THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 200 OF 2011
(ARISING FROM MISCELLANEOUS APPLICATION NO 82 OF 2011)
(ARISING FROM CIVIL SUIT NO 30 OF 2010)
MWESIGWA GEOFFREY PHILIP}…..................................... APPLICANT
STANDARD CHARTERED BANK OF UGANDA}…................RESPONDENT
BEFORE HONOURABLE MR JUSTICE CHRISTOPHER MADRAMA
The applicant brought this application under the provisions of article 140 (1) of the Constitution of the Republic of Uganda 1995, order 9 rule 23 (1) and order 50 (1) (2) of the Civil Procedure Rules and other enabling laws for orders that:
The dismissal with costs of Miscellaneous Application No. 82 of 2011 made on 9 March 2011 by this court be set aside and/or reversed.
2. Miscellaneous Application No. 82 of 2011 is reinstated; and
3. Costs of the application are provided for.
The grounds of the application are:
That MA No. 82 of 2011 came for hearing on 9 March 2011.
2. That counsel who had personal conduct of the matter was unable to attend court that day because he had another urgent election matter namely Revisional Cause No.7 of 2011 fixed by the High Court civil division at the same time.
3. That the High Court judge directed that election matters take precedence and that counsel should inform court accordingly and counsel wrote a letter to that effect.
4. That the adjournment was denied by the honourable court citing rule 3 (iii) of the Commercial Court Administrative Direction No 1 of 2011.
5. That the constitution and article 140 (1) directs the High Court to suspend other matters when hearing elections matters.
6. That the application was further dismissed under order 9 rule 22 of the Civil Procedure Rules.
7. That the dismissal of the application is based on the Commercial Court Practice Direction which is a subsidiary legislation that could not override the Parliamentary Elections Act, a principal Act which provides that elections matters take precedence.
8. That there is a standing practice of the High Court chaired by the Principal Judge and all stakeholders that election related matters take precedence over other matters.
That under article 140 (1) where any question is before the High Court for determination under article 86 (1) of the Constitution, the High Court shall proceed to hear and determine the question expeditiously and for that purpose suspend any other matter pending before it
In reply, William Mukasa for Kampala Associated Advocates swore an affidavit in which he avers that he is a process server of this honourable court and that on the 18th of February 2010 Counsel Paul Kutesa gave a duly signed written statement of defence in triplicate for filing in the Commercial Court Division. That he carried out an assessment of court filing fees of the said the written statement of defence which he paid in the bank but didn't receive a Uganda Revenue Authority receipt for the same. That the next day Friday 19th of February 2011 he received the Uganda Revenue Authority receipt and filed the written statement of defence in court whereupon it was duly stamped with an acknowledgment stamp. Because the written statement of defence had not been signed and sealed by the registrar of the court he avers that he did not serve copies of the written statement of defence on the defendant's. In paragraph 9 of his affidavit he avers that he went back to the court registry on the 23rd of February 2010 to obtain the copies of the filed written statement of defence and found that the written statement of defence had been signed and sealed by the registrar and that someone whose identity he could not ascertain had picked one copy of the written statement of defence on behalf of the applicants advocates. He was advised by counsel Kutesa that there was no need to serve the applicants advocates as they had already signed for a copy of the written statement of defence. They therefore deposed an affidavit in opposition to the application for default judgment by the plaintiff.
At the hearing Dr. James Akampumuza appeared for the applicant while Counsel Jet Tumwebaze of Kampala Associated Advocates represented the respondent,
When the matter came for hearing I noted that there was no need for the application because the plaintiff was applying for default judgment and order 9 rule 5 of the Civil Procedure Rules only requires an applicant who wishes to obtain a judgment in default of defence to file an affidavit proving that the summons to file a written statement of defence had been duly served on the defendant. I further requested the parties to address me on the question of costs only of the application.
