THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 337 OF 2014

(ALL ARISING FROM CIVIL SUIT NO 593 OF 2012)

ENGINEERING TRADELINKS LTD ………………….. APPLICANT

VERSUS

DFCU BANK LIMITED …………………………….RESPONDENT

BEFORE: HON. LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

This application was made under 0.9r23 and 0.52 rr1, 2 and 3 C.P.R and S.98 C.P.A, seeking orders of this court reinstating the Applicants Civil Suit 593/2012.

Costs of the application were also applied for.

The suit was dismissed for lack of prosecution on 08.04.14.

Counsel for the Applicant contended that the absence of the Applicant and Counsel was due to an inadvertent mistake – i.e. noting the wrong date in the diary and that such error should not be visited upon the Applicant.

That it was in the interests of justice that suit be reinstated and heard on merit.

The application was supported by the affidavit of Zawedde Lukwago Advocate, and was opposed by the affidavit sworn by Edwin Tabaro Advocate dated 26.05.14.  There is also an affidavit in rejoinder deponed by Bernard Okongo Bukare.

The application was heard on 28.05.14.

Counsel for the Applicant went through the application and grounds thereof relying upon the supporting affidavit.  It was then submitted that no injustice would be occasioned to the Respondent as the parties had earlier agreed to a partial settlement as evidenced by a Consent order dated 08.11.13.

That the entire admitted sum and more was deposited with the Respondent and what remained to be resolved was the balance which the Applicant contends results from uncalled for penalties imposed by the Respondent.

Counsel for the Respondent opposed the reinstatement wondering how 2 law firms instructed in the matter could both have mistaken the date for hearing, yet matter was adjourned in presence of Counsel.  However, Counsel agreed that this should not be visited upon the Applicant.

Relying upon the case of William Wanendeya vs. Gilbert K Wambi Civ App 06/2002, Counsel stated that it sets out principles to be fulfilled before a case is reinstated.

Contending that the Applicant in the present case was guilty of dilatory conduct and that application was only meant to further delay Applicants meeting of their financial obligations to the Respondent, Counsel prayed that application be dismissed with costs.

Reiterating the earlier submissions, Counsel for the Applicant insisted that there was no dilatory conduct on part of the Applicant.  And that therefore Applicant should not be deprived of the right to be heard, more so in determining how much is due to Respondent.

The ruling was fixed for 05.06.14 but due to the busy schedule of the court, it was not delivered until 14.07.14.

On that date, court allowed the application and reinstated the suit, with orders that the costs would abide the outcome of the main suit.

Court promised to give reasons for its decision later and the following are the reasons:-

It is apparent that the parties had reached a partial out of court settlement and some moneys paid except for the balance, upon which the Applicant wishes to be heard.

While both Counsel for the Applicant did not appear on the date when the suit was dismissed, they advanced reasonable cause for their failure to do so.  In any case, decided cases have established that the mistake or error of Counsel ought not to be visited upon the litigant.

Since the bulk of the money has been repaid and the dispute remains only on the balance, it is only just and fair that the suit be reinstated so that the Applicants are not deprived of the fundamental right to be heard.

It has further been established by decided cases that “to deny a party a hearing, should be the last resort of a court”.

In the circumstances of this case, where parties were still engaged in discussions, and a substantial amount of the money had been paid, no injustice will be occasioned to the Respondent if the suit is re-instated.

The application was accordingly allowed for all those reasons.  Costs, as earlier indicated will abide the outcome of the main suit.

FLAVIA SENOGA ANGLIN

JUDGE

15.07.14