Wakilii

National Housing and Construction Company Limited v Pade and Others (Miscellaneous Application 59 of 2023)

High Court · [2023] UGHCCD 305 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit dismissed for want of prosecution
Decision
Dismissal order set aside; underlying civil suit reinstated for further proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Civil Suit No. 37 of 2021 was spuriously dismissed because the applicant was never properly served with notice of the mention date on 2 March 2023. The dismissal order was a nullity as the applicant was denied natural justice. The application was allowed, the dismissal order set aside, and the underlying civil suit reinstated.

Outcome

Dismissal order set aside; underlying civil suit reinstated for further proceedings

Facts

National Housing and Construction Co. Ltd brought Civil Suit No. 37 of 2021. On 3 November 2022, the Assistant Registrar directed parties to file a joint scheduling memorandum, witness statements, and trial bundles by 12 January 2023. On that date, the applicant's counsel (Ms. Mutuwa Gloria) fell severely ill and could not appear; a colleague held brief and informed the court she was hospitalized. Only the 1st and 2nd defendants had filed their documents. The Assistant Registrar referred the matter to the judge for management without fixing a new date. The judge fixed the matter for mention on 2 March 2023, but there was no evidence on record that the applicant was served with notice of this date. When the matter came up on 2 March 2023, only the defendants' counsel appeared. They informed the court the plaintiff had not complied with directions and appeared uninterested. The judge dismissed the suit for want of prosecution. The applicant then brought this application to set aside the dismissal.

Issues

  1. Whether the order dismissing Civil Suit No. 37 of 2021 should be set aside and the suit reinstated.
  2. Whether the applicant was prevented by sufficient cause from appearing when the suit was dismissed.
  3. Whether the suit was dismissed for non-appearance or for want of prosecution.
  4. Whether the applicant was properly served with notice of the mention date on 2 March 2023.

Orders

  • Application allowed.
  • The order dismissing Civil Suit No. 37 of 2021 is set aside.
  • Civil Suit No. 37 of 2021 is reinstated.
  • Parties directed to complete all preliminary matters (trial bundles, witness statements, joint scheduling memorandum) before the Learned Deputy Registrar.
  • The reinstated suit to be placed before the judge for mention and directions thereafter.
  • Each party to bear own costs.

Rules and key headnotes

Civil Procedure — Service of Process — Notice of Hearing — Effect of Failure to Serve
Failure to serve a party with notice of a hearing date where service is required goes to the root of proper litigation procedure and renders any order made in the absence of that party a nullity, not a mere irregularity.
Civil Procedure — Natural Justice — Ex Debito Justitiae
A person affected by a court order which is a nullity is entitled ex debito justitiae to have it set aside, as the court has inherent jurisdiction to remedy a failure to observe the principle of equity that a person against whom a charge or claim is made must be given a reasonable opportunity of appearing and presenting their case.
Civil Procedure — Dismissal for Want of Prosecution — Distinction from Dismissal for Non-Appearance
Order 9 rule 23 of the Civil Procedure Rules, which allows a plaintiff to apply to set aside a dismissal order where there was sufficient cause for non-appearance, applies to dismissals under Order 9 rule 22 (dismissal for non-appearance), but not to dismissals for want of prosecution under Order 17 rule 5.

Legislation cited (7)

Cases cited (10)

  • Nyanzi Muhammed v Nassolo Harriet and 2 Others (Miscellaneous Application No. 14 of 2021)
  • Lam-Lagoro v Muni University (Miscellaneous Civil Cause No. 7 of 2016) [2017] UGHCCD 85
  • Springwood Capital Partners Ltd v Twed Consulting Company Ltd (High Court Miscellaneous Application No. 746 of 2014)
  • Edison Kanyabwera v Pastori Tumwebaze (Court of Appeal No. 6 of 2004)
  • Siraj Kimuli v Stanbic Bank (Civil Appeal No. 23 of 2009)
  • Musa Nsimbe v Ssentongo Kirizestom and 11 Others (Miscellaneous Application No. 904 of 2021)
  • Gold Beverages (U) Ltd v Muhangura Kenneth and Another (High Court Miscellaneous Application No. 674 of 2019)
  • Official Receiver Continental Bank of Kenya Ltd v Mukunya [2003] 1 EA 213
  • Graig v Kanseen [1943] 1 All ER 108
  • Khami v Kirobe and Others [1956] EACA (Volume 23) 195

Full judgment

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National Housing and Construction Company Limited v Pade and Others (Miscellaneous Application 59 of 2023) [2023] UGHCCD 305 (6 October 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.