Dr. James Akampumuza submitted that the plaintiff had applied under order 9 rule 10 of the CPR for the suit to proceed ex parte in default of the defendant’s failure to file and serve the defence which they had persistently not done to date. The plaintiff filed this suit in this honourable court on 1st of February 2010 and proceeded to serve the defendant on 4th February 2010. The affidavit of service with endorsement of the defendant acknowledging service was filed in court on the 4th February 2010 and this is the affidavit of Tadeo Bbosa. He submitted that this was pursuant to order 9 rule 5 of the CPR. Consequently the defendant was supposed to file a defence within 15 days as directed by the summons. Pursuant to order 9 rule 10, in any suit not by the rules of the order otherwise specifically provided for, where the defendant does not file a defence on or before the date ordered and an affidavit of proof of service is filed in accordance with order 9 rule 5 the suit may proceed as if the party has filed a defence.
Dr. James submitted that filing a defence is both a question of law and question of fact. It was a question of fact that the plaintiff has never been served with a defence to date. He submitted that in law what is meant by filing of defence is found under order 8 rule 19 which provides that a defendant shall file his or her defence and either party shall file any pleadings subject to the filing of defence by delivering the defence or other pleading to court for placing upon court record and by delivering a duplicate of the defence or other pleading at the address for service of the other party. He contended that this order has two ingredients namely delivering the defence to the court for placing upon the record and secondly, delivering a duplicate of the defence or other pleading at the address of the opposite party.
To the question whether a defence was filed he asserted that the answer was no. He submitted that the plaintiff’s advocates have never seen the alleged written statement of defence allegedly filed on court record. The defendant was under a legal duty to deliver the same at the address of the opposite party. There cannot be an affidavit of service by the defendant and if one was available, counsel had to look at it. He submitted that the written statement of defence has to be struck off record for failure to take a necessary step on record. Counsel referred to the case of Mark Graves vs. Bolton Uganda Ltd in HMA 0158 of 2008 decided by Hon. Justice Lameck Mukasa. At page 7 of the 1st paragraph and starting at the bottom of page 6 the court interprets what is meant by the filing of a defence. A defence has to be served within 15 days from the date of service and from filing.
Even if the defence was filed on court record within 15 days it is a fact that by the 29th of June 2011, the defendant has never served any alleged WSD. He referred to page 8 of the judgment and argued that timelines provided by law are matters of substantive law. He prayed that the alleged written statement of defence is struck off the record. In the above case the defence was struck off for failure to serve the plaintiff.
Counsel further relied on the cases of Nile Breweries vs. Bruno Onzunga t/a Nebbi Boss Stores HCT – 00 – CC – CS 0580 of 2006 and Attorney General vs. Westmont Land (Asia) BHD and 2 Others MA 593 and 595 of 1999.
As far as costs were concerned counsel submitted that court has already observed that counsel had sufficient reason for not appearing on the date the application was fixed, consequently this court should waive the order for costs that had been issued in the application and awards costs of this application to the plaintiff.
In Reply Counsel Jet Tumwabaze submitted that as a question of fact the defendant was served with summons on the 4th of February 2010. The defendant filed a defence on the 19th of February 2010 within 15 days of the time provided by law and 19th was a Friday. He submitted that their process server did not obtain copies to serve on the plaintiff on the 20th when the WSD was endorsed by the court. When he came on the 23rd he found one copy had been taken and signed for by someone from the plaintiff’s advocate’s chambers. That is why the defendant did not proceed to serve a copy of the defence on to the plaintiff. He submitted that the defendants counsel was surprised to see that an application for default judgment had been filed.
He submitted that the cases quoted by his learned colleague Dr. James Akampumuza were distinguishable from the facts of the current case in that the defence was filed on time. Secondly the clerk of counsel for the applicant signed for the Written Statement of Defence on the court record (that is why it as not necessary to serve the defence.) He prayed that the application to proceed ex parte should be disallowed as it would not occasion any injustice to the plaintiff. Secondly no injustice had been occasioned to the plaintiff. As far as costs are concerned, he prayed that costs should be in the cause.
