Court name
Commercial Court of Uganda
Judgment date
9 December 2010

Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application-2010/333) [2010] UGCommC 41 (09 December 2010);

Cite this case
[2010] UGCommC 41

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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
[COMMERCIAL DIVISION]
MISC. APPLICATION NO 333 OF 2010
(Arising from Civil suit No. 105 of 2009]
STOP AND SEE [U] LTD]………………………….. APPLICANT/DEFENDANT
VERSUS
TROPICAL AFRICA BANK LTD] …………………... RESPONDENT/PLAINTIFF
BEFORE HON. JUSTICE CHRISTOPHER MADRAMA
RULING
The plaintiff filed a suit on the 30th of March, 2009 claiming among other things for recovery of
United States dollars 36,000 being rental refund arising out of breach of contract, general
damages, interests and costs of the suit. The defendant’s written statement of defence was filed
on the court record on the 20th of April, 2009. Thereafter, the defendant/applicant filed
Miscellaneous Application No. 333 of 2010 on the 28th of May, 2010. The application is for a
temporary injunction to restrain the Respondent/plaintiff from further locking of the
Applicant’s/Defendant’s suit premises until the final determination of High Court Civil Suit No.
105 of 2009 and in the alternative the Applicant be allowed to re enter the suit premises.
According to the affidavit of Natukunda Andrew sworn on the 18th of June, 2010 annexure B
thereof the application was served on the Respondents/Plaintiffs lawyers on the 17th of June,
2010. The Respondents filed an affidavit in reply on the 10th of November, 2010. The affidavit
was sworn on the 8th of November, 2010 by one Fred Muwema. When the matter came for
hearing of the application for a temporary injunction, counsel for the Applicant raised a
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preliminary objection to the affidavit in reply of the Respondent and requested the court to strike
it off with costs. Counsel Moses Tugume appeared for the Applicant while Counsel Kiggundu
Mugerwa appeared for the Respondent.
Counsel for the Applicant’s objection was firstly that Affidavit was sworn by an advocate of the
firm representing the Respondents. That the affidavit touches on controversial facts. In particular
the Applicants Counsel referred to paragraphs 3 and 4. He contended that the Respondents
affidavit in reply was filed out of time in contravention of order 12 rule 3 sub rule 2 of the Civil
Procedure Rules which rule requires that all replies to interlocutory applications be made within
15 days from date of service. The application was served on the Respondent on the 17th of June
2010. The reply thereto was filed on the 10th of November 2010 which is about 5 months later.
On inquiry by court as to why Counsel for the Applicant filed a rejoinder to the Respondent’s
affidavit in reply, he submitted that the rejoinder was to enable him to raise the objections. He
prayed that the affidavit is struck out with costs.
Counsel Mugerwa opposed the preliminary objection and contended that, there is no law that
bars an Advocate from swearing an affidavit in reply for as long as it is not the same advocate
going to prosecute the matter. Paragraph 1 of the said affidavit clearly avers that the deponent is
swearing the affidavit in his capacity as an advocate practicing with the law firm which has
instructions to prosecute this matter. As far as paragraphs 3 and 4 of the affidavit are concerned,
they are not contentious because they are based on correspondences from the Respondent and the
Applicant which correspondences speak for themselves. Counsel for the Respondent submitted
that the impugned affidavit does not contravene the Advocates Act and Applicant would not
suffer any prejudice by reason of Mr. Muwema deposing to this affidavit.
On the issue of the time limit for filing an affidavit in reply, Counsel for the Respondent
submitted that it is a cardinal principle of law that rules are hand maidens of justice. The
objection does not go to the root of the substantive dispute. That being the case, the Applicant is
not bound to suffer any injustice or prejudice for failure to file within the time lines set out in the
Civil Procedure Rules. He submitted that this matter came before court several times and the last
time it was mentioned, counsel for the Applicant applied for an adjournment to file a reply. This
was on the 17th of November 2010 and the hearing adjourned to the 8th of December 2010. Any
objections to the affidavit in reply should have been raised then. Having failed to raise it, coupled
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with applying for an adjournment with a view to filing an affidavit in rejoinder, Counsel is
estopped from making this objection. Counsel for the Respondent further submitted that the
affidavit in rejoinder was filed a day before this matter came for hearing and served on the
Respondent a day before which is more than 15 days out of time and that the Applicants Counsel
is equally guilty of failure to observe order 12 (3) (2) of the Civil Procedure Rules.
