[2024] UGCommC 189

# THE REPUBLIC OF UGANDA IN THE HIGH COURT AT I(AMPALA ICoMMERCTAL DrVrSrONl MISCELLANEOUS APPLICATION NO. 242A OF 20/23 ARISING FROM CIVIL SUIT NO. 38.4 OF 2023 CHINA NATIONAL COMPLETE PLANT IMPORT AND EXPORT CORPORATION LTD: : : : : : : : : : : : : :APPLICANT VERSUS

SEIRIOS KONSTRUCT LTD: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

## Before Hon. Lady Justice Patricia Kahigi Asiimwe

### Ruling

Introduction

- 1. This Application was brought under sections 33 and 98 of the Civil Procedure Act Cap 71, Order 51 Rule 6 and Order 52 Rules 1&3 of the Civil Procedure Rules seeking orders that: - a) Time be extended to hle a Written Statement of Defence or to validate the Written Statement of Defence and Counterclaim; - b) Default judgment entered on 29rh August 2023 be set aside and matter heard on its merits; and - c) Costs of the Application be provided for. - 2. The grounds of the Application laid down in the Affidavit in Support of the Motion deponed by Pia Gullong, Managing Director of the Applicant are follows:

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- That at the time the summons was served the Applicant $a)$ was unable to instruct counsel to file a defence "due to both internal and overseas administrative new structures in place." - That the sums involved are colossal and it is only just $\mathbf{b}$ and equitable that the Applicant cannot go unheard. - 3. The Respondent opposed this Application by way of an Affidavit in Reply deponed by Edgar Mugisa, the Technical Director of the Respondent. He stated as follows: - That on 17^th December 2021 the Respondent entered $\overline{a}$ into a subcontract with the Applicant for the provision of interior design and fitting works at the National Medical Stores warehouse at Kajjansi. - the Respondent completed the works. The $b)$ That Applicant only paid the Respondent UGX. 50,000,000 leaving an outstanding balance of UGX. 124,800,000. - That the Applicant adamantly refused to pay the $c)$ outstanding amount thus Civil Suit No. 384 of 2023. - the Respondent served the Applicant with $d$ That summons to file a defence but the Applicant neglected to file a defence and default judgment was entered on 29^th August 2023.

#### Representation

The Applicant was represented by M/S Loi Advocates and the 4. Respondent was represented by M/S Muhangi, Keishaari & Co Advocates.

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#### Resolution

- The issue for resolution is whether the time within which to file $5$ a written statement of defence should be extended. Both parties filed submissions which I have considered. - Order 51 Rule 6 of the Civil Procedure Rules provides that: 6.

Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order.

7. In the case of **Hadondi Daniel vs Yolam Egondi Court of Appeal** Civil Appeal No 67 of 2003, cited in the case of Sseruwuge Charles Vs Kinoni Traders' Cooperative Savings Credit Society Misc. Application No. 24 of 2020 and also cited by counsel for the Respondent, it was held that:

> It is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must *relate to the inability or failure to take necessary step* within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended.

The Applicant's reason for the failure to file a defence in Civil Suit 8. No. 384 of 2023 is that they were "unable to instruct counsel to file a defence due to both internal and overseas administrative

new structures in place." The Applicant did not provide any further information on the said new internal and overseas administrative structures and how this resulted in their failure to take the step to file a defence within the prescribed time.

9. In the circumstances, I find that the Applicant has not shown sufficient cause for failure to file a defence in Civil Suit No. 384 of 2023. The Application is therefore hereby dismissed with costs to the Respondent.

#### Dated this 21^st day of June 2024

AHR

Patricia Kahigi Asiimwe

Judge

Delivered on ECCMIS