In rejoinder Dr. James Akampumuza after examination of the signature of the person who signed for the WSD from the court record submitted from the bar that he did not have a clerk by the name or signature and who purported to sign for the written statement of defence from the court record. He contended that in any case if that was a practice, such a practice cannot substitute the rules of the court. It was evidence of dilatory conduct and further proves that no service was ever made on the plaintiff. Secondly he contended that there was a problem of falsehood in the affidavit of William Mukasa. Paragraphs 7, 8, and 9 of the affidavit of the process server to the effect that the copies of the WSD were not signed or sealed by registrar by 19th of February 2010. He pointed out that registrar signed the WSD on the 23rd of February 2010. Annexure “A” is the WSD and the page sealed bears the date of 19th February 2010. Secondly this application were filed and not heard until the 18th of May 2011 dealing with non filing of a defence. He noted that the affidavit is dated is dated 13th June 2011 long after the applications have been going on. Lastly, that there is admission that no service of the WSD was made on the plaintiff. He reiterated his earlier prayers.
I have carefully considered the matter before me. The issue to be decided is whether failure to serve the written statement of defence on the plaintiff was fatal. Secondly, as a question of fact whether the written statement of defence was filed within 15 days from the time of service of the same on the defendant.
On the second question, one William Mukasa of Kampala Associated Advocates and a process server of this court swore an affidavit in reply on the 13th of June 2011. The applicant’s application for default judgement was filed on court record on the 9th of February 2011. An affidavit in reply thereto was sworn by the respondents counsel one Mr Ernest Rukundo of Kampala Associated Advocates on 7 March 2011. This was miscellaneous application number 82 of 2011 which application was dismissed by this court for want of appearance under order 9 rule 22 of the Civil Procedure Rules on the 9th of March 2011 when the matter came for hearing and the applicants counsel was involved in another proceeding in the High Court being an election petition proceeding. Because nobody appeared for the applicant the application was dismissed.
Thereafter the applicant filed miscellaneous application number 82 of 2011. These applications curiously bear the same number. The first application bears the receipt number for filing fees is URA 014 6164 and is dated 9th of February 2011. The second application which is also miscellaneous application number 82 of 2011 was filed in court on 15 April 2011 and its receipt number for filing fees is URA 028 2038. They are therefore different applications though bearing the same number. As noted above the affidavit in reply in the current application is sworn by William Mukasa on 13 June 2011. Counsel for the applicant attacked Paragraph 5, 6, 7 and 8 inclusive of paragraph 9 for bearing falsehoods. It gives the impression that on 19 February which was a Friday, the written statement of defence was not sealed by the court or endorsed by the registrar. That thereafter the deponent went back on 23 February 2010 that is when it had been signed.
On the other hand the written statement of defence shows that it was endorsed by the defendants counsel on the 17th of February 2010. It further shows that it was also endorsed by the registrar on 19th of February 2010, the same day it was filed on court record. From these facts which appear on the face of the document it could not be true firstly that the written statement of defence was not endorsed on 19 February 2010 and secondly that it could have been endorsed on 23 February 2010. I cannot however conclude that though the written statement of defence bears the date of filing as the date of endorsement that it was not endorsed at a later date. This is just what appears on the face of the record.
The second attack of counsel on paragraph 9 is where it is alleged that the clerk of the applicant’s lawyers had gone to the court registry and signed for a copy of the written statement of defence filed on the court record. Consequently the deponent avers that there was no need to serve the written statement of defence on the plaintiff.
Going by the face of the court record, the 19th of February 2010 was indeed a Friday. The registrar had endorsed the written statement of defence by that day and in fact the written statement of defence had been filed on court record on the same day. The affidavit of service of the summons also shows that Standard Chartered bank of Uganda Ltd was served on 4 February 2010 at 1:28 PM. This is the affidavit of Tadeo Bbosa sworn on 4 February 2010. This service is within 15 days. What is of concern and should be noted is that the affidavit of service of the summons attaches a plaint where a Standard Chartered bank official acknowledged service. The service does not comply with order 8 rule 1 sub 2 which provides the form of service under order 5 rule 1 sub rule 1 (a). Order 5 sub rule 1 provides that the summons shall order the time within which the defendant shall file a defence. So service is proved by evidence of acknowledgement of service on the summons itself and not on the plaint. The summons is an order of the court while the plaint is signed by the plaintiffs advocates and is not a document ordering anything.
