THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 73 OF 2016
(Arising From Civil Suit No. 525 of 2014)
MK FINANCIERS LIMITED...................................................................... APPLICANT
MOHAMED BAZINDUSE LULIBEDDA MUTUMBA....................... RESPONDENT
This is an application to strike out the written statement of defence filed by the respondent, enter summary judgment in favour of the applicant and provide for costs. It was brought by way of notice of motion under O. 52 r. 1 of the CPR and S. 98 of the CPA. There are many applications referred to in this ruling. Reference to ‘the applicant’ and ‘the respondent’, unless specifically stated otherwise shall be reference to the applicant and respondent in this application, even if the parties in the matter under discussion are referred to differently.
The brief background to this application is in order. The applicant filed civil suit No. 525 of 2014 against the respondent under a specially endorsed plaint. He secured ex parte judgment. The respondent in MA No. 890 of 2014 applied to set aside the ex parte judgment, and for leave to file a defence. Both prayers were granted. The applicant filed MA No. 863 of 2015 seeking a review of the ruling (in MA No. 890 of 2014) granting the respondent leave to appear and defend.
Meanwhile the respondent filed a written statement of defence with a counter claim (WSD). This was on 27/10/2015. When he sought to serve the applicant with the same, service was declined on the ground that the service to the applicant/defendant on the counter claim, was outside the time allowed under the law. The respondent filed MA No. 52 of 2016 seeking leave to extend time within which to serve the WSD to enable him serve the applicant with the same.
At the commencement of hearing this application, by consent of both parties, the two applications were withdrawn. MA No. 863 of 2015 which sought a review of the ruling granting the respondent leave to file a defence, was withdrawn with no order as to costs. MA No. 52 of
- which sought leave to enlarge time within which to serve the applicant with the WSD was allowed with costs to the applicant.
I will say at this stage that even if there was no consent, I would have granted leave to the respondent to serve out of time. This is a matter involving large sums of money which the applicant claims and which the respondent denies. It is only just and proper that court determines the suit on its merits. For his dereliction to serve on time, the respondent would be condemned in costs.
I have taken occasion to read the authorities cited in this matter, particularly by the applicant and I am grateful for his industry, even if I do not make reference to them in this ruling.
The question for determination in the present application therefore remained whether the WSD was filed within the time allowed by the law. That was a matter of fact, and a simple one. One had to look at the record and make the determination. The ruling by the court in MA No. 890 of
- granting leave to the respondent to file a defence was signed by the judge on 15/10/2015. The Judge directed in that ruling that the respondent should file WSD within 10 days of the ruling.
The learned Judge directed that his ruling should be read to the parties by the Registrar of the court. The Registrar of the court read out this ruling on 21/10/2015. All the above is on court record. It cannot be said that the applicant was not aware that the ruling was delivered on 21/10/2015 because in his application MA No. 863 of 2015, the applicant stated so in his notice of motion and in his affidavit in support.
Time within which to file a WSD began to run from the day the ruling was delivered and that was on 21/10/2015. The respondent filed his WSD on 27/10/2015. That was within the 10 days which was granted by court within which to file the defence.
There was a submission that since the respondent did not file an affidavit in reply to the applicants affidavit, the application remained unopposed, and should therefore be allowed. With respect, that submission could not be countenanced. The applicant in his application deposed an affidavit in support of his motion. In that affidavit, he deposed that the Registrar read the ruling (in MA 890 of 2015) on 13/10/2015. That was a lie, and the record is clear. The ruling was delivered on 21/10/2015. The applicant sought to prove his case in order to get a favourable determination from court. He could only do so by adducing credible evidence, but not lies.
In the premises the application is not granted. The applicant shall bear the costs of this application.
Court: The Registrar of the court shall deliver this ruling.