.THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MUBENDE
MISCELLANEOUS APPLICATION NO. MBD- 033 OF 2018 (Arising From Civil Suit. No. Mbd-029 of 2017)
- MITYANA DISTRICT LOCAL GOVERNMENT
- DR.MUDYABA PAUL =================== RESPONDENTS
RULING BY: HON. JUSTICE DR. JOSEPH MURANGIRA
The applicant abovenamed is represented by Mr. Mukuve Mugaga from Mukuve & Co. Advocates, Kampala.
The 1st respondent is represented by Ms Cheptoris Sylivia, State Attorney working with the Attorney Generals chambers, Kampala.
The 2nd respondent above named is representing himself.
This application is brought by way of Notice of Motion, under Section 98 of the Civil Procedure Act Cap. 71, Order 43 rules 4 (1) & rule 5 of Civil Procedure Rules Statutory Instrument No. 71-1. I must hasten to add that order 43 rules 4 (1) and 5 of the CPR is not applicable to this application. Such irregularity in my view renders this application incurably defective.
This application is seeking the following orders; that:-
- Written Statement of Defence filed by the defendants be struck out.
- Default judgment be entered in favour of the plaintiff.
- The costs of this application be provided for.
This application is based on the following grounds; that:-
- That the applicant filed a suit against the respondents in this Court.
- The pleadings were duly served unto the respondents.
- That unfortunately the respondents have never since filed their written statement of defence and time for doing so has elapsed.
- That it is just and equitable that this application be granted.
This application is supported by the affidavit sworn by the applicant at Kampala on 19/03/2018. The applicant attached the summons to file a defence that was served in the office of CAO Mityana District Local Government which was received on 13/12/2017.
The applicant on 19/04/2018, filed an affidavit in rejoinder to the 1st respondents’ affidavit in reply.
The 1st respondent filed an affidavit in reply through Nanvuma Jane Frances, a State Attorney in Attorney General’s Chambers.
This affidavit contains affidavit evidence in rebuttal to the applicant’s application, Miscellaneous Application No. 33 of 2018.
The 2nd respondent, Dr. Mudyaba Paul filed an affidavit in reply and in opposition to the applicant’s application.
Resolution of this application by Court.
Counsel for both parties filed in Court their respective written submissions. I must say that both counsel for the parties generated spirited arguments in their written submissions in support of their respective client’s cases.
In his written submissions, Counsel for the applicant submitted that the respondents/ defendants, the applicant served his plaint on to the respondents on 13th December, 2017. That however despite the service being affected the respondents then filed their written statements of defence on 19th-01-2018 and 30th-01-2018, respectively. That the written statements of defence, however were never served onto the applicant who only discovered them when he attended court to file his application for judgment in default on 20th-03-2018.
The 2nd respondent in his affidavit in reply and written submissions denied service on him of the plaint and the summons to file a defence within 15 days of service after the said service on him. That he discovered that the suit against him filed by the applicant much later.
The 1st respondent contends that in this affidavit in reply and the written submissions in reply to the submissions in reply to the submissions filed in Court by the applicant that he filed his written statement of defence within time prescribed by law and in the summons to file a defence.
Counsel for applicant in his written submissions at page 1, paragraphs 4 and 5 conceeded that the 1st respondent filed his written statement of defence within 13 (thirteen) days, which is within time stipulated by law. That the 2nd respondent filed his written statement of defence after 24 (twenty four) days, which period falls outside the time prescribed by law. He further contended that the filing of the written statement of defence does not occur until the same has been served onto the plaintiff within the time prescribed by law; as per order 8 rule 19 of the Civil Procedure Rules, S.1. 71-1.
That, that was not done by the respondents and that therefore their respective written statement of defence ought to be struck out and a default judgment entered in favour of the plaintiff/applicant.
On perusal of the entire record of HCCS No. 29 of 2017 between the parties, I landed on Miscellaneous application no. 172 of 2017 between the parties, arising from HCCS-no. 29 of 2017. This application was supposed to be heard on 13th December, 2017. That application was seeking the following orders; that:-
(1) The time of service of the summons issued by this Court be extended.
(2) Leave be granted to the applicant to serve the renewed summons against the defendants/respondents.
(3) The costs of this application be provided for.
The said application was based on the following grounds; that:-
- The applicant is the plaintiff in Civil Suit no. 29 of 2017.
- That the summons issued from this Court on 10th October, 2017 to be served on to the defendants/respondents.
- The clerk of my lawyer wrongly served the summons on to the Mityana Lands office and not Mityana District Local Government as the summons required.
- That the second defendant has been unavailable at his ordinary place of residence and work place but we only established his location after the summons had expired.
- That is just and equitable that this application be granted.
The said application is dated 16th-11-2017 and was sanctioned by the Asst. Registrar of this Court on 5th-12-2017. This application was drawn and filed by Mukuve & Co. Advocates, Kampala, Counsel for the plaintiff/applicant.
This application was never heard by Court. Thus, the fresh summons issued by the Assistant Registrar of this Court on 13th December, 2017 were issued in error. Thus, the aforestated renders the service of the summons to file the defence on to the defendants/respondents ineffective. Therefore, I do not see any reasons to fault the defendants/respondents of any wrong doing.
In any event, from the available affidavits evidence on Court record, and from the submissions by Counsel for the applicant and the submissions by 2nd respondent; it becomes clear to me that the plaintiff/applicant never effected personal service of the plaint and summons to file a defence onto the 2nd defendant/2nd respondent.
Wherefore, I hold that each defendant filed in court his own written statement of defence within time from the date of receipt of the summons to file a defence. I thus answer the contentions by the applicant that the 2nd defendant/respondent filed his written statement of defence out of time in the negative.
Further, Counsel for the applicant argued and contended that the written statements of defence were never served on to the plaintiff nor his Counsel as required by Order 8 rule 19 of the Civil Procedure Rules (Supra). That, therefore, the same be struck out. Yes, the aforestated provision of the law requires the defendant in addition to placing the written statement of defence on the court file, to effect the service of the defence within 15 days after filing his/her defence in Court. Equally it is the major duty of the Court Registry to manage and control the service of court documents to the parties in time. In this instant case the Assistant Registrar after signing on the 1st and 2nd defendants’ respective written statement of defence ought to have directed service of the said written statement of defence on to the plaintiff’s Counsel. This was done by Court. Again, the requirement under Order 8 Rule 19 of the Civil Procedure Rules (Supra) is procedural. It should not affect substantive justice as emphasized under Article 126 (2) of the Constitution of the Republic of Uganda, 1995; such irregularity is cused under Article 126 (2) (e) of the Constitution (Supra), which provides that substantive justice shall be administered without undue regard to the technicalities. The defendants cannot be locked out of this trial against them. Justice should be seen being done to all parties.
Conclusion to all parties.
In closing and in total consideration of the affidavits evidence by the parties, their written submissions and the law cited hereinabove in this ruling, my own examination and evaluation of the entire case presented by both parties in their respective pleadings, I find that this application lacks merit. It is accordingly dismissed with costs to each respondent.
Further, the applicant/plaintiff is hereby served with the written statement of defence filed on Court by each defendant, from the Court premises.
Lastly, the main suit, HCCS no. 29 of 2017 is fixed for scheduling on 20th/03/2019 at 09:00 a.m.
Dated at Mubende this 6th day of March, 2019.
DR. JOSEPH MURANGIRA
Miscellaneous application no. 172 of 2017 arising from HCCS no. 29 of 2017, which was not heard by this Court is overtaken by events. It is accordingly dismissed without costs.
DR. JOSEPH MURANGIRA