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Uganda Telecom Ltd v Kilembe Investment Ltd (HCT – 01 – CV – MA – 0142 OF 2015)

High Court · [2016] UGHCCD 107 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for reinstatement of a dismissed civil appeal arising from taxation of costs
Decision
Appeal reinstated for hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the application for reinstatement of a dismissed civil appeal. It held that counsel's failure to appear because she was engaged in plea bargain proceedings at the same court constituted sufficient cause. The omission of a lawyer to attend court should not be visited on the client who had duly instructed counsel. Preliminary objections to irregularities in affidavit form were rejected as curable defects under Article 126(2)(e) of the Constitution, which mandates substantive justice over technicalities.

Outcome

Appeal reinstated for hearing on the merits

Facts

The applicant Uganda Telecom Ltd filed a civil appeal against taxation of costs. The appeal was scheduled for hearing on 16 December 2015. When the appeal was called, neither the applicant nor its counsel attended court. Counsel was engaged at the same court in a High Court plea bargain session interviewing accused persons. The trial judge dismissed the appeal for want of prosecution. The applicant then filed an application seeking reinstatement of the dismissed appeal under Order 43 Rule 16 of the Civil Procedure Rules, supported by affidavits sworn by Ms. Ruth Aliguma Ongom and Mr. Rashid Kibuuka. The respondent opposed the application on grounds including procedural defects in the affidavits and absence of sufficient cause for non-appearance.

Issues

  1. Whether a supplementary affidavit can be filed without prior leave of court.
  2. Whether an affidavit lacking the Commissioner for Oaths' name is fatally defective.
  3. Whether counsel's failure to appear constituted sufficient cause for reinstatement of a dismissed appeal.
  4. Whether the appeal has merit and high chances of success.
  5. Whether it is just and equitable to reinstate the appeal.

Orders

  • Application allowed.
  • Civil Appeal No. HCT - 01 - CV - CA - 027 of 2015 reinstated.
  • Costs of the application to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Affidavit Practice — Defect in Jurat — Omission of Commissioner for Oaths' Name — Whether Fatal
The omission of a Commissioner for Oaths' or Magistrate's name from an affidavit is not a fatal defect but a curable irregularity. Where a supplementary affidavit confirms the identity of the officer who administered the oath, the defect is cured. Article 126(2)(e) of the Constitution mandates substantive justice without undue regard to technicalities.
Civil Procedure — Appeals — Reinstatement of Dismissed Appeal — Sufficient Cause — Counsel's Negligence
Where counsel instructs an advocate, the advocate assumes control over the conduct of the case and the client cannot share that conduct. The omission or negligence of counsel ought not to be visited on the litigant. A mistake by an advocate, though negligent, may constitute sufficient cause for reinstatement of a dismissed appeal.
Civil Procedure — Affidavit Practice — Supplementary Affidavits — Filing Out of Time — Leave of Court
Where an applicant seeks to file a supplementary affidavit, leave of court should be sought. However, in the interest of justice, the court may allow a supplementary affidavit to be filed out of time where it would not prejudice the other party and the other party has had an opportunity to respond on the merits.

Legislation cited (8)

Cases cited (17)

  • Samuel Mayanja v Uganda Revenue Authority (HCT - 00 - CC - MC - 0017 of 2005)
  • Dr. Kiiza Besigye v Y.K. Museveni and Another (Election Petition No. 1 of 2015)
  • Mutooro Samuel v Best Kemigisa and Basaliza Francis (HCT - CV - M.A No. 096 of 2011)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Supreme Court Election Petition No. 1 of 2001)
  • Suggan v Roadmaster Cycles (U) Ltd [2002] EA 25
  • Nabukeera Hussein Hanifa v Kibule Ronal and Electoral Commission (Election Petition No. 0017 of 2011)
  • In the matter of Section 43 of the Judicature Statute and In the matter of the Retirement of David Behimbisa Bashakara (HCT - 05 - CV No. 0048 - 2001)
  • Hajati Safina Nababa v Yafesi Lule (Civil Appeal No. 9 of 1978)
  • Yowasi Kabiguruka v Samuel Byarufu (Court of Appeal Civil Appeal No. 18 of 2008)
  • Nicholas Roussos v Ghulam Hussein Habib Virani (Supreme Court Civil Appeal No. 9 of 1993)
  • Geoffrey Magezi and Another v Sudhir Rupaleria (Supreme Court Civil Application No. 10 of 2002)
  • Shabir Din v Ram Parkash Anand (1955) 22 EACA 48
  • Nakiridde v Hotel International (1987) HCB 85
  • Fairland University Ltd v National Council for Higher Education (High Court Miscellaneous Application No. 39 of 2005)
  • Patrick Makumbi and Another v Sole Electrics (Supreme Court Civil Appeal No. 11 of 1994)
  • Mbogo and Another v Shah (1968) EA 93
  • Canster Rags (U) Ltd v Stanbic Bank (U) Ltd, Bahabur Karmali and Riyaz Mithani (High Court Miscellaneous Application No. 401 of 2014)

Full judgment

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

Uganda Telecom Ltd v Kilembe Investment Ltd (HCT – 01 – CV – MA – 0142 OF 2015) [2016] UGHCCD 107 (2 December 2016)
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.