Counsel Mugerwa further submitted that under article 126 (b) this court is enjoined to deliver
justice without undue regard to technicalities. The time lines referred to were mere technicalities
which do not go to the root of the dispute. He asked the court to overrule the applicant’s
objection.
In rejoinder Counsel Moses Tugume submitted that the rule which forbid advocates to swear
affidavits in contentious matters extends to all advocates in the firm handling the matter. He
undertook to furnish court with an authority to this effect. He further submitted that the issue of
who is in possession and as to whether the Applicant took possession and when is a contentious
matter. Concerning Annexure “B” to the affidavit in reply, it does not address the issue of taking
possession of the premises. The affidavit in rejoinder is not affected by order 12 rules 3 (2) of the
Civil Procedure Rules. That rule relates to the application and reply thereto and does not address
affidavits in rejoinder. The affidavit in rejoinder was in any case filed with leave of court.
Counsel submitted that he had informed court that he would reply by the 26th of November 2010
and the Respondent conceded. Counting from the 26th to the 7th of December are 11 days and
not 15. He concluded that the objections raised are not technicalities but are on illegalities.
Article 126 (2) (e) of the Constitution was not meant to erase the Civil Procedure Rules. It is not
a substitute for any of the rules. Counsel for the Respondent had an option to apply for
enlargement of time under order 51 rules 7 to file a reply out of time but he did not do that. He
reiterated his prayers for the affidavit to be struck off the record.
I have carefully considered the submissions of both counsel of the parties. The question of
timelines for the filing of interlocutory applications has not yet been exhaustively considered.
The question of whether the affidavit in reply was filed within the prescribed time shall be
resolved first this is because an answer to the issue will determine whether the second issue on
the validity or competence of the affidavit should be considered or not. Counsel for the applicant
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relied on order 12 rules 3 of the Civil Procedure Rules. Order 12 rule 3 deals with the timelines
for filing of interlocutory applications, service thereof and the handling of interlocutory
applications. It provides as follows:
3. Interlocutory applications.
(1) All remaining interlocutory applications shall be filed within twenty-one days from
the date of completion of the alternative dispute resolution and where there has been no
alternative dispute resolution, within fifteen days after the completion of the scheduling
conference; that date shall be referred to as the cutoff date.
(2) Service of an interlocutory application to the opposite party shall be made within
fifteen days from the filing of the application, and a reply to the application by the
opposite party shall be filed within fifteen days from the date of service of the application
and be served on the applicant within fifteen days from the date of filing of the reply.
(3) An interlocutory application shall be fixed for hearing within twenty-one days from
the date of service of the reply on the applicant.
(4) All interlocutory applications shall be heard and finalized within forty-five days from
the date fixed for the hearing of the application unless the court, for sufficient reason,
extends the time.
The rule should not be read in isolation. Sub rule 2 follows from sub rule 1 of rule 3 order 12 of
the Civil Procedure Rules and deals with all remaining interlocutory applications from the date
of completion of the alternative dispute resolution, or where there has been no alternative dispute
resolution from the completion of the scheduling conference. This case was referred for
mediation on the 27th of May 2009. On the 27th of April, 2010 the matter came for scheduling
before the Hon. Justice Stella Arach judge of the High Court as she then was whereupon she
referred the parties to the mandatory court assisted mediation.
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The strict interpretation of the rule would imply that time has to be reckoned from the matters
stated in rule 3 sub rule 1. This means that time runs from the date of completion of the
alternative dispute resolution or to run from the completion of the scheduling conference. In this
case there has neither been a completion of the alternative dispute resolution which is the
mandatory mediation nor has there been a scheduling conference. Rule 3 sub rule 1 is the
foundation of sub rule 2 which learned counsel for the applicant relied upon. This is the problem
of interpretation. On the one hand if you rely on sub rule 1 to interpret sub rule 2 you must come
to the conclusion that the application must be filed after the occurrence of the matters stated
therein. What if the application is filed irrespective of whether the matters stated in sub rule 1
have occurred? Sub rule 1 gives 21 days within which such interlocutory applications have to be
filed from the occurrence of the matters stated therein. This application was filed before the
occurrence or consummation or completion of alternative dispute resolution or the scheduling
conference. Consequently, one may say that the application does not fall within rules 3 of order
12 of the civil procedure rules.
