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Baliruno John v Canaansites Ltd (Miscellaneous Application No. 897 of 2024) [2025] UGHCCD 67 (13 June 2025)
- Citation
- [2025] UGHCCD 67
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Civil Division (Uganda)
- Panel
- Simon Peter M. Kinobe, J
- Case number
- Miscellaneous Application No. 897 of 2024
- Language
- English
More details
- Court
- HC: Civil Division (Uganda)
- Panel
- Simon Peter M. Kinobe, J
- Case number
- Miscellaneous Application No. 897 of 2024
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that while the applicant failed to provide sufficient reason for his absence and did not attach evidence of illness, the court record was incomplete regarding the antecedents to the ex parte order. In the interests of justice, and given the lack of comprehensive discussion by the parties on the circumstances leading to the ex parte order, the court determined it would be unjust to uphold the order without giving the applicant an opportunity to be heard. The ex parte order was therefore set aside on the condition that the applicant pays previously ordered costs and additional costs for the respondent's witness before the next hearing date. The applicant is permitted to defend himself in the main suit if these conditions are met.
Court disposition
Application allowed in part; ex parte order set aside subject to conditions.
Orders
- The hearing of HCCS No. 305 of 2016 is fixed for 21st August 2025 at 9:00 am.
- The applicant shall pay the costs ordered by court on 14th December 2023.
- The applicant shall pay additional costs for the day to enable the respondent's witness to travel for cross-examination.
- All costs must be paid before the hearing date of 21st August 2025.
- All parties are required to produce all their witnesses on 21st August 2025.
- The ex parte order is lifted subject to fulfilment of the above conditions.
- Costs of this application shall be in the cause.
02
Material facts
Parties
Baliruno John
Applicant Counsel: Masajjage StevenCanaansites Ltd
Respondent Counsel: Bukiya GilbertAmounts and remedies
- Witness Transportation Costs Ordered (claimed by Applicant): UGX 300,000
03
Procedural history
Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Order
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to have the ex parte order set aside.
- 02
Whether sufficient cause has been shown to warrant setting aside the ex parte order.
- 03
Whether the applicant should be allowed to defend himself in the main suit.
Party arguments
- Applicant
- The applicant argued that there is sufficient cause to set aside the ex parte order as he was unable to attend court due to illness and could not provide transportation for the witness as ordered. He claims he was interested in the matter and that justice requires the order be set aside so he can be heard.
- Respondent
- The respondent contended that the applicant was aware of the hearing dates, was served, and deliberately chose not to attend. The respondent disputed the amount ordered for witness transportation and argued that the applicant's illness should not have prevented the hearing since he had legal representation. The respondent asserted that the application lacked sufficient cause and should be dismissed with costs.
05
Court’s reasoning
Legal principles
- 01
Section 98 of the Civil Procedure Act Cap 71; Order 9 rule 27 of the Civil Procedure Rules S.I 71-1
Court may set aside an ex parte order for sufficient cause or under its inherent powers.
- 02
Section 98 of the Civil Procedure Act Cap 71
Exercise of inherent powers must be judicious and in the interest of justice.
06
Ratio, limits and disposition
Ratio decidendi
The court found that while the applicant failed to provide sufficient reason for his absence and did not attach evidence of illness, the court record was incomplete regarding the antecedents to the ex parte order. In the interests of justice, and given the lack of comprehensive discussion by the parties on the circumstances leading to the ex parte order, the court determined it would be unjust to uphold the order without giving the applicant an opportunity to be heard. The ex parte order was therefore set aside on the condition that the applicant pays previously ordered costs and additional costs for the respondent's witness before the next hearing date. The applicant is permitted to defend himself in the main suit if these conditions are met.
Obiter and limits
- The matter is one of the oldest before the court, having been filed in 2016.
- The applicant has repeatedly failed to attend court when required and has not paid costs previously ordered.
- Court's inability to access part of the record influenced the decision to set aside the ex parte order conditionally.
Court disposition
Application allowed in part; ex parte order set aside subject to conditions.
- The hearing of HCCS No. 305 of 2016 is fixed for 21st August 2025 at 9:00 am.
- The applicant shall pay the costs ordered by court on 14th December 2023.
- The applicant shall pay additional costs for the day to enable the respondent's witness to travel for cross-examination.
- All costs must be paid before the hearing date of 21st August 2025.
- All parties are required to produce all their witnesses on 21st August 2025.
- The ex parte order is lifted subject to fulfilment of the above conditions.
- Costs of this application shall be in the cause.
