Wakilii

Nsamba v Civil Aviation Authority and Another (Miscellaneous Application 791 of 2023)

High Court · [2023] UGHCLD 396 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under Sections 82 and 98 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules to review and set aside dismissal order of Civil Suit No. 471 of 2019
Decision
Application granted; dismissal order reviewed and set aside; main suit 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 held that dismissing a suit under Order 17 Rule 4 for want of prosecution based on non-appearance of the plaintiff, where the respondent had applied for dismissal under circumstances contemplated by Order 9 Rule 22 (non-appearance), constitutes an error apparent on the face of the record justifying review. The court distinguished dismissal for want of prosecution under Order 17 Rule 5 from dismissal for non-appearance. The court reviewed and set aside the dismissal order, reinstating the suit for hearing on merit inter partes, finding that counsel's failure to execute duties should not prejudice the litigant who had no professional control.

Outcome

Application granted; dismissal order reviewed and set aside; main suit reinstated for hearing on merit

Facts

The applicant filed Civil Suit No. 471 of 2019 against the respondents. The suit was set for hearing on 18 April 2023 after delays in filing defenses and scheduling. On 3 March 2023, the applicant did not appear; the matter was adjourned to 18 April 2023 with hearing notices extracted and served on 13 March 2023. On 18 April 2023, counsel Mpagi Sunday appeared for the applicant but without the file, stating he had just learned about the matter that morning. The applicant himself did not attend, claiming he had lost a relative and attended a burial. The first respondent applied orally for dismissal on grounds that the plaintiff had been served but chose not to appear. The trial judge dismissed the suit for want of prosecution under Order 17 Rule 4, citing non-appearance on three occasions and that counsel Kabega Musa was served in time but informed co-counsel only on the morning of hearing. The applicant then brought this application to review and set aside the dismissal.

Issues

  1. Whether the Application raises grounds for review of the dismissal order in Civil Suit No. 471 of 2019 delivered on 18th April 2023
  2. Whether there are sufficient grounds for setting aside the dismissal of Civil Suit No. 471 of 2019 and reinstating the same for hearing inter parties

Orders

  • The order by the court dismissing High Court Civil Suit No. 471 of 2019 for want of prosecution is hereby reviewed and set aside.
  • High Court Civil Suit No. 471 of 2019, Nsamba Michael v Civil Aviation Authority and Uganda Land Commission is hereby reinstated and the same shall be fixed for hearing and disposal inter-party on its own merit.
  • Each Party is to bear its own costs.

Rules and key headnotes

Civil Procedure — Review of Judgments — Grounds for Review — Error Apparent on Face of Record
A mistake or error apparent on the face of the record refers to an evident error which does not require extraneous matter to show its incorrectness; it is an error so manifest and clear that no court would permit such an error to remain on record, and must be such as can be seen by one who runs and reads.
Civil Procedure — Dismissal of Suit — Want of Prosecution — Distinction Between Order 17 Rules 4, 5, and Order 9 Rule 22
Dismissal under Order 17 Rule 4 for failure to produce witnesses or perform a particular act requires a previous express direction by the court; dismissal for want of prosecution is governed by Order 17 Rule 5 (failure to set down suit within specified time); dismissal for non-appearance of the plaintiff is governed by Order 9 Rule 22; the considerations under each rule are distinct and the court must apply the correct rule corresponding to the circumstances and grounds advanced by the applicant.
Civil Procedure — Dismissal — Application of Wrong Rule — Error of Law
Where a respondent applies orally for dismissal of a suit on grounds that the plaintiff did not appear despite being served with a hearing notice, the application invokes Order 9 Rule 22 (non-appearance), not Order 17 Rule 4 or Order 17 Rule 5; dismissing the suit under Order 17 Rule 4 for want of prosecution in such circumstances constitutes an error of law apparent on the face of the record.
Civil Procedure — Review — Scope of Section 82 of the Civil Procedure Act
Section 82 of the Civil Procedure Act bestows wider discretionary powers on the court to review its decisions than Order 46 of the Civil Procedure Rules; under Section 82 the applicant is not required to prove an error apparent on the face of the record but only that there is just cause to set aside the judgment or order under review.
Civil Procedure — Representation — Appearance by Advocate — Non-Appearance of Party
Where a party is duly represented in court by an authorized advocate under Order 3 Rules 1 & 2 of the Civil Procedure Rules, the party is deemed to have appeared; dismissing a suit for non-appearance of the party when the party's advocate is present in court constitutes sufficient ground to set aside the dismissal and reinstate the suit.
Civil Procedure — Counsel's Mistake — Attribution to Litigant
A mistake of counsel in failing to execute his duties after being duly instructed should not be visited upon the litigant who does not have professional control over the conduct of counsel; such mistake is a sufficient ground to reinstate a suit that was dismissed.
Civil Procedure — Administration of Justice — Determination on Merit
The administration of justice requires that suits be duly investigated and determined on merit inter partes; courts should not shut their doors to litigants as this breeds social unrest and abrogates the core purpose of courts of judicature, which includes administration of substantive justice to all manner of people.

Legislation cited (10)

Cases cited (6)

  • Comtel Integrators Africa Ltd v National Social Security Fund (High Court Miscellaneous Application No. 772 of 2022)
  • Mushabe Appollo v Mutumba Ismail (High Court Miscellaneous Application No. 8 of 2020)
  • Kinyara Sugar Limited v Hajji Kazimbiraine Muhamad and 4 Others (High Court Miscellaneous Application No. 003 of 2020)
  • Farm Inputs Care Centre Limited v Klein Karoo Seeds Marketing Ltd (Miscellaneous Application No. 0861 of 2021)
  • Bishop Jacinto Kibuuka v Catholic Lawyers Society & 2 Others (High Court Miscellaneous Application No. 696 of 2018)
  • Emmanuel Lukwaju v Myers Muchunguzi & 2 Others (High Court Miscellaneous Application No. 862 of 2011)

Full judgment

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

Nsamba_v_Civil_Aviation_Authority_and_Another_(Miscellaneous_Application_791_of_2023)_[2023]_UGHCLD_396_(10_November_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.