[2023] UGHCCD 232
The court found that the hearing of Miscellaneous Application No. 2098 of 2021 was conducted before the scheduled time without sufficient evidence that the applicant was notified of the change. Furthermore, the court erroneously proceeded on the basis that there was no affidavit in reply, despite one having been...
Source-derived case information.
- Citation
- [2023] UGHCCD 232
- Parties
- Applicant: Francis Drake Lubega; Respondent: Uganda Bus Operations Association Investments Ltd.; Respondent: Wilberforce Ssekubwa
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Miscellaneous Application 896 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Earlier Ruling
- Outcome
- application allowed; previous ruling and order set aside; matter to be heard interparties; each party to bear own costs
- Judges
- Nassuna Matovu, J
- Legal Topics
- Review of Court Orders, Procedural Fairness, Service of Process, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Drake Lubega
Applicant
Uganda Bus Operations Association Investments Ltd.
Respondent
Wilberforce Ssekubwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Earlier Ruling
Legal Issues
- 1 Whether the ruling in Miscellaneous Application No. 2098 of 2021 should be reviewed and the subsequent order set aside due to errors apparent on the face of the record.
- 2 Whether the applicant was denied a fair hearing due to lack of proper notification of the change in hearing time.
- 3 Whether the court erred in proceeding on the assumption that there was no affidavit in reply.
Ratio Decidendi
The court found that the hearing of Miscellaneous Application No. 2098 of 2021 was conducted before the scheduled time without sufficient evidence that the applicant was notified of the change. Furthermore, the court erroneously proceeded on the basis that there was no affidavit in reply, despite one having been duly filed. These constituted errors apparent on the face of the record, justifying a review and setting aside of the previous ruling. The court emphasized the importance of procedural fairness and the duty to ensure all parties are properly notified and given an opportunity to be heard. As the errors were attributable to the court, each party was ordered to bear their own costs.
Court Disposition
application allowed; previous ruling and order set aside; matter to be heard interparties; each party to bear own costs
Orders
- The ruling in Miscellaneous Application No. 2098 of 2021 and subsequent order are set aside.
- The said application shall be heard interparties.
Full Case Text
Judgment text and source record
18 paragraphs
## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF. UGANDA AT KAMPALA (LAND DTVTSTON) MISCELLANEOUS APPLICATION No. a96 of 2022
# ARISING FROM MISC. APPLICATION NO. 2O9A OF 2O2L IARISING FROM CIVIL SUIT No. 965 of 2O2Ol
#### FRANCIS DRAKE LUBEGA = ===== ===== ===== = == APPLICANT VERSUS
#### 1. UGANDA BUS OPERATIONS ASSOCIATION INVESTMENTS LTD.
I
2. WILBERFORCE SSEKUBWA= RESPONDENTS
### BEFORE: HON. JUSTICE FLAVIA NASSUNA RULING
- 1. Ihis was an application seeking revicw ol' the ruling in Misc. Application No.2098 ol202l allowing thc 2"d applicant to amend plcadings in IICCS. No. 965 ol 2020. It was brought undcr thc provisions of 0.46 t 1,2,6 and 8 of the Civil Procedure Rules plus S.98 of the Civil Procedure Act. It was brought by noticc olmotion which was supporlcd by an affidavit sworn by onc Namisango Evclyn advocate for thc applicant. 'I-he grounds of thc application were laid in thc notice of motion and alfidavit in support. Briefly thc grounds wcrc that; - a) The application was fixed for hearing on 313112023 at 12.00 noon but was called at 10.00 arn bcforc thc schcduled timc and therelorc proceeded expartc against thc applicant. - b) The applicant had filed an alfidavit in reply to thc said application but the court proceedcd on thc assumption that there was no affidavit in reply and thercforc procccdcd as if the application was not contcstcd.
- c) 'I'hcrc is thus an crror apparcnt on thc lace of thc rccord. - 2. 'l'he respondent filed an affidavit in rcply by which he called upon court to dismiss the application with costs. Bricfly hc stated that; - a) It is truc thc application had bcen fixcd for 12.00 noon but the court adjusted the time to 10.00 am and thc court clerk duly communicated this change in time to him. - b) That the said court clerk informed him that he also communicated this change in time to the applicant. - c) The amendment will not in any way prejudice the applicant since he will still be givcn an opportunity to respond to the amended plaint. - 3. Both parties filed written submissions which I have carefully studied and nced not rcproduce thcm hcrc. I havc also carefully studied thc plcadings and entire record o1'procccdings. - 4. I'he issue to be decided by court is whcthcr thc ruling in Miscellaneous Application No.2098 of2021should bc reviewed and subscquentorder set aside.
#### 5. Decision of court.
Aflcr carelully studying thc pleadings on record and submission of both parties I have notcd as follows.
a) Miscetlancous Application No. 2098 of 2021 which had bccn fixed for 3'd March 2022 at 12. 00 noon was callcd and hcard on the same day at 10.02 am before the scheduled time.'Ihcrc is no evidence on record to show that the change of time was duly communicated to the applicant who was the respondent in that application. Thc allcgation by the respondent that the
clerk told him that thc applicant had been duly notified is hearsay and cannot be relied upon by court.
- b) The application was granted on the basis that the respondent had not filed an affidavit in reply and therefore did not contest the application, yet in actual fact he had filed one. Counsel for the respondent did not dispute this fact and indeed the record shows that the said affidavit in reply had been filed at court registry onTth l;ebruary 2022. - c) It was therefore effoneous for the court to proceed before the scheduled time in the absence of one of the partics without ascertaining whether indeed all parties had been duly notified of the changc in time. - d) It was equally erroneous for court to grant the application for the reason that it was uncontested when in actual fact the respondent/applicant had filed an affidavit in reply. - e) Thc above two facts are crrors apparcnt on thc lace of the record which warrant a review of the said decision of court. - f) Consequently, the ruling in Misccllaneous Application No.2098/2021 and subsequent order are hereby set asidc and the said application should be heard interparlies. - g) Since these were errors of court, each party shall mcct their costs for this application.
The application is therefore hereby allowed as prayed and each party shall meet their costs for the same.
DATED at Kampala this ay of 2023
FLAVIA NAS MATOVU
JUDGE.