Source and reliance status
HC: Civil Division (Uganda)
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
HC: Civil Division (Uganda)
Judgment
THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO.897 OF 2024 (ARISING OUT OF HIGH COURT CIVIL SUIT NO. 305 OF 2016)
BALIRUNO JOHN :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS
VERSUS
CANAANSITES LTD :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON. JUSTICE SIMON PETER M. KINOBE
RULING
BACKGROUND
This application was brought under Sections 33 and 98 of the Civil Procedure Act and Order 9 rule 27 and Order 52 Rules 1-3 of the Civil Procedure Rules, S. I 71-1(as amended) for orders that;
- a) This Honorable Court sets aside the order issued on 27/05/2024 denying the 2nd defendant leave to defend himself and allowing the allowing the plaintiff to proceed ex parte. - b) The Costs of this Application be provided for.
13th June 2025
The application is supported by an affidavit sworn by Baliruno John whose grounds are briefly that;
- a) There is sufficient cause for this Honorable Court to set aside the order which allowed the matter to proceed ex parte. - b) During the hearing of the main suit, he instructed his advocate to recall the plaintiff's first witness in court. - c) Court allowed on condition that he pays UGX 300,000 (Three Hundred Thousand shillings only) for this witness' transportation. - d) When the matter came up for hearing the applicant was bedridden but sent his lawyer to represent him. - e) That due to his health condition, he was not able to provide the witness' transportation. - f) He informed his lawyer who agreed to improvise only to discover that court had ordered that the matter proceeds ex parte. - g) He was interested in the matter and that it is in the interest of justice that the application be granted.
The Respondent opposed the application by an affidavit in reply deponed by Susan Wabasa which states briefly that;
- a) The applicant was aware of the next hearing and was served but he deliberately chose not to attend the hearing. - b) That court ordered for costs for witness' transportation but did not mention the amount as UGX 300,000 (Three Hundred Thousand Shillings only). - c) The applicant's alleged sickness should not have affected the hearing of the suit since he had representation. - d) The applicant was deliberately trying to frustrate the main suit.
13th June 2025
- e) The application and supporting affidavit has no sufficient cause for setting aside the ex parte order. - f) The application be dismissed with costs.
REPRESENTATION
The applicant was represented by Masajjage Steven while the respondent was represented by Bukiya Gilbert.
ISSUE FOR DETERMINATION
Whether the applicant is entitled to a grant of the orders and reliefs sought
DETERMINATION
Having read the application, the affidavits attendant there to and the submissions of both parties. I find as herein.
The record shows that this matter was filed in 2016 which makes it one of the oldest matters before me. I take note of the fact that the applicant has severally not attended court when required. I also note that the applicant has been given opportunity to appear and cross-examine the respondent's 1st witness in HCCS No. 305 of 2016 in vain. For this, the applicant was condemned to costs on the 14th of December 2023. These costs were to be paid before the next hearing date. The same have not been paid to date.
I unfortunately could not access part of the record that led to the plaintiff/ respondent being granted an order to proceed ex parte in HCCS No. 305 of 2016. The record of court starts on the 27th day of May 2024.
13th June 2025
On the 27th day of May 2024 the matter came up for hearing in the presence of the plaintiff's lawyer and a director from the plaintiff company. The 2 nd defendant was not in court but his lawyer was present.
On the 20th May 2025 the matter came up again. Counsel for the applicant and the respondent were in court. The costs ordered by court had still not been paid.
In this application the applicant alleges that his conduct is as a result of non-service of hearing notices and sickness. Unfortunately, the applicant does not attach any evidence of sickness. The court has not had the opportunity to interact with the applicant as he has never attended court.
I am cognizant of all the authorities cited by the parties. I agree with them and find no reason to depart from them.
Court can set aside an order to proceed ex parte for sufficient cause or under Section 98 of the Civil Procedure Act Cap 282 using its inherent powers. It is vital to note that these powers should be exercised judiciously.
In this application and for the reasons cited above I find that the applicant has given no sufficient reason that would lead to the lifting of the order to proceed ex parte. However, given that court could not access the record that would explain the antecedents that led to the grant of an order to proceed ex parte, it would be unjust to uphold the same. The history of the same is also not clearly alluded to or discussed comprehensively by the parties in this application. I therefore find that it is in the interests of justice to set aside the ex parte order on certain conditions, so that the
13th June 2025
applicant is heard on whatever defense he may have. I therefore order as follows; -
- 1. The hearing of HCCS No. 305 of 2016 shall be on the 21st of August 2025 at 9:00 am - 2. The applicant shall pay the costs as ordered by court on the 14th December 2023. - 3. The applicant shall pay additional costs for the day to enable the respondent's witness travel for cross examination. - 4. The above costs shall be paid before the hearing, which is slated for the 21st of August 2025. - 5. All parties in HCCS No. 305 of 2016 are required to produce all their witnesses on the 21st of August 2025. - 6. The order to proceed ex parte shall be lifted subject to fulfilment of the conditions in 2,3 and 4 above. - 7. Costs of this application shall be in the cause.
I, so order
…………………………………………………
SIMON PETER M. KINOBE JUDGE
DATE: 13th June 2025
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