[1974] UGCA 1


JUDGMENT OF MUSTAFA, J. A.

The appellant had filed an action against the respondent in respect of a sum of money as due for duty payable for ready made clothes imported into Uganda. In the plaint the articles of clothing and the duties payable for them were specified, and the appellant had alleged that the\*respondent had removed the said goods without paying the duties for them. In its defence the respondent admitted having imported into Uganda the articles as alleged but denied liability to duty and stated inter alia " that any duties due and owing on the said

goods were duly paid to through the plaintiff's servants and/or agents."

- •' On the day set down for trial the trial judge was told that the agreed issue was whether or not the duties claimed in the plaint were paid to the plaintiff or any person with authority to receive them. Then an argument ensued as to who was to begin and the trial judge, surprisingly in my view, ruled "The plaintiff is to begin."

Counsel for the appellant appeared astonished at this ruling and asked for a short adjournment to see "whether I am in a position to begin." After a short adjournment counsel for the .appellant said to the trial judge:

In view of the pleadings I find I am unable to start. I apply for leave to appeal to the Eastern African Court u

of Appeal against the. Court's order. Counsel for the respondent in reply applied for the suit to be dismissed with costs under order 15 rule 4-.

II

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The trial judge then gave a history of the matter and framed, issues including the agreed issue couched somewhat in different terms. long ruling detailing the for the first time,.four earlier referred to, though He then said:

"In my opinion the issues are quite clear on the face of the pleadings and if both sides are ready the hearing can commence right away. I see no reason for further delay. Leave to appeal to the Eastern African Court of Appeal is refused."

11 Counsel for the appellant then applied for an adjournment in order to got my witnesses some of whom are in Kenya."

Counsel for the respondent objected to the application for .adjournment and again prayed for the case to be dismissed with costs.

and went on Under Order 15 Rule The trial judge refused the application for adjournment, "the suit is accordingly dismissed for want of prosecution with costs to the defendant. . 4 C. P. R."

th? suit It is clear that the trial judge was wrong to have dismissed "for want of prosecution" under the provisions of Order 15 Rule 4. Counsel for the respondent conceded this, but submitted that the trial judge had merely made a slip, and that the suit was in fact dismissed under the provisions ^| of Order 15 Rulo 4 for want of proof of the case on the part of the appellant who, ho submitted, "wilfully refused to call \wpvidence."

In my view, when an application for adjournment is made, o. Court in its discretion may either allow or refuse it, and make such order for costs occasioned by such adjournment us it thinks fit: see Order 15 Rule 1 (1) and (2).

The Court would not be entitled to make any other order under such an application. Here counsel for the appellant had applied for an adjournment as some of his witnesses were in Kenya, and the trial judge was justified in refusing to grant the application. It is true that counsel for the respondent had, in his objection to the adjournment, also applied for the case to be dismissed with costs, on what ground it was not stated. 3?forc the trial judge could dismiss the case, the appellant.¹ s counsel had a right to be heard. Here no such opportunity was afforded him, and the trial judge, in refusing to grant the appellant's application for adjournment, proceeded forth-with to dismiss the case "for want of prosecution." This cannot be

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After the rejection of the appellant's application for adjournment, the appellant should have been called upon to proceed to prove his case or call his evidence, and only if the appellant declined or was unable to do so, could the trial judge forth-with decide and dismiss the case under the provisions of Order 15 Rule 4-. do such opportunity was afforded the appellant here; the appellant's case was dismissed without his being given a chance to prove it.

I am aware that in his previous argument as to who was to begin and in his application for leave to appeal to this Court against the ruling of the trial judge in that regard counsel for the appellant had said "I ask for an adjournment for a short time to see whether I am in position to begin" and again "In view of the pleadings I find myself unable to start". But those statements were made in the context of the applications as.to who was to begin and for leave to apply to this Court, and could not be imported into his subsequent application for an adjournment after his applications had been turned down. Uhen making his application for adjournment, counsel for the appellant had stated he wanted the adjournment "in order to. got my witnesses some of whom are in Kenya". That would indicate to me that he perhaps had some witnesses available on the day of the hearing; in fact that transpired to be the case. Counsel for the appellant, in his.affidavit in support of his intended appeal to this Court, deponed that ho had 4 witnesses available to give evidence in court on tha material day. That assertion was not disputed by counsel for the respondent; respondent's counsel's complaint was that counsel for the appellant should have informed the court that he had some witnesses available to proceed with the hearing. Perhaps he had a point there. However I would have thought that any counsel would have, after his application for adjournment has been refused, a right to expect a trial judge to ask him whether he would then be in a position to proceed with the case. It would then be for counsel for the appellant to say what course he would adopt, to call evidence, to argue the case on legal grounds on the pleadings, or not to proceed with the case at all. I do not think it was for counsel for the appellant to attempt to anticipate what the trial judge's ruling would be and to supply all information about the absence or presence of nil his witnesses before a ruling was made. A

rv I myself think that counsel for the appellant could have made his position clearer at some stage- in the course of the proceedings and to have informed the trial judge that he was ready to proceed with the witnesses he had available, He should have been prepared for appropriate action should the trial judge rule against him,as was done here, as to which party was to begin. Nevertheless this was a comparatively minor lapse, end was no ground at all for the trial judge to take the drastic step to shut out the appellant and to deprive him of on opportunity to decide whether he wanted to proceed with his case.