On the other hand, one can contend that order 12 rule 3 sub rule 2 is of general application and
does not only apply to applications made within 21 days of the completion of alternative dispute
resolution, or scheduling conference. Therefore if any application is filed before the completion
of alternative dispute resolution or scheduling conference, sub rule 2 which prescribes 15 days
for the filing of the reply would apply. The current application was filed about a year after the
filing of the suit. It was filed outside the timelines prescribed by order xii. The Civil Procedure
Rules generally prescribes at most three months for the pleadings to be completed and the case to
be scheduled or sent for alternative dispute resolution.
Time lines:
Generally time is reckoned from the time of filing of a plaint and the issuance of summons by the
court. A summons should be served on a defendant within 21 days from issuance.
Where there is no objection to jurisdiction under order 9 rule 3 of the Civil Procedure Rules,
order 8 rule 1 (2) requires a defendant to file his or her defence within 15 days from the date of
issue of summons. The defendant may file a counterclaim with his or her defence and this affects
the timelines for the filing of pleadings.
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Where no counterclaim is filed together with the defence to the plaint, order 8 rule 18 (1) of the
CPR provides that a plaintiff is entitled to file a reply to the defence within fifteen days after the
defence or last of the defenses has been delivered to him or her, unless time is extended.
Thereafter, no pleading subsequent to the reply of the plaintiff to the defence shall be filed
without leave of court. This means that from the time the summons are served on the defendant,
there are a maximum of 15 days for filing a defence. The defence is to be served or filed within
15 days. (This gives 30 days from service of plaint on defence.) Thereafter, the plaintiff shall file
a reply. The time scales are as follows:
• From issuance of summons 21 days to serve the defendant
• From service of summons on the defendant there are 15 days to file a written statement of
defence.
• The plaintiff shall be served with the defence within 15 days of filing thereof. After the
plaintiffs reply, the pleadings are deemed closed unless leave of court is sought.
• From the filing of a written statement of defence and delivery thereof to the plaintiff, the
plaintiff shall be entitled to file a reply thereto within 15 days from that time.
• This gives us a maximum total of 81 days to close the pleadings.
Where a counterclaim has been filed the time lines are the same as the rules applicable to the
filing of defence under Order 8 rule 18 (3). Therefore a defence or reply to the counter claim
has to be filed within 15 days from the service of the defence and counterclaim. Specifically
order 8 rule 11 (1) provides that: “(1) Any person named in a defence as a party to a
counterclaim thereby made may, unless some other or further order is made by the court, deliver
a reply within fifteen days after service upon him or her of the counterclaim.”
The rule also caters for cases where the counterclaimant names some other person other than or
in addition to the plaintiff. Where a defendant to a counterclaim is not the plaintiff, such a
defendant shall be entitled to a summons and will file a defence to the counterclaim within 15
days. A counterclaim has to be served on the defendant within fifteen days after its filing under
order 8 rules 11 (2). No other reply shall subject to the reply or rejoinder to the defence or
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counterclaim be filed without leave of court. An application for leave shall be filed within 15
days from the date of the last service. (Order 8 rule 11 (3).
Last but not least under order 8 rule 18 (4) where the last rejoinder or reply has been made or
where there is a default in making it and no leave to file out of time, a pleading has been made,
the pleadings shall be deemed to be closed. Furthermore the pleadings are deemed closed after
seven days from the filing of the last reply or from the time ordered by court for the filing of a
further reply. We can thereof reckon approximately 90 days from the time of summons for the
pleadings to be closed.
Where pleadings have been closed or are deemed to have been closed the case may proceed as
provided for under order 9 of the Civil Procedure Rules … However order 9 comes into
operation 15 days from the time specified which runs from the service of the plaint on the
defence in cause of default for filing a defence.
Where the last of the defenses have been filed, and there are no default or ex parte proceedings
under order 9 the suit may be set down for hearing subject to order 12 which deals with
scheduling or pretrial matters.
“11. Setting down suit for hearing.
(1) At any time after the defence or, in a suit in which there is more than one defendant, the
last of the defenses has been filed; the plaintiff may, upon giving notice to the defendant
or defendants, as the case may be, set down the suit for hearing. (Is this rule not
redundant? The court may now fix the case for scheduling as part of case the
management scheme)
(2) Where the time allowed for filing a defence or, in a suit in which there is more than one
defendant, the time allowed for filing the last of the defenses has expired and the
defendant or defendants, as the case may be, has or have failed to file his or her or their
defenses, the plaintiff may set down the suit for hearing ex parte.”
