Adjournments And Prosecutions Of Suits In Uganda
Under Order 17 rule 1(Civil Procedure Rules), the court may as any stage of the suit if sufficient cause is shown, grant time to the parties, or to any of them, and may from time to time adjourn the hearing of the suit. An adjournment is not granted as of right but is only granted for sufficient cause. It involves the exercise of discretion by the court and this must be used judiciously.
An adjournment can be denied if it will occasion an injustice. If an application is vague and half hearted, the trial judge is justified in refusing the adjournment as was held in Birungi Wilbon V Akamba Ug Ltd. S.C.C.A. No. 12/94.
Court can adjourn for any reason which in its discretion is sufficient. If a new matter is raised at the trial which catches a party unaware, an adjournment if applied for should be granted to the party concerned to prepare his or her case in response to the matter. This was held in Ssalongo V Nantegolola 1976 H.C.B. 290.
In Abdala Babib v Harban Singh Rajput [1960] EA 325(U), when the plaintiff’s case came up for hearing his advocate applied for an adjournment on the ground that his client , who lives in Ruanda – Urundi , was for some unexpected reason absent. The defendant objected as his witness had come at a cost of 800/= from great distances, and because the plaintiff had been dilatory. It was held that no sufficient cause had been shown for granting an adjournment and accordingly the application was dismissed. Sheridan, J at. Page 326 said that:
“Under Order 15 rule 1 (equivalent to O.XVII R1) the court may if sufficient cause is shown grant an adjournment. The corresponding Indian provision is order 17 rule 1. In Chitaley and Rao’s Code of Civil Procedure (6th Edition) Vol.2, p.2631 instances are given of what has been held to be a sufficient cause. Here there is no suggestion that the plaintiff has been taken by surprise or was unaware of the hearing date. All that can be said on his behalf is that for some unexplained reason he has failed to communicate with his advocate. Generally his conduct has been dilatory and since the defendant has been granted leave to defend he has shown a lack of zeal in prosecuting his claim. Apart from the fact that it is probably not maintainable in the absence of a satisfactory explanation for the absence of a criminal prosecution it would be unfair to penalise the defendant further. No sufficient cause has been shown for granting this application. It is dismissed with the result that the suit is also dismissed with costs.”
The grant of an adjournment is a discretionary power which will not normally be interfered with on appeal. In the case of Mohindra v Mohindra (1953) 20 EACA 56, when the suit came up for hearing before the court of first instance, the appellant asked for an adjournment on the ground that he wished to engage an advocate. He intimated that he wished to call no other witnesses than himself. The trial judge refused the application without giving reasons. On appeal it was held that only on rarest occasions will the appeal court interfere with the discretion of the trial judge as to the adjournment of a trial. Quoting Corzens-Hardy, MR in the case of Sackville West v AG (128 LTJ 265), it was further held that the court of appeal will only interfere where the judge’s decision was such that justice did not result for the exercise of his discretion and he failed to see that such would be the effect of his decision.
Shah & Anor. V Osman Allu 14 EACA 45(K), it was held that the discretion of a court to grant or refuse an adjournment will not be lightly interfered with by an appellate court. An unjudicial or unreasonable exercise of discretion must be shown to have occurred.
An adjournment can be denied if it will occasion an injustice. If an application is vague and half hearted, the trial judge is justified in refusing the adjournment as was held in Birungi Wilbon V Akamba Ug Ltd. S.C.C.A. No. 12/94.
Court can adjourn for any reason which in its discretion is sufficient. If a new matter is raised at the trial which catches a party unaware, an adjournment if applied for should be granted to the party concerned to prepare his or her case in response to the matter. This was held in Ssalongo V Nantegolola 1976 H.C.B. 290.
