Wakilii

Ssemanda and 5 Others v Nakku Tereza (Miscellaneous Application No. 166 of 2019)

High Court · [2021] UGHCCD 262 · 2021 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of a ruling dismissing an application for extension of time to appeal
Decision
Review application granted; ruling set aside but consequential relief refused; applicants directed to file fresh suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the trial judge committed an error apparent on the face of the record by treating an application for extension of time to appeal as an application for reinstatement of a dismissed suit. The ruling in Miscellaneous Application No. 0172 of 2018 was reviewed and set aside. However, the consequential order for filing an appeal out of time was refused because a suit dismissed under Order 17 Rule 6 of the Civil Procedure Rules cannot be appealed; the only remedy is to file a fresh suit subject to limitation laws.

Outcome

Review application granted; ruling set aside but consequential relief refused; applicants directed to file fresh suit

Facts

The applicants filed Civil Suit No. 57 of 2012 in November 2012. The defendants did not respond and the applicants took no further steps for over two years. On 18 May 2016, the Deputy Registrar dismissed the suit under Order 17 Rule 6 of the Civil Procedure Rules for failure to prosecute. Over two years later, the applicants filed Miscellaneous Application No. 0172 of 2018 seeking an extension of time to appeal the dismissal. Justice Nabisinde dismissed that application on 5 December 2019, treating it as an application for reinstatement rather than for extension of time. The applicants then filed the present application (Miscellaneous Application No. 166 of 2019) seeking review of Justice Nabisinde's ruling on the ground that she had decided the application on grounds not raised by the parties and considered orders not prayed for.

Issues

  1. Whether the applicants have proved grounds for review of the ruling in Miscellaneous Application No. 0172 of 2018
  2. What remedies are available to the applicants

Orders

  • The Ruling of this Court in Miscellaneous Application No. 0172 of 2018 is hereby reviewed and set aside.
  • The Applicant's consequential order for filing the Appeal out of time is not granted.
  • The Applicants should follow the right procedure provided under Order 17 Rule 6(2) of the Civil Procedure Rules and file a fresh suit subject to the laws of limitation.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Review — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record is one that is manifest or self-evident and does not require examination of extrinsic evidence or a long drawn process of reasoning to establish. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record is made out. A mere erroneous decision or a view that is one of two possible views does not constitute an error apparent on the face of the record.
Civil Procedure — Review — Error Apparent on Face of Record — Deciding Application on Grounds Not Raised
It is an error apparent on the face of the record for a trial judge to determine an application based on grounds that were not adduced by the parties and to consider orders that were not prayed for by the parties. Where a judge treats an application for extension of time to appeal as an application for reinstatement of a dismissed suit, this constitutes an error that does not require admission of extrinsic evidence to understand and is therefore reviewable.
Civil Procedure — Dismissal for Want of Prosecution — Remedy Available — Order 17 Rule 6
Where a suit is dismissed under Order 17 Rule 6 of the Civil Procedure Rules for failure to take any step for two years, the only remedy available to an aggrieved litigant is to file a fresh suit subject to the law of limitation. An application for extension of time within which to file an appeal against such a dismissal is incompetent and cannot be maintained because the law does not provide for reinstatement of suits dismissed under Order 17 Rule 6.
Civil Procedure — Extension of Time — Sufficient Cause — Dilatory Conduct
Sufficient cause for extension of time to appeal must relate to the inability or failure to take the particular step in time. Where applicants file a suit, allow it to be dismissed for want of prosecution, and then wait over two years before seeking an extension of time to appeal the dismissal, they are guilty of dilatory conduct and have not established sufficient cause for the grant of the extension.

Legislation cited (10)

Cases cited (8)

  • FX Mubuuke v Uganda Electricity Board (Miscellaneous Application No. 98 of 2005)
  • Batuk K. Vyas vs Surart Borough Municipality & Ors (1953) Bom 133
  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • Mugo v Wanjiri [1970] EA 481
  • Njagi v Munyiri [1975] EA 179
  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1986)
  • Nicholas Roussos v Gulam Hussein Habib Virani & Another (Civil Appeal No. 9 of 1993)
  • Prof. Oloka Onyango & Ors v Attorney General (Constitutional Petition No. 6 of 2014)

Full judgment

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

Ssemanda and 5 Others v Nakku Tereza (Miscellaneous Application No. 166 of 2019) [2021] UGHCCD 262 (24 March 2021)
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.