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Volcano Limited v Board of Governors Old Kampala Secondary School (Civil Suit No. 436 of 2018) [2022] UGHCLD 119 (6 June 2022)
- Citation
- [2022] UGHCLD 119
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Land Division (Uganda)
- Panel
- Nkonge, J
- Case number
- Civil Suit No. 436 of 2018
- Language
- English
More details
- Court
- HC: Land Division (Uganda)
- Panel
- Nkonge, J
- Case number
- Civil Suit No. 436 of 2018
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The suit is dismissed for want of prosecution because the plaintiff failed to appear for hearing and did not comply with the court's directive to file witness statements. The defendant appeared and made admissions regarding the tenancy agreement and refund, but denied liability for the claimed damages. The court finds that the requirements of Order 9 rule 22 of the Civil Procedure Rules are met, warranting dismissal of the suit. The counterclaim remains to be determined, and directions are given for its further prosecution.
Court disposition
Suit dismissed for want of prosecution; counterclaim to proceed.
Orders
- Civil Suit No. 436 of 2018 is dismissed for want of prosecution.
- All witness statements for the counterclaim to be served and filed by 14th July, 2022.
- If the counter-defendant does not appear with witnesses and proof of service is provided, the court shall proceed ex parte on the counterclaim.
- If the counterclaimant fails to appear with witnesses on the hearing date, the counterclaim shall also be dismissed.
- Hearing date for the counterclaim set for 16th November, 2022 at 9:30 am.
- Costs of the dismissed suit shall depend on the outcome of the counterclaim.
02
Material facts
Parties
Volcano Limited
PlaintiffBoard of Governors Old Kampala Secondary School
DefendantAmounts and remedies
- Refund Admitted by Defendant: UGX 240,000,000
- Special Damages Claimed by Plaintiff: UGX 252,693,500
03
Procedural history
Posture
Civil Suit / Ruling on Dismissal for Want of Prosecution
04
Questions and positions
Legal issues
- 01
Whether the suit should be dismissed for want of prosecution due to the plaintiff's failure to appear and comply with court orders.
- 02
Whether the defendant's admissions and counterclaim affect the disposition of the main suit.
Party arguments
- Applicant
- The plaintiff did not appear in court and did not file witness statements as directed. No explanation was offered for their absence or non-compliance with court orders.
- Respondent
- The defendant admitted that a tenancy agreement existed but denied liability for renovation and construction costs claimed by the plaintiff. The defendant asserted that the works were in contravention of KCCA laws and that a refund of Ugx 240,000,000/= had already been made. The defendant also alleged fraudulent conduct by the plaintiff regarding a Tax Clearance Certificate.
05
Court’s reasoning
Legal principles
- 01
Order 9 rule 22 of the Civil Procedure Rules
Where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the court shall make an order that the suit be dismissed unless the defendant admits the claim or part of it.
- 02
Civil Procedure Rules and pleadings
Admissions made by the defendant regarding executed tenancy and refund are to be considered in the disposition of the suit and counterclaim.
06
Ratio, limits and disposition
Ratio decidendi
The suit is dismissed for want of prosecution because the plaintiff failed to appear for hearing and did not comply with the court's directive to file witness statements. The defendant appeared and made admissions regarding the tenancy agreement and refund, but denied liability for the claimed damages. The court finds that the requirements of Order 9 rule 22 of the Civil Procedure Rules are met, warranting dismissal of the suit. The counterclaim remains to be determined, and directions are given for its further prosecution.
Obiter and limits
- The outcome of costs for the dismissed suit shall depend on the result of the counterclaim.
- If the counter-defendant fails to appear or file witness statements, the court may proceed ex parte on the counterclaim.
- Failure of the counterclaimant to appear with witnesses on the hearing date will result in dismissal of the counterclaim.
Court disposition
Suit dismissed for want of prosecution; counterclaim to proceed.
- Civil Suit No. 436 of 2018 is dismissed for want of prosecution.
- All witness statements for the counterclaim to be served and filed by 14th July, 2022.
- If the counter-defendant does not appear with witnesses and proof of service is provided, the court shall proceed ex parte on the counterclaim.
- If the counterclaimant fails to appear with witnesses on the hearing date, the counterclaim shall also be dismissed.
- Hearing date for the counterclaim set for 16th November, 2022 at 9:30 am.
- Costs of the dismissed suit shall depend on the outcome of the counterclaim.
Source and reliance status
HC: Land 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: Land Division (Uganda)
Judgment
THE REPI'BLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT XAMPALA
(LAND DIVISION)
crvll surT No. 436 ()F 2018
PLAINTIFF VOLCANO LIMITED....