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Under order 10 (1) the defendant or plaintiff may apply to court within twenty one days from the
date of the last reply or rejoinder for leave to deliver interrogatories and discoveries in writing
for the examination of the opposite parties. Interrogatories shall be answered by affidavit within
ten days. Any application to strike out interrogatories on the ground of being scandalous or
irrelevant, or not exhibited bona fide for the purpose of the suit or lack of materiality to the suit
may be made within seven days after service of the interrogatories. Under rule 11 of order 10,
where a person omits to answer or answers insufficiently, the party interrogating may apply to
court to make him answer or for a further answer by affidavit or by viva voce examination.
A party may also apply for discovery and inspection of documents. A party may give notice to
another to produce for inspection any documents referred to in his or her pleadings. The party on
whom notice is given shall deliver within 10 days give notice specifying the time and place for
the inspection excepting those that the party objects to produce.
Assuming all these preliminary matters are complied with, the time taken cannot exceed six (6)
months! Thereafter we assume order 12 comes into operation. It is however my finding that
order 12 rule 3 sub rule 2 is meant to give the timelines for all interlocutory applications that are
envisaged after the completion of the scheduling conference or alternative dispute resolution.
There are other kinds of interlocutory applications which are catered for in the preceding rules to
rule 3 of order 12 that I have outlined above. I do not need to outline exhaustively the kinds of
interlocutory applications envisaged in rule one and two of order 12. I may say that they deal
with inter alia applications that do with interrogatories, discovery and alternative dispute
resolution. The rest of interlocutory applications are covered by order 12 rules 3. The logical
conclusion is that this application falls outside the provisions of order 12 itself. (It should be
noted however that an application can be filed anytime depending on the circumstances of the
case and of the parties) Secondly, the rules are meant to give the parties timelines within which
to file and complete their pleadings. These pleadings follow the same pattern as that of a plaint
and a written statement of defence. It follows that the same time lines would apply to
interlocutory applications. A reply or defence to an application has to be filed within 15 days.
Failure to file within 15 days would put a defence or affidavit in reply out of the time prescribed
by the rules. Once the party is out of time, he or she needs to seek the leave of court to file the
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defence or affidavit in reply outside the prescribed time. The practice of legal practitioners is to
file an affidavit in reply at pleasure. This has to be discouraged. Order 12 rule 3 should guide
advocates on the time lines for pleadings in interlocutory applications.
In this case the Applicant’s chamber summons was filed on the 28th of May 2010 and court fees
were paid the same day. But the notes indicate that the Registrar issued the chamber summons
under the seal of the court on the 15th of June 2010. It one complies with order 12 rule 3 (2)
the application has to be served within 15 days from the date of filing. That means that strict
interpretation of the rule would mean that even the chambers summons were served on the 17th
of June 2010 outside of 15 days from the time of filing of the application. However it is noted
that the fault in this case, is that of the court. The Registrar only signed the document on the 15th
of June 2010 about 18 days after filing. I must say that the Honorable Registrar should have time
to issue all summonses and notices which have been filed on the day they are filed. The rule
presupposes that summonses and notices are issued on the day they are filed. This must be the
practice to be adopted otherwise the rules may be rendered inoperative. It would enable the
application of the rules without injustice to the parties. As it were the applicant cannot be faulted
for having served on the 17th of June 2010 more than 15 days from the date of filing on the 15th
of May 2010. Service was made on the Respondent within 2 days from when they received the
chamber summons for service on the Respondent.
I have not decided the question of whether an interlocutory application which is filed about a
year after the filing of the suit and therefore outside the timelines prescribed by order 12 of the
Civil Procedure Rules would be incompetent. There may be situations at any time when the suit
is still pending in court warranting the filing and handling of interlocutory applications for the
appropriate remedies. I refrain from making further comments on this. Consequently it is my
finding that affidavit in reply was filed out of time by about 5 months as submitted by the
Applicants Counsel.
