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Ggolooba v Kizito (Civil Appeal No.7 of 2006) [2007] UGSC 35 (7 June 2007)
- Citation
- [2007] UGSC 35
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Supreme Court of Uganda
- Panel
- Odoki, CJ, J.W.N.Tsekooko, JSC, Kanyeihamba, JSC, Mulenga, JSC, Katureebe ,JSC
- Case number
- Civil Appeal No.7 of 2006
- Language
- English
More details
- Court
- Supreme Court of Uganda
- Panel
- Odoki, CJ, J.W.N.Tsekooko, JSC, Kanyeihamba, JSC, Mulenga, JSC, Katureebe ,JSC
- Case number
- Civil Appeal No.7 of 2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court held that the Court of Appeal was correct in finding that the High Court erred in dismissing the application for reinstatement of the suit. The respondent's advocate had shown sufficient cause for non-appearance, as he was under the impression that settlement negotiations were ongoing. The Court emphasized that a mistake by an advocate should not be visited on the party, and that the affidavit explaining the absence was adequate. The technical objection regarding the affidavit's commissioning was dismissed as an afterthought, not raised at trial or pressed on appeal. Accordingly, the order dismissing the suit was set aside and the suit reinstated to be heard on its merits.
Court disposition
appeal dismissed
Orders
- The appeal is dismissed with costs in the Supreme Court.
- The order of the High Court dismissing the suit is set aside.
- The suit is reinstated to be heard on its own merits.
02
Material facts
Parties
Ggoloba Godfrey
Appellant Counsel: Mr. LutakomeHarriet Kizito
Respondent Counsel: Mr. Makada03
Procedural history
Posture
Civil Appeal / Supreme Court Judgment
04
Questions and positions
Legal issues
- 01
Whether the Court of Appeal was correct in overturning the High Court's dismissal of the suit for non-appearance.
- 02
Whether sufficient cause was shown for the respondent's advocate's failure to appear at the hearing.
- 03
Whether a mistake by an advocate should be visited on the party.
Party arguments
- Applicant
- Counsel for the appellant argued that the Court of Appeal erred in not upholding the High Court's dismissal of the suit, contending that the respondent's advocate had not shown sufficient cause for non-appearance and that the affidavit supporting reinstatement was defective as it did not bear the name of the commissioner for oaths.
- Respondent
- Counsel for the respondent maintained that sufficient cause was shown for non-appearance, as the advocate believed settlement negotiations were ongoing. The respondent argued that the affidavit was adequate and that any mistake by the advocate should not prejudice the party.
05
Court’s reasoning
Legal principles
- 01
Case law and general principles of justice
A mistake by an advocate should not be visited on the party.
- 02
Court of Appeal decision and affidavit evidence
Sufficient cause for non-appearance may be established by an advocate's affidavit if it explains the absence satisfactorily.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court held that the Court of Appeal was correct in finding that the High Court erred in dismissing the application for reinstatement of the suit. The respondent's advocate had shown sufficient cause for non-appearance, as he was under the impression that settlement negotiations were ongoing. The Court emphasized that a mistake by an advocate should not be visited on the party, and that the affidavit explaining the absence was adequate. The technical objection regarding the affidavit's commissioning was dismissed as an afterthought, not raised at trial or pressed on appeal. Accordingly, the order dismissing the suit was set aside and the suit reinstated to be heard on its merits.
Obiter and limits
- It was not necessary for the respondent to personally swear an affidavit where the advocate's explanation was sufficient.
- Technical objections to affidavits, such as the absence of the commissioner's name, should not override substantive justice, especially when not raised at trial.
Court disposition
appeal dismissed
- The appeal is dismissed with costs in the Supreme Court.
- The order of the High Court dismissing the suit is set aside.
- The suit is reinstated to be heard on its own merits.
Source and reliance status
Supreme Court of 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.
Supreme Court of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ; TSEKOOKO, MUĻENGA, KANYEIHAMBA, AND KATUREEBE, JSC)
CIVIL APPEAL No.7 OF 2006.
GGOLOOBA GODFREY ....................................
AND
RESPONDENT HARRIET KIZITO. [Appeal from the decision of the Court of Appeal at Kampala (Mpagi-Bahigeine, Engwau and Twinomujuni, JJ. A) dated 22<sup>nd</sup> February, 2006 in Civil Appeal No.65 of 2005]
JUDGMENT OF THE COURT
This is a second appeal from the Court of Appeal which allowed the appeal by the respondent whose suit had been dismissed in the High Court for non-appearance on the day of hearing.
Three grounds of appeal have been argued by Mr. Lutakome, counsel for the appellant, in this Court centering on whether the Court of Appeal was correct in not agreeing with the High Court that the respondent's advocate had shown sufficient cause for not appearing at the hearing of the case. The appeal is opposed by Mr. Makada, counsel for the respondent.
Having heard the submissions of both counsel and having considered the evidence on record, we are satisfied that the Court of Appeal came to the correct conclusion that the High Court erred in dismissing the application for reinstatement of the suit when the respondent's advocate had shown sufficient cause for not appearing because he was under the impression that the parties were still negotiating a settlement. His affidavit to that effect was, in our view, sufficient and it was not necessary for the respondent to personally swear an affidavit to that effect. It has been held that a mistake by an advocate should not be visited on a party. We see no merit in the argument by Counsel for the appellant that affidavit was not properly sworn because it did not bear the name of the commissioner for oath who commissioned it. We think that this was an afterthought on the part of the appellant as the matter was not raised in the trial court, or pressed in the Court
of Appeal.
In the result we find no merit in this appeal. It is accordingly dismissed with costs in this Court.
$\overline{2}$
We set aside the order of the High Court dismissing the suit and reinstate the suit to be heard on its own merits.
Dated at Mengo this 27<sup>th</sup> day of June, 2007.
B. L. ODOKI CHIEF JUSTICE
J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT
J. N. MULENGA JUSTICE OF THE SUPREME COURT
inusanh amba
JUSTICE OF THE SUPREME COURT
pruhali
B. M. KATUREEBE JUSTICE OF THE SUPREME COURT
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