The Commissioner General Of Customs and Excise East Africa v Home Garment s Limited (Civil Appeal 44 of 1973)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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

By majority, the Court of Appeal allowed the appeal. The trial judge, having refused the appellant's adjournment application, erred in immediately dismissing the suit under Order 15 rule 4 without first calling upon the appellant to proceed with or rest his case, thereby depriving him of the right to have his claim heard. The reference to dismissal 'for want of prosecution' under Order 15 rule 4 was wrong. The Court set aside the dismissal and ordered a fresh trial before another judge, commencing from the close of pleadings. Spry, V.P. dissented, taking the view that counsel for the appellant had unequivocally stated he could not proceed and should not be heard to say otherwise.

Outcome

Matter remitted to the High Court for re-trial before another judge

Facts

The appellant Commissioner General sued the respondent company for import duty allegedly payable on ready-made clothes imported into Uganda, alleging the goods were removed without payment of duty. The respondent admitted importing the goods but denied liability, asserting any duties due had been paid through the plaintiff's servants or agents. At trial the agreed issue was whether the duties claimed had been paid. An argument arose over which party should begin, and the trial judge ruled the plaintiff was to begin. Appellant's counsel said he was unable to start and applied for leave to appeal, which was refused. He then applied for an adjournment to obtain witnesses, some of whom were in Kenya. The trial judge refused the adjournment and dismissed the suit 'for want of prosecution' under Order 15 rule 4 with costs, without first calling upon the appellant to proceed with the witnesses available.

Issues

1. Whether the trial judge erred in dismissing the suit for want of prosecution under Order 15 rule 4 after refusing the plaintiff's application for an adjournment.
2. Whether the trial judge was obliged to call upon the plaintiff to proceed with his case before dismissing the suit.

Orders

• Appeal allowed.
• Order of the High Court set aside.
• Case ordered to be re-tried before another judge, commencing afresh from the end of the pleadings.
• Costs in the High Court to abide the result of the re-trial.
• Costs of the appeal awarded to the appellant.

Rules and key headnotes

Legislation cited (3)

• Civil Procedure Rules Order 15 rule 4
• Civil Procedure Rules Order 15 rule 1(1)
• Civil Procedure Rules Order 15 rule 1(2)

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