VERSUS
10 BOARD OF GOVERNORS OLD IIAMPAIA SECONDARY SCHOOL............ DEFEI{DANT
RI'LING:
Before: Iadu .htstlce Alexand.rd. Nkonqe Ruodd.ad.
IJttl,oCla-t! .o!:\_
'Ihc plaintiff compal],y Volcano Ltd filcd this suit initially in thc Commcrcial Division: CIUII Sutt No.424 of
15 2OI8, seeking alnong others, a declaration that thc defendant brcachcd the tenancy agreement between them; and an order for special damages of Vgx 252,693,500/=; Ecncral damagcs for breach oI tenancy agreement; and interest at a commercial rate of 2570.
On 8rh June, 20 18, the matter was referred to thc [,and division and a file opened undcr C{ull Su{t I\lo. 436 oJ 2Ola. Ihe defendant filcd a WSD and countcrclaim on 6th July, 2018. The rcjoinder was made on 31i July, 2018.
At the ncxt hearing dated 17rh January, 2O2O, court dirccted that the JSM and Joint trial bundle be filed on grh Mar"ch, 2020. The rccord indicates that on 241h Fcbruary, 2O2O, lhe JSM was filed in court. The plaintiff trial bundle was filed on gth March, 2020 and thc dcfendant's triarl bundle on 5th March, 2020.
25 On 17ih lrebruaJy, 2022 in thc prcsencc of both counsel, couft made furthcr directions for the parties to file to fik witness statements by I May, 2022 ar.d, today's date was appointed as datc for the full trial.
The plaintiff company and its counsel howevcr not only failed to show up or offer any explaration as to why did not turn up in court, they also did not comply with thc order to lile witness statements. The failure to proceed today is attributed to the plaintiffs failure Lo comply with the directives given by court and turn up in court for today's hearing.
30 Ord.er 9 rule 22 of the CPR prouldes:
Where the deJeadant appears and. the plalntl,! does ^ot d.pped.r tDhen the sult is called on Jot he.rrlrtg, thc court shall ,nd.ke a.^ ordeLthdt the sult be dlsmlssed unless the deJend.dnt qdr,,:lts the cl.tl,?? ot pdr-t ol tt ln @hlch co,se the court shall pass d. decrec agd.lnst the dcJenda.^t upo^ such cdmlsslon,,,..,
5 The defendant in this case indeed admitted that an agrcement had bccn reached betwecn thc two parties, but denied liability of the amount spcnt /incurred on rcnovation and construction on the suit land as claimed by the plaintiff company.
They admitted in thc counterclaim that thc tenancy was exccuted but that it followed invited bids for hiring property comprised io LRv 746 follo 72 plot 79 l,lqmlrenbe Road but that when they were awatded the bill the plaintiffs acted fraudulently when they submitted invalid Tax Clcarancc Ccrtificatc.
Furthermore, that the works they carried out werc in contravcntion with thc laws and orders of KCCA. The defendants also admitted that they refunded to thc plaintiffa sur']. of Ugx.24o,ooo,ooo/=.
Thc above otdcr 9 tlr'le 22 of the CPR thereforc as citcd applies to the extent that the plaintiff failed to appear when the suit was next callcd for hearing and that thc admission for thc rcfund has already been executed. The rest of the issues raiscd by the defcndant arc to bc addrcsscd undcr the counterclaim.
In light of the abovc findings
- 7) The mdl^ sult ilo. 435 oj 2078 ts theretore dlsmlsscd tor want o! ptosecutlon. The court t tlll accotdlnglg ptoceed utlth the cou ter clalm. - 2) All toltness staterne^ts to be serrEd and fTkd l^ court bg 14.h .rulS, 2022. - 3) In the etE t houetEr thdt the corl ter deje^d.ont does not turn up 4rltft lts ra,ltncss€s dnd upon sulficle^t ptooJ oJ ser, lce of the @ltness statements to the counter' deJendant, thls court shall ,rrake a^ ord.er to proceed expatte, ln respect oI mdtters rdlsed. l^ the cou^tercldlm. - 4) I^ the etEnt of the cou terclalrna^t's fallure to htrn up uritrr its ur{tnesses o^ the d.ag fl-xed Jor hearl,!.g, the cou^terclal.n shall also be dlsm{ssed. - 30
S) Hearlng d.ate Jot the cou^tercld.lm: |Gh Norcmber,2022 dt 9.3O dt ,
6,, Costs o.f the dlsmlssed sult shdll d.tDd.lt the outcorne of the cou^tetclal.^.
35 Alexo.ndrd &dge
\*':d. L <sup>b</sup> I 0or\*n <sup>b</sup> }.,\L
U 6rh Jttne, <sup>2022</sup>
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