Next I must decide the question of estoppels or waiver. Is the applicant barred by the doctrine of
estoppels from objecting to the affidavit in reply? Counsel for the respondent submitted that
having replied to it, and having had a previous occasion to attack the affidavit in reply, the
applicant is estopped from raising the question of the reply having been filed out of time. I find
this argument troubling, because the provisions for filing an affidavit in reply within 15 days are
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statutory. Can estoppels be raised where there are express statutory provisions? According to
Halsbury’s Laws of England 4th Edition reissue (1987 – 1997) volume 17 (1) page 290 paragraph
591 Estoppels cannot be set up to override or contravene the substantive law. The House of
Lords in Maritime Electric Co Ltd v General Dairies Ltd [1937] 1 All ER 748 at 753 express
this view:
“In the view of their Lordships, the answer to this question, in the case of such a statute
as is now under consideration, must be in the negative. The sections of the Public
Utilities Act which are here in question are sections enacted for the benefit of a section of
the public, that is, on grounds of public policy, in a general sense. In such a case—and
their Lordships do not propose to express any opinion as to statutes which are not within
this category—where, as here, the statute imposes a duty of a positive kind, not avoidable
by the performance of any formality for the doing of the very act which the plaintiff seeks
to do, it is not open to the defendant to set up an estoppels to prevent it. This conclusion
must follow from the circumstance that an estoppels is only a rule of evidence which, in
certain special circumstances can be invoked by a party to an action; it cannot, therefore,
avail, in such a case, to release the plaintiff from an obligation to obey such a statute, nor
can it enable the defendant to escape from a statutory obligation of such a kind on his
part. It is immaterial whether the obligation is onerous or otherwise to the party suing.
The duty of each party is to obey the law. To hold, as the Supreme Court has done, that in
such a case, estoppels is not precluded, since, if it is admitted, the statute is not evaded,
appears to their Lordships, with respect, to approach the problem from the wrong
direction; the court should first of all determine the nature of the obligation imposed by
the statute, and then consider whether the admission of an estoppels would nullify the
statutory provision. ...”
The Respondent raises estoppels by conduct normally stated as estoppels either by silence,
omission or acquiescence. His contention is that the applicant ought to have raised the objection
earlier. According to Phipson on Evidence Fifteenth Edition page 100, where the conduct
consists of omission, before an estoppels can be set up, there must be a duty to the person misled
by the conduct. It cannot be said that the Applicants Counsel had a duty to the Respondent to
raise the objection earlier. The Applicant filed the application and it was upon the Respondent to
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reply. The Respondent was not misled to do anything. Moreover the objection was raised at the
earliest opportunity when the matter came for hearing. In any case rules of procedure are not
technicalities.
Article 126 (2) (e) of the Constitution enjoins Courts to deliver substantive justice without undue
regard to technicalities. The question of what amounts to “undue regard to technicalities” is to be
interpreted by court. The rules and timelines for filing defences are not technicalities. They
regulate the conduct of the courts business and ensure not only fairness but an orderly manner of
disposal of cases. The Supreme Court had occasion to interpret article 126 (2) (e) of the
Constitution in the case of UTEX INDUSTRIES VS ATTORNEY GENERAL S.C.C.A. NO.
52 OF 1995. In that case, there was no certificate indicating the time that had been taken to
prepare the record. The respondent had not applied for leave to extend time since the appeal had
been filed after the stipulated 60 days. The Supreme Court on article 126 (2) of the Constitution
held that “the article seems to be a reflection of the saying that rules of procedure are
handmaidens of justice- meaning that they should be applied with due regard to the
circumstances of each case. We cannot see how in this case article 126 (2) (e) or the Mabosi
case can assist the respondent who sat on his rights since 18/8/1995 without seeking leave to
appeal out of time The Supreme Court followed the said decision in the case of Kasirye
Byaruhanga & Co. Advocates vs. U.D.B. S.C.C.A. NO. 2 of 1997. The court said: We adopt
the same reasoning here and say that a litigant who relies on the provisions of article 126 (2) (e)
must satisfy the court that in the circumstances of the particular case before the court it was not
desirable to have undue regard to a relevant technicality. Article 126 (2) (e) is not a magical
wand in the hands of defaulting litigants.
In this case the Applicant’s Counsel has not even applied for leave to enlarge the time within
which to file the reply. I agree that in the absence of an application to enlarge time, the affidavit
in reply is incompetent having been filed out of time.
The general rule is that where the defendant does not file a defence or file it within time, the
court will proceed in default of the defence. In the case of Attorney General versus Sengendo
[1972] 1 EA 356 (CAK) The Attorney General did not filed a defence within 30 days and when
the case came for hearing the Advocate for the AG was requested to apply for extension of time
to file his written statement of defence but he declined. At the hearing the Attorney general’s
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representative wanted to cross examine the plaintiffs witnesses but the court declined to grant
him leave to participate in the proceedings holding that it had no discretion to grant leave. The
trial judge relied on the principle that a defendant who fails to file a defence puts himself out of
court and cannot be heard. On appeal to the Court of Appeal at Kampala, it was held that the trial
judge had discretion whether to permit the AGs representative to participate in the proceedings.
