Wakilii

Sanlam General Insurance Limited v Quality Milk Diaries Limited (Miscellaneous Application 257 of 2022)

High Court · [2023] UGCOMMC 256 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of civil suit and default judgment entered on counterclaim
Decision
Main suit reinstated for hearing on merits; default judgment set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court exercised its inherent powers under section 98 of the Civil Procedure Act to reinstate a dismissed civil suit and set aside a default judgment entered on a counterclaim. The dismissal and default judgment both resulted from counsel's failure to comply with court directions and file required documents. Applying the principle that counsel's negligence should not be visited on a vigilant litigant who instructs counsel in time, the court held that the Applicant demonstrated sufficient interest in prosecuting the case and acted promptly upon discovering counsel's omissions. Preliminary objections regarding defective pleadings, lack of instructions, and non-compliance with procedural requirements were all overruled.

Outcome

Main suit reinstated for hearing on merits; default judgment set aside

Facts

The Applicant brought Civil Suit No. 0849 of 2020 against the Respondent. The Registrar gave parties 21 days to file a joint scheduling memorandum, witness statements and trial bundles. The Respondent filed by 31 March 2021, but the Applicant only filed a trial bundle on 28 September 2021, eight months later, and never filed a scheduling memorandum. The suit was dismissed on 8 October 2021 for non-compliance with court directives. The Respondent had filed a counterclaim. The Applicant failed to file a defence to the counterclaim within 15 days as required. Default judgment was entered for the Respondent on 21 December 2021 awarding UGX 13,000,000 plus 36% interest per month. The Applicant filed Misc. Application No. 257 of 2022 on 11 March 2022 seeking reinstatement of the suit and setting aside of the default judgment, blaming counsel's negligence. The Application was initially dismissed for want of prosecution but later reinstated following a review application.

Issues

  1. Whether Civil Suit No. 0849 of 2020 should be reinstated
  2. Whether the Default Judgment and Decree in Civil Suit No. 489 of 2020 should be set aside
  3. Whether the Applicant's Notice of Motion is defective for being filed by counsel without instructions
  4. Whether the Applicant's Notice of Motion lacks grounds and the Affidavit in support is defective
  5. Whether the Application offends Order 6 rule 2 of the CPR requiring a brief summary of evidence

Orders

  • Application allowed.
  • Civil Suit No. 0849 of 2020 reinstated.
  • Default Judgment and Decree set aside.
  • Costs shall abide the cause.

Rules and key headnotes

Inherent Powers of Court — Section 98 Civil Procedure Act — Relationship with Specific Remedies
The existence of a specific procedure, provision or remedy does not restrict or exclude the court's inherent jurisdiction under section 98 of the Civil Procedure Act, which gives wide residual powers to the court to prevent or correct any injustice. The court will not normally exercise inherent powers where a specific remedy is available, but the matter is not one of jurisdiction. The High Court is a court of unlimited jurisdiction except so far as limited by statute, and the fact that a specific procedure is provided by rule cannot operate to restrict the court's jurisdiction.
Pleadings — Notice of Motion — Requirement for Summary of Evidence
Order 48 rule 3 of the Civil Procedure Rules is a specific provision requiring Notice of Motion to state grounds in general terms and be accompanied by affidavit evidence. This specific provision takes precedence over the general provision in Order 6 rule 1 requiring every pleading to be accompanied by a brief summary of evidence. An application by Notice of Motion supported by affidavit is an exception to the general requirements in Order 6 rule 1(b) CPR, as the evidence to be relied upon is already availed to the opposite party in the affidavit.
Dismissal for Non-Compliance — Setting Aside — Negligence of Counsel
A dismissal for failure to comply with court directions can be set aside if sufficient cause is shown. A mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. Such mistake constitutes just cause entitling the trial judge to use discretion so that the matter is considered on its merits. Where an applicant instructs a lawyer in time, his rights should not be blocked on grounds of the lawyer's negligence or omission to comply with requirements of the law. A vigilant applicant should not be penalized for the fault of counsel on whose actions he has no control.
Counterclaim — Independence from Main Suit
A counterclaim is an independent suit that still stands even when the main suit is dismissed, stayed or discontinued. Under Order 8 rule 13 of the Civil Procedure Rules, if in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.
Default Judgment — Setting Aside — Counsel's Negligence and Litigant's Proactiveness
Before an applicant can be excused from the mistakes of counsel, he must show that he was not in any way negligent and that he took proactive steps in correcting the errors of counsel when he first became aware of the default. Proactiveness includes taking urgent steps to file an application to set aside the default judgment. Where an applicant demonstrates diligence by attending hearings and filing promptly upon discovering counsel's omission, and has wholly relied on the advocate's expertise, the negligence of counsel constitutes just cause for setting aside a default judgment under Order 9 rule 12 CPR.

Legislation cited (14)

Cases cited (16)

  • Ssenyimba Vincent & 2 others v Birikade Peter & Anor (Miscellaneous Application No. 378 of 2018)
  • Nelson Sande Ndugo v Electoral Commission (High Court Civil Suit No. 4 of 2006)
  • Mbarara Municipal Council v Jetha Brothers (Supreme Court Miscellaneous Application No. 10 of 2021)
  • Samwiri Kibuuka v Eriya Lugeya Lubanga (High Court Miscellaneous Application No. 656 of 2005)
  • Richard Mwirivumbi v Jada Limited (High Court Civil Suit No. 979 of 1996)
  • Sule Pharmacy Ltd v Registered Trustees of Khoja Shia Janati (High Court Miscellaneous Application No. 147 of 1999)
  • Standard Chartered Bank of Uganda Ltd v Ben Kavuya and Barclays Bank (U) Ltd (High Court Miscellaneous Application No. 350 of 2006)
  • Rawal v Mombasa Hardware Ltd [1968] EA 392
  • Adonia v Mutekanga [1970] 1 EA 429
  • Busingye and Another v Gianluigi Grassi and Another [2014] HCB at page 142
  • Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Famous Cycle Agencies Ltd & 4 ors v Manshukulal Ramji Karia & others (Supreme Court Civil Appeal No. 16 of 1994)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Attorney General v AKPM Lutaaya (Supreme Court Civil Appeal No. 12 of 2007)
  • Florence Nabatanzi v Naome Binsobodde (Supreme Court Civil Appeal No. 6 of 1987)
  • Okech Verkam v Centenary Rural Development Bank (High Court Civil Appeal No. 93 of 2019)

Full judgment

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Sanlam General Insurance Limited v Quality Milk Diaries Limited (Miscellaneous Application 257 of 2022) [2023] UGCommC 256 (14 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.