Okwir v Olwa Ekwaro (Civil Appeal No. 191 of 2013)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that where a plaintiff's suit is dismissed under Order 9 rule 22 for non-appearance, the negligence or default of a litigant's advocate—here, failing to attend after being duly served and failing to inform the client—may constitute sufficient cause to set aside the dismissal under Order 9 rule 23. Applying Article 126(2)(e) of the Constitution, the Court held that substantive justice required the innocent litigant not be permanently shut out over a land dispute concerning his family home due to his lawyers' fault, where the application to set aside was made promptly and the respondent suffered no prejudice. The appeal was allowed and the suit reinstated for hearing before another judge.

Outcome

Appeal allowed; dismissal of Civil Suit No. 563 of 2007 set aside and suit reinstated for hearing before another judge

Facts

The appellant filed High Court Civil Suit No. 563 of 2007 seeking nullification of the respondent's registered proprietorship over property in Lira where the appellant resided with his family, alleging fraud. The suit was fixed for hearing on 22 February 2012 in the Land Division at Kampala, and the appellant's counsel, Mr. Peter Kusiima, was served with the hearing notice on 16 February 2012 and acknowledged service. Neither the appellant nor his counsel appeared, and the suit was dismissed with costs under Order 9 rule 22. The appellant deposed that his advocate had earlier told him the case was due to be transferred to the High Court at Lira where the property was situated, and that he was unaware of the hearing date. He applied to set aside the dismissal, but the trial judge found the advocate had been served, the alleged error of counsel was neither pleaded nor deposed, and there was no sufficient cause. The appellant appealed.

Issues

1. Whether the trial judge erred in referring to setting aside an ex parte judgment when the application concerned setting aside the dismissal of a suit under Order 9 rule 23.
2. Whether the appellant showed sufficient cause for the non-appearance of himself or his counsel when the suit was called for hearing.
3. Whether the trial judge properly evaluated the evidence in finding no sufficient cause to set aside the dismissal.

Orders

• The appeal has merit and is hereby allowed.
• The judgment of the High Court in Civil Suit No. 563 of 2007 is hereby set aside and substituted with this judgment reinstating the suit.
• The High Court Registrar is hereby directed to fix the suit for hearing before another judge.
• The Respondent shall pay the costs of this appeal.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Rules Order 9 rule 22
• Civil Procedure Rules Order 9 rule 23
• Constitution of the Republic of Uganda Article 126(2)(e)
• Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (5)

• Nabatanzi v Binsobedde (1991) ULSLR 97
• Nicholas Roussos v Gullam Hussein (Supreme Court Civil Appeal No. 9 of 1993)
• Pandya versus Republic [1957] 1 EA 336
• Peters v Sunday Post Limited [1958] 1 EA 424
• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Okwir v Ekwaro ( Executor of the will of the Olwa Ekwaro ) (HCCS 563 of 2007)

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