DOCTRINE OF INORDINATE DELAY & THE DISCRETION OF COURT

Inordinate Delay causing Dismissal of cases; A legal opinion.

  

In the criminal justice system, every accused has a right to due process and to speedy disposition of cases. Parties to a suit are supposed to act within all means to ensure that litigation is not elongated to a lifetime project as this comes with a strain of expenses to both parties. The justice process today is greatly hindered by non-co-operative, negligent and dilatory litigants, which oftentimes prejudices the interests of a litigant not in default.

 “It is trite law that justice is both for the Plaintiff and Defendant.” It is good practice that any litigant should from the start of litigation, be mindful of the other party’s ardent need for a remedy. In Ketti Nakanja v. Yafesi Wamala & Anor HCMA No. 001/2019 court stated that it is unfair for the Plaintiff to file a suit and take 14 years in Court without conclusion of the suit.”

Inordinate delay to prosecute matters has proved hazardous to the justice sought by litigants and also contributed to the song of “backlog” in the Ugandan justice system. Inordinate delay has been defined to mean unusually or disproportionately large or excessive. (Abel Balemesa v. Yesero Mugenyi HCMA NO. 126 OF 2019)

 Inordinate delay in the resolution and termination of a preliminary investigation will result in the dismissal of the case against the accused. Delay, however, is not determined through mere mathematical reckoning but through the examination of the facts and circumstances surrounding each case. Courts should appraise a reasonable period from the point of view of how much time a competent and independent public officer would need in relation to the complexity of a given case.

In criminal matters, the timely invocation of the accused's constitutional rights must also be examined on a case-to-case basis. Nonetheless, the accused must invoke his or her constitutional rights in a timely manner. The failure to do so could be considered by the courts as a waiver of right.

 Arguably, the concept of inordinate delay was introduced in Tatad v. Sandiganbayan 242 Phil. 563,573 (1988) [Per J. Yap, En Banc].,  where Court ruled that the inordinate delay in the conclusion of preliminary investigation and subsequent filing of information will result to the violation of the right to speedy disposition of cases and right to due process. The Court, however, emphasized that "a mere mathematical reckoning of the time involved is not sufficient" to rule that there was inordinate delay.”

In civil matters, delay per se is not the overriding factor when considering whether to terminate a matter for want of prosecution. The court has to look at the justice of the case as well.  In Pan African Paper Mills Limited  V. Silvester  Nyarango Obwocha  Civil Appeal no. 118 of 2002 Achode J observed that :

Courts should strive to sustain rather than dismiss suit especially where justice would still be done and a fair trial had, despite the delay.

 “A litigant’s right to a fair hearing in the determination of Civil Rights and obligations is enshrined in Article 28 of the Constitution and should not be defeated on the ground of his or her lawyer’s mistakes” as was held by the supreme court in Captain Philip Ongom Vs Catherine Nyero Owota SCCA No. 14 Of 2001.

On the other hand, it is also true that a litigant’s right to a fair hearing in the determination of Civil Rights and obligations as enshrined in Article 28 of the Constitution should not be delayed on the ground of another party’s disinterest in litigation. This is because justice delayed is justice denied, yet the respondent’s time and finances are continually expended with the lag of litigation at the other party’s dormancy.  Yet more so, some litigants make it a habit to delay their own case, which speaks to their disinterest in the matter. Such dilatory conduct attracts costs in favor of the party who has suffered inconvenience.

In Fred Byamukama & Anor v. Micheal Katungye HCMA No. 773/2022, the learned justice held that the Applicants’ conduct was only dilatory and the application to re-instate the dismissed suit was without merit, in addition to ordering that the applicants meet the Respondent’s costs of the application.

In opposing an application to set aside a dismissal; Where a litigant is of the view that a co-litigant has acted dilatory in filing an application and or in the prosecution of a given matter against him or her, it is not enough for them to submit that the applicant is with inordinate delay. One must prove that the inordinate delay has or will occasion to him a serious injustice. Put otherwise, that the balance of convenience is in rejecting the other’s application.

If it was a matter dismissed for want of prosecution and also in an application to have a suit dismissed for want of prosecution;

“He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favor and dismiss the action for want of prosecution” (Ivita vs. Kyumbu (1984) KLR 441 per Justice Chesoni) or reject an application to set aside a dismissal. (emphasis mine)

 Note that when a case is dismissed for want of prosecution, the affected party can only appeal or file a fresh suit (Sekyaya Sebugulu vs. Daniel Katunda)

[1979] HCB 46,) unlike where it is dismissed for non-attendance of a party when the matter is called (under Order 9), in which case one can apply to set aside the dismissal under order 9 rule 12, rule 23, rule 27 among other provisions as provided under the Civil Procedure Rules S.1.71-1.

Conclusively therefore, much as inordinate delay occasions steals the justice available to a litigant, owing to the conduct of a co-litigant being unserious in prosecuting a matter, the courts have adopted the view of sustaining rather than dismiss the suit especially where justice would still be done and a fair trial had, despite the delay. This is all because justice is for both the defendant and the plaintiff.

 

AHIMBISIBWE INNOCENT BENJAMIN

(Entertainment Lawyer)