Wakilii

Waswa & Another v Mayanja (Miscellaneous Application 98 of 2021)

High Court · [2021] UGHCFD 233 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit
Decision
Application granted; Civil Suit No. 040 of 2010 reinstated pending disposal of Civil Appeal No. 91 of 2017

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a suit dismissed under Order 17 Rule 5 CPR for want of prosecution should be reinstated where the dismissal occurred while an appeal from an interlocutory ruling in the same suit was pending, and where the applicants had been vigilant in prosecuting the suit while the respondent had repeatedly defied court directives. Filing of an appeal constitutes a step taken with a view to proceeding with the suit.

Outcome

Application granted; Civil Suit No. 040 of 2010 reinstated pending disposal of Civil Appeal No. 91 of 2017

Facts

The applicants sued the respondent in Civil Suit No. 040 of 2010 for mismanagement of an estate. The applicants filed witness statements and trial bundles as directed, but the respondent failed to do so despite extensions. The applicants obtained a default judgment under Order 17 Rules 3 and 4 CPR. The respondent's application to set aside the default judgment (Miscellaneous Application No. 44 of 2016) was dismissed. The respondent filed Civil Appeal No. 91 of 2017, which remained pending. During the pendency of the appeal, Civil Suit No. 040 of 2010 was dismissed on 4 September 2019 for want of prosecution under Order 17 Rule 5 CPR. The applicants then brought this application to set aside the dismissal order and reinstate the suit.

Issues

  1. Whether there are grounds for court to set aside the ruling made on 04.09.2019 dismissing Civil Suit No. 040 of 2010.
  2. What are the remedies available to the applicants.

Orders

  • The Order of this court made on 4th September 2019 which dismissed Civil Suit No. 040 of 2010 under Order 17 Rule 5(1) Civil Procedure Rules as Amended is hereby set aside.
  • Civil Suit No. 040 of 2010 is hereby reinstated pending the disposal of Civil Appeal No. 91 of 2017.
  • Each party shall bear its costs because there is no evidence that Civil Suit No. 40 of 2010 was dismissed at the instance of the respondent.

Rules and key headnotes

Civil Procedure — Dismissal for Want of Prosecution — Order 17 Rule 5 CPR — Application of Rule Where Appeal Pending
Order 17 Rule 5(1) CPR, which provides for automatic abatement of a suit where no application is made or step taken for six months by either party after the mandatory scheduling conference, does not apply where an appeal from an interlocutory ruling in the same suit has been filed and remains pending, as the filing of the appeal constitutes a step taken with a view to proceeding with the suit.
Civil Procedure — Dismissal for Want of Prosecution — Preconditions for Application of Order 17 Rule 5
Order 17 Rule 5(1) CPR envisages inaction by either party after the mandatory scheduling conference. Where no scheduling conference has been held because one party failed to file required documents, and the other party moved court for a default judgment, the application for default judgment constitutes a step taken with a view of proceeding with the suit, precluding dismissal under Order 17 Rule 5.
Administrative Law — Powers of Attorney — Scope and Construction — Authority to Represent in Court
A Power of Attorney must be construed strictly according to its terms. A Power of Attorney relating to management of specific properties and authorising employment of lawyers does not, without express provision, extend to representation in court proceedings concerning those properties. If court representation is intended, it must be specifically stated for certainty and avoidance of doubt.
Civil Procedure — Affidavits — Locus Standi of Deponent — Power of Attorney
An affidavit sworn by a person claiming authority under a Power of Attorney is incompetent for lack of locus standi where the Power of Attorney does not grant authority to represent the principal in court matters.

Legislation cited (4)

Cases cited (3)

  • Fredrick Zaabwe v Orient Bank & Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Comtel Integrators Africa Ltd v National Social Security Fund (High Court Miscellaneous Application No. 772 of 2016)
  • Meera Investments Limited v Uganda Investment Authority (High Court Miscellaneous Application No. 114 of 2015)

Full judgment

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

Waswa & Another v Mayanja (Miscellaneous Application 98 of 2021) [2021] UGHCFD 233 (19 November 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.