 of 2018)
  • The Registered Trustees of the Archdiocese of Dar es salaam v The Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] KLR
  • Parimal v Veena
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society & 2 Others (Miscellaneous Application No. 696 of 2018)
  • Attorney General v AKPM Lutaaya (Supreme Court Civil Appeal No. 12 of 2007)
  • Godfrey Magezi & Another v Sudhir Ruparelia (Supreme Court Civil Appeal No. 10 of 2002)
  • Kirya v Migereko & Another (Court of Appeal Civil Appeal No. 39 of 2012)
  • Mwesigye Nicholas v P&A Credit Investments Ltd
  • Edirisa Kanonya & Another v Asuman Nsubuga & Others (High Court Miscellaneous Application No. 373 of 2022)
  • Florence Nabatanzi v Naome Binsobodde (Supreme Court Civil Appeal No. 6 of 1987)
  • Captain Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2014)

Full judgment

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

Mulira v Namakula (Miscellaneous Application 683 of 2023) [2023] UGCommC 264 (16 September 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.