In Abdala Babib v Harban Singh Rajput [1960] EA 325(U), when the plaintiff’s case came up for hearing his advocate applied for an adjournment on the ground that his client , who lives in Ruanda – Urundi , was for some unexpected reason absent. The defendant objected as his witness had come at a cost of 800/= from great distances, and because the plaintiff had been dilatory. It was held that no sufficient cause had been shown for granting an adjournment and accordingly the application was dismissed. Sheridan, J at. Page 326 said that:
“Under Order 15 rule 1 (equivalent to O.XVII R1) the court may if sufficient cause is shown grant an adjournment. The corresponding Indian provision is order 17 rule 1. In Chitaley and Rao’s Code of Civil Procedure (6th Edition) Vol.2, p.2631 instances are given of what has been held to be a sufficient cause. Here there is no suggestion that the plaintiff has been taken by surprise or was unaware of the hearing date. All that can be said on his behalf is that for some unexplained reason he has failed to communicate with his advocate. Generally his conduct has been dilatory and since the defendant has been granted leave to defend he has shown a lack of zeal in prosecuting his claim. Apart from the fact that it is probably not maintainable in the absence of a satisfactory explanation for the absence of a criminal prosecution it would be unfair to penalise the defendant further. No sufficient cause has been shown for granting this application. It is dismissed with the result that the suit is also dismissed with costs.”
The grant of an adjournment is a discretionary power which will not normally be interfered with on appeal. In the case of Mohindra v Mohindra (1953) 20 EACA 56, when the suit came up for hearing before the court of first instance, the appellant asked for an adjournment on the ground that he wished to engage an advocate. He intimated that he wished to call no other witnesses than himself. The trial judge refused the application without giving reasons. On appeal it was held that only on rarest occasions will the appeal court interfere with the discretion of the trial judge as to the adjournment of a trial. Quoting Corzens-Hardy, MR in the case of Sackville West v AG (128 LTJ 265), it was further held that the court of appeal will only interfere where the judge’s decision was such that justice did not result for the exercise of his discretion and he failed to see that such would be the effect of his decision.
Shah & Anor. V Osman Allu 14 EACA 45(K), it was held that the discretion of a court to grant or refuse an adjournment will not be lightly interfered with by an appellate court. An unjudicial or unreasonable exercise of discretion must be shown to have occurred.
Application For An Adjournment
It should be taken after due consideration is made in light of Article 28(1) of the constitution which enjoins the courts to determine civil rights in a speedy way. It should be noted however that an application for an adjournment must be made by counsel before court and adjournments by letter are not adopted under normal circumstances.
Similarly an application for adjournment cannot be made by telephone and in such circumstances, counsel applying should ask another counsel to hold his brief for purposes of an adjournment.
Under Order 17 rule 2(b), where a suit is adjourned generally, either party is at liberty to apply to court to have the case restored to the list. Where no such application is made to the court within twelve months of the last adjournment, the court may give notice to the parties to show cause why the suit should not be dismissed and if no sufficient cause is shown to the court, the suit shall thereby be dismissed (Order 17 rule 2).
The court is empowered under order 17 rule 3 to dispose of the suit in one of the modes provided for in order 9 where the parties or one of them fails to appear on the day on which the hearing of the suit was adjourned. The court can alternatively make such orders as it thinks fit.
Order 17 rule 4 provides that: “Where any party to a suit to whom time has been granted fails to produce his or her evidence, or to cause the attendance of his or her witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding that default, proceed to decide the suit immediately.”
A suit may be dismissed for want of prosecution under Order 17 rule 5 which provides that: “if the plaintiff does not within eight weeks from the delivery of any defence, or, where a counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution, and on the hearing of the application the court may order the suit to be dismissed accordingly, or may make such other order, and on such terms, as to the court may seem just.”
Under order 17 rule 6, in cases not otherwise provided for, the court may order a suit to be dismissed where no application has been made or no step has been taken by either party with a view to proceeding with the suit. In such a case, the plaintiff may, subject to the law of limitation bring a fresh suit.
In Nyiramakwene v G. Bitiro [1973] HCB 58, the file in this case was submitted to the High Court for directions on the issue of dismissal of the suit for want of prosecution. The suit was filed in the District Registry of the High Court at Mbarara on the 22nd April 1968. On 28th January 1969, the summons was served on Messrs. Mboijana &Co. Advocates who on the same day wrote to the plaintiff’s advocates stating that they had no instructions to act for the defendant. No affidavit of service was filed, nor was an attempt to obtain interlocutory judgment under Order 9 rule 6 in default of appearance and the matter stood without any further steps being taken by the plaintiff or her advocate with a view to proceeding with the suit. Consequently, the District Registrar, on 18th January, 1973 forwarded the file to the High Court for directions regarding the dismissal of the suit for want of prosecution.
