[2012] UGHC 8
The application was dismissed as incompetent because the court could not access the challenged interim order or the record of the application in which the order was issued. Without these documents, it was impracticable for the court to address the merits of the case. The failure of counsel to provide copies of the...
Source-derived case information.
- Citation
- [2012] UGHC 8
- Parties
- Applicant: Uganda Railways Corporation; Respondent: Ssalongo Lutaaya Kibandwa
- Court
- High Court of Uganda
- Jurisdiction
- Uganda
- Judgment Date
- 20 December 2012
- Case Number
- Misc. Appli. No. 546 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed as incompetent
- Judges
- Tuhaise, J
- Legal Topics
- Setting Aside Interim Orders, Competency of Application, Court Records Availability
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda Railways Corporation
Applicant
Ssalongo Lutaaya Kibandwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the interim order issued by the Registrar on 1st February 2011 should be set aside.
- 2 Whether the application is competent in the absence of the relevant court record or order.
Ratio Decidendi
The application was dismissed as incompetent because the court could not access the challenged interim order or the record of the application in which the order was issued. Without these documents, it was impracticable for the court to address the merits of the case. The failure of counsel to provide copies of the relevant records, despite repeated opportunities, left the court with no basis to proceed. The court relied on its inherent powers under section 98 of the Civil Procedure Act but found that the absence of the necessary documents rendered the application fatally defective.
Court Disposition
application dismissed as incompetent
Orders
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
21 paragraphs
**REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**LAND DIVISION**
**MISCELLANEOUS APPLICATION NO. 546 OF 2011**
***(ARISING FROM MISCELLANEOUS APPLICATION NO.43 OF 2011)***
***( ARISING FROM CIVIL SUIT NO.26 OF 2006)***
**UGANDA RAILWAYS CORPORATION................................................ APPLICANT**
**VERSUS**
**SSALONGO LUTAAYA KIBANDWA................................................. RESPONDENT**
**BEFORE HON. LADY JUSTICE PERCY NIGHT TUHAISE**
**RULING**
This was an application brought under section 98 of the Civil Procedure Act, cap 71; Order 9 rules 12 & 29; Order 50 rules 2, 6, & 8, and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that:-
1. ***The interim order issued against the applicant by the Registrar His Worship A. G Opifeni on 1st February 2011 be set aside.*** 2. ***The above order was at all times null and void.*** 3. ***The costs of this application be provided for.***
The grounds of the application are set out in two affidavits of **Mr. Emmanuel Lyamulemye** the acting Chief Executive Officer for the applicant. There is also an affidavit sworn by **Steven Musisi** an Advocate and Commissioner for Oaths. The application is opposed by the respondent **Ssalongo Lutaaya Kibandwa** who filed an affidavit in reply, to which the applicant filed an affidavit in rejoinder.
The background is that the applicant is the defendant in HCCS No. 026 of 2006 where the plaintiff alleges that he has been denied the use of plot 83 having been fenced and occupied by the defendant corporation.
Counsel filed written submissions on the application. In the application, affidavits and submissions of Counsel, references were made to miscellaneous application nos. 42 and 43 of 2011. The said applications, as well as the record of proceedings, including the relevant interim order allegedly issued by the registrar of this court, which the applicant seeks to have dismissed, were not on the file. This court’s efforts to have Counsel in this matter avail copies of their records for purposes of opening a duplicate file which this court could use as a basis to write the judgment proved futile . Counsel did not respond despite the cause listing of the matter several times to accord them an opportunity to avail their copies. Section 98 of the Civil Procedure Act empowers this court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
In the premises, I have no option but to dismiss this application as incompetent without addressing its merits. It is impracticable to address the merits of the case without accessing a copy of the challenged order or record of the application where the order challenged by the applicant was issued.
Each party will bear their own costs.
**Dated at Kampala** this 20th day of December 2012.
Percy Night Tuhaise
**JUDGE.**