That notwithstanding, no prejudice seems to have been occasioned to the defendant because the defendant filed a defence on the 15th day from 4 February 2010 that is on 19 February 2010. Secondly in his submissions Counsel Jet Tumwebaze admitted that summons to file written statement of defence was served on the defendant. For that reason I am unable to find that the defendant was not served with summons to file a written statement of defence. In the circumstances the only question for me to determine is whether failure to serve the written statement of defence on the plaintiff was fatal in the circumstances of this case.
Counsel referred to the case of Mark Graves versus Bolton Uganda limited HCMA No. 0158 of 2008. In that case honourable Justice Lameck Nsubuga Mukasa considered order 8 rule 1 sub rule 2 and order 8 rule 19 of the Civil Procedure Rules. Order 8 rule 1 sub rule 2 requires that a defendant served with summons under order 5 of the Civil Procedure Rules should file his or her defence within 15 days after the service of summons. Secondly order 8 rule 19 requires that a written statement of defence is filed by tendering a copy or other pleading to the court and placing it upon the court record and by delivering a duplicate of the defence or other pleadings to the address of service of the opposite party.
The court noted that it was a necessary element of the rule that a duplicate of the written statement of defence should be filed on the court record and another copy delivered to the address of service of the plaintiff. I was further referred to the judgement of Hon. Justice Lameck Mukasa in Nile Breweries Ltd verses Bruno Ozunga t/a Nebbi Boss Stores High Court civil suit number 0580 of 2006. The same issue arose in that case because the defence had not been served on the plaintiff within the times permitted by the rules (15 days). The court struck out the defence. In this case I need to address a more fundamental question. That is whether the defendant can assume that the defence has been served on the plaintiff merely by noting that somebody came and signed for the defence from the court record. The onus to serve under order 8 rule 19 is on the defendant to serve the defence on the address of service of the plaintiff provided for in the plaint. Order 8 rule 19 is mandatory. It provides as follows:
"Subject to rule 8 of this order a defendant shall file his or her defence and either party shall file any pleading subsequent to the filing of defence by delivering the defence or other pleading to the court for placing upon the record and by delivering a duplicate of the defence or other pleadings at the address for service of the opposite party."
In as much as the applicants counsel submitted from the bar that he did not know the person who signed for the written statement of defence, I base my decision on the duty of the defendant to serve the defence. To make matters worse paragraph 9 of the affidavit of William Mukasa filed in reply leaves a lot to be desired. To quote:
"that when I went back to the court registry on the 23rd of February 2010 to obtain the filed copies of the Written Statement of Defence, I found that the written statement of defence had been signed and sealed by the registrar and I also found that someone whose identity I could not ascertain had picked one copy of the Written Statement of Defence on behalf of Akampumuza and company advocates, whom I knew as being Counsel for the plaintiff in the suit and had acknowledged receipt thereof by signing on one of the copies on the file. See ANNEXTURE “A” above.”
The process server did not even know the identity of the person who allegedly signed for the written statement of defence. In the circumstances, there was no service of the written statement of defence on the plaintiff as required by order 8 rule 19 of the civil procedure rules. Following the two authorities cited above the written statement of defence is struck out and the plaintiff may proceed to have the suit tried in the manner provided for under order 9 rule 10 of the Civil Procedure Rules. Pursuant to the dismissal of MA 82 of 2011 on the 9th of March 2011 and having been directed by court that the matter proceeds under order 9 rule 5 of the Civil Procedure Rules the costs orders pursuant to dismissal of the application is set aside. The question of costs arising from the current matter in court shall abide the outcome of the main suit.
Ruling delivered this 27th of July 2011.
Hon. Mr. Justice Christopher Madrama
Ruling delivered in the presence of
Jet Tumwebaze for the defendant,
Dr. Akampumuza not in court,
Ojambo Makoha Court clerk,
Hon. Mr. Justice Christopher Madrama