Wakilii

Zigulaki Godfrey and 2 Others v Nabagereka Maria Roza (Miscellaneous Application No. 40 of 2022)

High Court · [2022] UGHC 161 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate High Court Civil Appeal No. 30 of 2021, which arose from Kalungu Magistrates Court Civil Suit No. 007 of 2019
Decision
High Court Civil Appeal No. 30 of 2021 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 granted the application to set aside the dismissal order and reinstated Civil Appeal No. 30 of 2021. The court found sufficient cause for non-appearance where the appellants and their counsel were never served with hearing notices and were unaware that the appeal had been fixed for hearing. Failure to serve hearing notices resulted in the appellants being condemned unheard, denying them a fair hearing. The appeal was reinstated to be determined on its merits.

Outcome

High Court Civil Appeal No. 30 of 2021 reinstated for hearing on the merits

Facts

The applicants had filed High Court Civil Appeal No. 30 of 2021 arising from Kalungu Magistrates Court Civil Suit No. 007 of 2019. On 7 February 2022, the appeal was dismissed for non-attendance when it was called for hearing. The applicants' lawyer, Mwanje Robert, later learned of the dismissal when he went to the registry to have the appeal fixed. The applicants and their counsel alleged they never received hearing notices and were unaware the appeal had been fixed. They stated that only the respondent's counsel was present when the appeal was dismissed. The respondent fixed the appeal for hearing but never served notices on the appellants. The respondent filed an affidavit in reply alleging the application was brought in bad faith and using delaying tactics, but did not deny the assertions regarding non-service of hearing notices.

Issues

  1. Whether the applicants were prevented by sufficient cause from entering appearance when High Court Civil Appeal No. 30 of 2021 was called for hearing.
  2. Whether the dismissal order should be set aside and the appeal reinstated.

Orders

  • Application granted.
  • High Court Civil Appeal No. 30 of 2021 reinstated.
  • Appeal to be determined on its merits.
  • Costs to follow the cause.

Rules and key headnotes

Appeals — Dismissal for Non-Appearance — Reinstatement
Where an appellant does not enter appearance on a day fixed for hearing the appeal, the court may dismiss the appeal under Order 43 Rule 14 of the Civil Procedure Rules, but the appellant may apply under Order 43 Rule 16 to have the appeal reinstated upon proving sufficient cause for non-appearance.
Sufficient Cause — Service of Hearing Notices
Failure to serve hearing notices on an appellant or their counsel, resulting in the appellant being unaware that an appeal has been fixed for hearing, constitutes sufficient cause for non-appearance and warrants reinstatement of a dismissed appeal.
Fair Hearing — Natural Justice
Dismissing an appeal for non-appearance without service of hearing notices results in the appellant being condemned unheard, denying them a fair hearing and an opportunity to be heard, which warrants setting aside the dismissal in the interest of justice.
Admissions — Failure to Deny
Where a party alleges a fact in an affidavit and the opposing party does not deny that fact in reply, the party against whom the allegation is made is taken to have accepted the fact.

Legislation cited (6)

Cases cited (4)

  • Abel Belemesa v Yesero Mugenyi (Miscellaneous Application No. 126 of 2019)
  • William Odoi Nyandusi v Jackson Oyuko (Court of Appeal Civil Application No. 32 of 2018)
  • Bishop Jacinto Kibuuka v The Uganda Catholic Lawyers Society and Another (Miscellaneous Application No. 696 of 2018)
  • Oloka Onyango and others v Attorney General (Constitutional Petition No. 8 of 2014)

Full judgment

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

Zigulaki Godfrey and 2 Others v Nabagereka Maria Roza (Miscellaneous Application No. 40 of 2022) [2022] UGHC 161 (17 November 2022)
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.