In view of the opinion I hold that the trial judge had erred in dismissing the case on an application for an adjournment without affording the appellant an opportunity to be heard, I do not propose to deal with the issue whether a disposal of the case in terms of Order 15 Rule 4 would be a decision on the merits, as that would be unnecessary for the decision of the appeal.

I would allow the appeal, set aside the- decision of the High Court, and order that the case be re-tried before another judge, and that the hearing should commence afresh from the pleadings. I would allow the costs of the appeal to the appellant, but order that the costs incurred in the High Court do abide the result of the re-trial.

Dated at Kampala this 4th day of January, 1974

pk/pa

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A. MUSTAFA

JUSTICE OF APP.iAL

IN THE COURT OF APPEAL FOR EAST AFRICA AT KAMPALA

(Coram: Duffus, P., Spry, V. P. and Mustafa, J. A.)

CIVIL APPEAL NO. 44 OF 1973

### **BETWEEN**

THE COMMISSIONER GENERAL OF CUSTOMS & EXCISE EAST AFRICA APPELLANT $A$ $N$ $D$

HOME GARMENTS LIMITED RESPONDENT

> (Appeal from the order of the High Court of Uganda at Kampala (Kantinti, J.) dated 8th May, 1973

> > in

Civil Suit No. 978 of 1972)

## JUDGMENT OF DUFFUS, P.

I have read the judgments of Spry V. P. and Mustafa J. A. The learned trial judge purported to dismiss this suit for want of prosecution under Order 15 rule 4 of the Civil Procedure Rules. The facts have been fully set out by Mustafa J. A. and I agree with him that the learned judge was wrong to dismiss the suit at that particular stage. The immediate matter before the court was an application for adjournment. The judge acted within his discretion in refusing the application but he was, in my view, wrong to then dismiss the suit without first calling upon the plaintiff/appellant to proceed with his case. The appellant may then have called the witnesses that he had in court or may have elected to rest his case on the pleadings. The judge would then have called upon the defendant/respondent Co. to proceed with its case and in a similar manner the /defence may have.........

defence may have rested its case on the pleadings or have called evidence. In any events both the advocates for the plaintiff and for the defence weald have been entitled to address. The judgment of the court would then have been a judgment on the merits of the case. As it is, the plaintiff/appellant has been deprived of his vested right to have his claim determined by the court.

I agree that this appeal must be allowed and that the correct order is for the action to be re-tried before another judge. I am further of the view that the entire hearing should start afresh as from the end of the pleadings, so that the informal agreement made in court as to the issues in the case and the ruling as to who should start would not bind the parties nor the judge who re-hears the case and as Mustafa J. A. agrees, it is so ordered.

I find the question of costs difficult. The appellant's advocate clearly contributed to the misunderstanding that arose at the trial, but then so did the respondent's advocate when he applied for a dismissal of the action. The appellant clearly had the right'and /'X indeed had to come to this court in order to correct the judge's order of dismissal. I agree with Mustafa J. A. that the fairest order is that the costs in the court below should abide the result of the re-trial and that the appellant should have the costs of this appeal. The appeal is therefore allowed, the order of the High Court set aside, and the case is ordered to be re-tried before another judge. The costs in the High Court will abide the result of the re-trial and the appellant will have the costs of this appeal.

> Dated at Kampala this 4th day of January, 1974 W. A. H. DUFFUS

JAO-

■c-

IN THE COURT OF APPEAL FOR EAST AFRICA AT KAMPALA

(Coram: Duffus, P. , Spry, V. P. and Mustafa, J. A.)

## CIVIL APPEAL NO. 44 OF 1^7?

BETWEEN

APPELLANT THE COMMISSIONER GENERAL OF CUSTOMS AND EXCISE, EAST AFRICA

AND

HOME GARMENTS LIMITED RESPONDENT

(Appeal from the order of the High Court of Uganda at Kampala (Kantinti, J.) dated 8th May, 1973

in

Civil Case No. 978 of 1972 ).

### JUDGMENT OF SPRY, V. P.

I have had the advantage of reading the judgment of Mustafa, J. A. I agree with him that the trial judge was wrong to refer to want of prosecution and that he was wrong to dismiss the suit after refusing an adjournment, without calling on the appellant to proceed. He appears to have dealt simultaneously with applications by the appellant for adjournment and by the respondent for dismissal instead of taking them one by one and, if the record is correct, he does not appear to have invited counsel for the appellant to reply after the respondent had asked that the suit be dismissed.

In spite of all this, however, I would dismiss the appeal. When the learned judge had given his ruling on who was to begin, counsel for the appellant said that he was not in a position to continue with the case. Somewhat inconsistently, he then asked for a short adjournment to

/consider whether

consider whether he was in a position to begin. He was allowed this, and on his return he said again that he found himself unable to start. He then sought leave to appeal against the judge's ruling. That application was refused and he then applied for an adjournment "to get my witnesses".

It is not without'significance that counsel for the respondent twice during the day asked that the suit be dismissed.

It is also not without significance that in A.. '• refusing leave to appeal, the judge had said ¹¹ I see no It was immediately after this, that counsel for the appellant asked for an adjournment- to' get his witnesses. . reason for any further delay."

> While I think that the judge was at fault in the way he handled the matter, I think that counsel for the appellant had taken his stand unequivocally on the ground that he could not proceed. I do not think he should now Ijwould dismiss the appeal. be heard to say the reverse.

> > Dated at Kampala this 4th day of January, 1974-

J. F. SPRY

# VICE PRESIDENT

gda ^I certify that this is ^a true copy of the original.

.....

DEPUTY REGISTRAR.