It was held that Order 15(now 17) rule 6 enables the court of its own initiative without notice to either party , to dismiss the suit after what was prima facie an inordinate delay of two years. The court relied on the judgment of Russel, J in Pirbhai Lalji & Sons Ltd v Hassanali Devji (1969) EA 440.
Referring to a corresponding provision, the court in the case of Victory Construction Co. V Duggal [1962] EA 697 stated that only a step taken on the record, such as an interlocutory application, could amount to such step as envisaged by rule 6. In this case, the parties had agreed to refer the matter to an arbitrator which attempt had failed and the plaintiff contended that reference of the dispute to arbitration amounted in effect to a “step taken” under rule 6. The court rejected the view that reference to informal arbitration was a step taken with view to “proceeding with the suit”. Although the court in this case did not exercise that discretion, it pointed out that the purpose of rule 6 is to provide the court with administrative machinery whereby to disencumber itself of case records in which the parties appear to have lost interest .
It should be taken after due consideration is made in light of Article 28(1) of the constitution which enjoins the courts to determine civil rights in a speedy way. It should be noted however that an application for an adjournment must be made by counsel before court and adjournments by letter are not adopted under normal circumstances.
Similarly an application for adjournment cannot be made by telephone and in such circumstances, counsel applying should ask another counsel to hold his brief for purposes of an adjournment.
Under Order 17 rule 2(b), where a suit is adjourned generally, either party is at liberty to apply to court to have the case restored to the list. Where no such application is made to the court within twelve months of the last adjournment, the court may give notice to the parties to show cause why the suit should not be dismissed and if no sufficient cause is shown to the court, the suit shall thereby be dismissed (Order 17 rule 2).
The court is empowered under order 17 rule 3 to dispose of the suit in one of the modes provided for in order 9 where the parties or one of them fails to appear on the day on which the hearing of the suit was adjourned. The court can alternatively make such orders as it thinks fit.
Order 17 rule 4 provides that: “Where any party to a suit to whom time has been granted fails to produce his or her evidence, or to cause the attendance of his or her witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding that default, proceed to decide the suit immediately.”
A suit may be dismissed for want of prosecution under Order 17 rule 5 which provides that: “if the plaintiff does not within eight weeks from the delivery of any defence, or, where a counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution, and on the hearing of the application the court may order the suit to be dismissed accordingly, or may make such other order, and on such terms, as to the court may seem just.”
Under order 17 rule 6, in cases not otherwise provided for, the court may order a suit to be dismissed where no application has been made or no step has been taken by either party with a view to proceeding with the suit. In such a case, the plaintiff may, subject to the law of limitation bring a fresh suit.
In Nyiramakwene v G. Bitiro [1973] HCB 58, the file in this case was submitted to the High Court for directions on the issue of dismissal of the suit for want of prosecution. The suit was filed in the District Registry of the High Court at Mbarara on the 22nd April 1968. On 28th January 1969, the summons was served on Messrs. Mboijana &Co. Advocates who on the same day wrote to the plaintiff’s advocates stating that they had no instructions to act for the defendant. No affidavit of service was filed, nor was an attempt to obtain interlocutory judgment under Order 9 rule 6 in default of appearance and the matter stood without any further steps being taken by the plaintiff or her advocate with a view to proceeding with the suit. Consequently, the District Registrar, on 18th January, 1973 forwarded the file to the High Court for directions regarding the dismissal of the suit for want of prosecution.
It was held that Order 15(now 17) rule 6 enables the court of its own initiative without notice to either party , to dismiss the suit after what was prima facie an inordinate delay of two years. The court relied on the judgment of Russel, J in Pirbhai Lalji & Sons Ltd v Hassanali Devji (1969) EA 440.
Referring to a corresponding provision, the court in the case of Victory Construction Co. V Duggal [1962] EA 697 stated that only a step taken on the record, such as an interlocutory application, could amount to such step as envisaged by rule 6. In this case, the parties had agreed to refer the matter to an arbitrator which attempt had failed and the plaintiff contended that reference of the dispute to arbitration amounted in effect to a “step taken” under rule 6. The court rejected the view that reference to informal arbitration was a step taken with view to “proceeding with the suit”. Although the court in this case did not exercise that discretion, it pointed out that the purpose of rule 6 is to provide the court with administrative machinery whereby to disencumber itself of case records in which the parties appear to have lost interest .
Tags : Civil Procedure Criminal Law