[2012] UGHCCD 13
The High Court found that the trial Magistrate's dismissal of the application was a grave material irregularity, as the applicant was present in court through its principal officer and had provided a valid explanation for counsel's absence. The Magistrate's decision was unjustified, especially given the absence of...
Source-derived case information.
- Citation
- [2012] UGHCCD 13
- Parties
- Applicant: Rubace Building & Civil Engineering Contractors Company Limited; Defendant: M/s Bwaka Building Construction Ltd; Defendant: Hima Cement Limited
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- CIVIL REVISION No. 0002 OF 2008
- Procedural Posture
- Civil Revision / Ruling
- Outcome
- application allowed; magistrate's dismissal set aside; application to be heard on merits
- Judges
- Owiny-Dollo, J
- Legal Topics
- Revision of Magistrate Orders, Dismissal for Nonappearance, Costs Award, Irregularity in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rubace Building & Civil Engineering Contractors Company Limited
Applicant
M/s Bwaka Building Construction Ltd
Defendant
Hima Cement Limited
Defendant
Procedural Posture
Civil Revision / Ruling
Legal Issues
- 1 Whether the trial Magistrate's dismissal of the application for absence of counsel, despite the applicant's presence and explanation, was irregular.
- 2 Whether the dismissal occasioned a miscarriage of justice warranting revision by the High Court.
Ratio Decidendi
The High Court found that the trial Magistrate's dismissal of the application was a grave material irregularity, as the applicant was present in court through its principal officer and had provided a valid explanation for counsel's absence. The Magistrate's decision was unjustified, especially given the absence of any evidence of dilatory conduct by the applicant. The High Court exercised its revisionary powers under section 83 of the Civil Procedure Act to set aside the dismissal and ordered that the application be heard on its merits. Costs for the day were awarded to the respondent, but each party was to bear its own costs for the revision application.
Court Disposition
application allowed; magistrate's dismissal set aside; application to be heard on merits
Orders
- The order of the Magistrate dismissing Kasese Misc. Application No. 22 of 2007 is set aside.
- Kasese Misc. Application No. 22 of 2007 shall be proceeded with on the merits.
Full Case Text
Judgment text and source record
19 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA; AT FORT PORTAL**
**CIVIL REVISION No. 0002 OF 2008**
**(From Kasese Misc Applica. No. 22 of 2007; arising from Civ. Suit No. 37 of 2007)**
**RUBACE BUILDING & CIVIL }**
**ENGINEERING CONTRACTORS } ::::::::::::::::::::::::::::::::::::::::: APPLICANT/OBJECTOR**
**COMPANY LIMITED }**
*VERSUS*
**1. M/s BWAKA BUILDING }**
**CONSTRUCTION LTD } :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**
**2. HIMA CEMENT LIMITED }**
**BEFORE: - THE HON. MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO**
**RULING**
The Applicant had moved Court in Kasese Misc. Application No. 22 of 2007 seeking certain reliefs stated therein. When the matter came for hearing, counsel for the Applicant was not in Court to argue the application though the Managing Director of the Applicant was in Court, and explained that the Applicant’s counsel was engaged in the High Court at Mabara. Counsel for the Respondent then consented to an adjournment, but prayed for costs of the day’s proceedings. Other than oblige the parties’ plea, the trial Magistrate dismissed the application with costs; hence this application for revisionary orders of that decision, which is founded on the grounds that the order of the trial Magistrate was irregular and occasioned a miscarriage of justice to the Applicant.
It is indeed strange that the learned trial Magistrate chose to dismiss the application when the Applicant was present in Court through its principal official; and had clearly given an explanation for its counsel’s absence. It does not require restating that the High Court enjoys precedence over the Magistrate’s Court in all proceedings. Furthermore, there is no evidence that the Applicant was guilty of any dilatory conduct for which the Court would have been justified to order that the principal officer prosecutes the application in the absence of its counsel. It is evident that the decision of the Magistrate was a grave material irregularity which manifestly occasioned an injustice to the Applicant.
This Court is mandated by the provisions of section 83 of the Civil Procedure Act (Cap 71) to intervene in such a situation and revise what is a glaringly unjust decision. I therefore set aside the order of the Magistrate dismissing Kasese Misc. Application No. 22 of 2007; and order that it be proceeded with on the merits. I grant the Respondent the costs of the proceedings for that day. However, the circumstance surrounding this matter requires that the parties bear their respective costs in the application before me. I so order.
**Alfonse Chigamoy Owiny – Dollo**
**JUDGE**
**20 – 06 – 2012**