NON-APPEARANCE OF PARTIES TO A SUIT
In Agnes Nanfuka Kalyango & Others vs. Attorney General & Masaka District Administration
C.A.C.A. No 64 0f 2000, the Court of Appeal noted that the three instances in which court would
invoke its inherent powers to dismiss a suit for want of prosecution, are where
1. there was inordinate delay;
2. the delay was inexcusable, even if when credible excuse was made out;
3. the defendant is likely to be seriously prejudiced by the delay; and the balance of justice
demands it.
It was further held in Sekyaya Sebugulu vs. Daniel Katunda [1979] HCB 46, that once an action
has been dismissed for want of prosecution, the plaintiff’s only remedy is either an appeal
against the order of dismissal or commencement of a fresh action subject to the law of limitation.
From the submissions of both counsel, as is discernible from the case authorities they cited, it
would appear clearly that they were laboring under a mistake that this is an application for
setting aside an ex parte dismissal order passed under Order 9 Rule 22 CPR which provides as
follows;
“Where the defendant appears, and the plaintiff does not appear, when the suit is called on
for hearing, the court shall make an order that the suit be dismissed, unless the defendant
admits the claim, or part of it, in which case the court shall pass a decree against the
defendant upon such admission, and, where part only of the claim has been admitted, shall
dismiss the suit so far as it relates to the remainder.”
Where a suit is dismissed ex parte under the above provision, the remedy for the Applicant
would lay under Rule 27 thereof, as follows,
“In any case in which a decree is passed ex parte against a defendant, he or she may apply to
the court by which the decree was passed for an order to set it aside; and if he or she satisfies
the court that the summons was not duly served, or that he or she was prevented by any
sufficient cause from appearing when the suit was called on for hearing, the court shall make
an order setting aside the decree as against him or her upon such terms as to costs, payment
into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
except that where the decree is of such a nature that it cannot be set aside as against such
defendant only, it may be set aside as against all or any of the other defendants
also.” [emphasis added].
Clearly, under the above provisions, the Applicant seeking to set aside an ex parte order is
always necessarily a defendant. The case will have proceeded ex parte for the hearing against
such a defendant. The law cited thus requires that such an Applicant/defendant demonstrates
sufficient cause for his/her non-appearance in court, when the suit was called for hearing before
the ex parte order/decree is set aside and he/she is allowed to defend himself/herself.
In the present case, however, it is the Applicant/plaintiff which filed the suit against the
Respondents/defendants, and failed to prosecute its case, and the defendants/Respondents
applied for the dismissal of the suit for want of prosecution. Therefore, the law applicable and
the effect in both instances is quite different. There is no provision under the law that requires the
plaintiff/Applicant, whose suit has been dismissed for want of prosecution, to demonstrate good
cause why he/she never attended court when his /her case was called for hearing.
CONTEMPT OF COURT PROCEEDINGS.
Section 98 of the Civil Procedure Act, Cap 71 gives the High Court inherent powers to make
decisions that are pertinent to the ends of justice
Uganda Super League v Attorney General Constitutional Application No.73 of
2013 wherein Justice Kiryabwire citing the Black’s law Dictionary 7th Edition that defines
Contempt of courts as;
“Conduct that defies the Authority or dignity of court.” He went on further to cite with Approval
Halsbury’s laws of England [ Volume 9, 4th Edition] wherein Contempt of court was classified in
two categories; Criminal contempt which is committed by words or acts that impede
Administration of justice and Civil Contempt which arises when there is disobedience to
judgment, orders or other court process and involves private jury.”
Any course of conduct which abuses and makes a mockery of the judicial process and which thus
extends its pernicious influence beyond the parties to the action and affects the interest of the
public in the administration of justice, is contempt of court. The rationale is about preserving and
safeguarding the rule of law. A party who walks through the justice door with a court order in
his hands must be assured that the order will be obeyed by those to whom it is directed.
Every judicial officer presiding over court proceedings has the power to punish for contempt.
However, for contempt that is not committed in the face of the court, this kind of contempt is sui
generis. It is usually initiated by a litigant who by motion brings to the attention of court,
conduct believed to be in contempt of court. All contempt proceedings are matters between the
court and the alleged contemnor.
Any person who moves the machinery of the court for contempt only brings to the notice of the
court certain facts constituting contempt of court. After furnishing such information he or she
may still assist the court, but it must always be borne in mind that in a contempt proceeding there
are only two parties, namely, the court and the contemnor.
The ingredients incidental hereto:-
1. Existence of a lawful order.
2. Potential contemnor’s knowledge of the order.
3. Potential contemnor’s failure to comply, that is, disobedience of the order.
Stanbic Bank (u) Ltd Vs. Commission General Uganda Revenue Authority and that
Court of law never acts in vain and as such, issues touching on contempt takes
precedence over any other case of invocation of the Jurisdiction of Court. Disregard of an
order of the court is a matter of sufficient gravity whatever the order maybe.
Per Prof. Frederick Sempebwa and others Vs. A.G Civil Application No.5 of 2019, The test
for when disobedience of a civil order constitutes contempt has come to be stated as
whether the breach was committed deliberately and mala fide. A deliberate disregard is
not enough, since the non-complier may genuinely, albeit mistakenly, believe him or
herself entitled to act in the way claimed to constitute the contempt. In such a case good
faith avoids the infraction even a refusal to comply that is objectively unreasonable may
be bonafide"....
Civil contempt is punishable by way of committal to civil prison or by way of
Sequestration. It can also be punishable by way of fine or an injunction against the
contemnor. See Ngabirano v Col Kaka Bagyenda