At page 360
“On the matter coming for hearing the trial judge refused to allow the advocate appearing
for the Attorney-General to cross-examine the witness or take part in the trial. He relied
on the judgment of this Court in Kanji Devji v. Jinabhai (1934), 1 E.A.C.A. 87. O. 9, r.
10, is silent on the procedure to be followed when the appellant fails to file a defence.
The procedure is different when a defendant has failed to enter an appearance, in that
case the action is set down for hearing ex parte, no notice is served on the defendant but
provision is made by r. 18 of that Order that if a defendant does appear and desires to
take part in proceedings then the court is given a wide discretion and has power to allow
the defendant to take part in the proceedings even though this would no doubt be on
terms to see that the appellant does not suffer through the defendant’s default. The court
must clearly have discretion to act under r. 10. The whole basis of our civil procedure
laws is to see that justice is done between the parties, and the courts will be slow to
prevent a defendant from making his defence even though he is in default, if the plaintiff
can be reasonably compensated for any loss he suffers in costs. I agree with Mustafa, J.A.
that the judge has discretion, when the suit is set down for hearing under r. 10 to allow a
defendant to apply to make good his default and might even, in his discretion, have
allowed the defendant to cross-examine the witnesses if in fact he was only crossexamining
on the question of damages. However, it does not appear from the record in
this case that the defendant ever admitted liability for the injuries received: he first
appears to do so in his memorandum of appeal to this Court. I do not think that the Devji
case takes away the discretion of a trial judge to allow the defendants to be heard under r.
10.
It is clear that the correct course for the counsel would have been to apply for leave to file the
reply out of time. Even though no defence has been filed, I have deemed it fit to permit the
grant leave. The trial judge relied on the principle that a defendant who fails to file a defence
puts himself out of court and cannot be heard. On appeal to the Court of Appeal at Kampala, it
was held that the trial judge had discretion whether to permit the AGs representative to
participate in the proceedings. At page 360
"On the matter coming for hearing the trial judge refused to allow the advocate
appearing for the Attorney-General to cross-examine the witness or take part in the
trial. He relied on the judgment of this Court in Kanji Devji v. Jinabhai (1934), 1 E.A.C.A.
87. 0.9, r. 10, is silent on the procedure to be followed when the appellant fails to file a
defence. The procedure is different when a defendant has failed to enter an
appearance, in that case the action is set down for hearingex parte, no notice is served
on the defendant but provision is made by r. 18 of that Order that if a defendant does
appear and desires to take part in proceedings then the court is given a wide discretion
and has power to allow the defendant to take part in the proceedings even though this
would no doubt be on terms to see that the appellant does nO,t suffer through the
defendant's default. The court must clearly have discretion to act under r. 10. The whole
basis of our civil procedure laws is to see that justice is done between the parties, and
the courts will be slow to prevent a defendant from making his defence even though he
is in default, if the plaintiff can be reasonably compensated for any loss he suffers in
costs. I agree with Mustafa, J.A. that the judge has discretion, when the suit is set down
for hearing under r. 10 to allow a defendant to apply to make good his default and
might even, in his discretion, have allowed the defendant to cross-examine the
witnesses if in fact he was only cross-examining on the question of damages. However,
it does not appear from the record in this case that the defendant ever admitted liability
for the injuries received: he first appears to do so in his memorandum of appeal to this
Court. I do not think that the Devji case takes away the discretion of a trial judge to
allow the defendants to' be heard under r. 10.
It is clear that the correct course for the counsel would have been to apply for leave to file the
reply out of time. Even though no defence has been filed, I have deemed it fit to permit the
Respondents counsel to participate in the proceedings. In interlocutory applications default
judgments cannot be entered. The final result is that the Respondents affidavit in reply is struck
out with costs for having been filed about 5 Months out of time. Counsel for the Respondent
may however address court on the merits of the Applicants application.
Christopher Madrama
Thursday, December 09, 2010
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Ruling delivered in the Presence of:
Moses Tugume for Applicant
Mugerwa Kiggundu for Respondent
Applicants MD Haruna Sembatya in court
Patricia Akanyo Court Clerk.
Christopher Madrama
Judge
Thursday December 09 2010
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