[2023] UGHC 468

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MUKONO

### CIVIL APPEAL No. 42 OF 2019

## (ARISING FROM THE CHIEF MAGISTRATES COURT OF MUKONO AT MUKONO CIVIL SUIT No. 167 OF 2017)

## DIVINE CARE MINISTRIES:::::::::::::::::::::::::::::::::::: **VERSUS**

#### PASSIONS SERVICES LIMITED::::::::::::::::::::::::RESPONDENT

## **BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA JUDGMENT**

#### **Background:**

The Respondent filed Civil Suit No. 167 of 2017 at the Chief Magistrates Court of Mukono and the summons to file a defence were served on the Appellant on 12^th January, 2018. The Appellant then filed a defence and a counterclaim and served the Respondent on 9^th February, 2018. On 5^th March, 2018, the Respondent filed a reply to the Defence and counterclaim. The Appellant, on 29^th May, 2018 prayed for an Exparte Judgment against the Respondent in regards to its counterclaim since a reply to the counterclaim, had been filed after the lapse of 15 days contrary to the rules of procedure. Court granted an *exparte* order and the counterclaim was set down for formal proof on 21^st June, 2018. When the matter then came up for hearing on $28^{th}$ August, 2018 and the

Respondent's counsel made an Oral Application that the Exparte Order be set aside and the matter be heard inter parties. The Court allowed the Application and set aside the Exparte Order.

The Appellant being dissatisfied with that decision sought leave of Court to file an Appeal which was granted hence this Appeal.

The grounds of appeal as raised in the Memorandum of Appeal are:

- 1. The Learned Trial Chief Magistrate erred in law and fact when she held that the Appellant filed its Written Statement of Defence and counterclaim out of time whereas not thus occasioning a miscarriage of Justice. - 2. The Learned Trial Chief Magistrate erred in law and fact when she allowed Counsel for the Respondent/Defendant to the Counterclaim to make submission at the hearing of the counterclaim in which the Respondent/Defendant to the Counterclaim had not filed a defence thereby occasioning a miscarriage of Justice. - 3. The Learned Trial Chief Magistrate erred in law and fact when she set aside the Exparte Judgment in the counterclaim based on erroneous findings, grounds and an irregular Application thereby occasioning a miscarriage of Justice.

#### **Resolutions:**

**GROUND 1: The Learned Trial Chief Magistrate erred in law** and fact when she held that the Appellant filed its Written

## Statement of Defence and counterclaim out of time whereas not thus occasioning a miscarriage of Justice.

It was submitted for the Appellant that summons were served on 12^th January, 2018 and that the 15 days within which to file a defense were to lapse on 26^th January, 2018 which fell on Public holiday, the National Liberation day. The day was a Friday and the next business day was 29^th January, 2018 and it is on that day that the Applicant filed its defence and counterclaim.

Counsel for the Appellant was alive to the provisions of Order 8 Rule 1(2) of the Civil Procedure Rules which require a defendant to file a defense or counterclaim if any within 15 days from the date of receipt of the summons to file a defence.

He cited Order 51 Rule 3 of the Civil Procedure Rules which guides on how days for doing an act are counted which provides

"Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof the act or proceeding cannot be done or taken on that day, that act or proceeding shall, so far as regards the time of doing or taking the act or proceeding, be held to be duly done or taken if done or taken on the day on which the offices shall next be open"

This rule is to the effect that if the time to do an act or taking any proceedings expires on a Sunday or other day where the offices are closed and the act cannot therefore be done on that day, the

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act shall be taken to be duly done on the day on which the offices shall next be open.

Perusal of the record in Civil Suit No. 167 of 2017 indicates summons to file a defence in the suit were served on to M/S Anthony Ahimbisibwe Advocates & Solicitors, Counsel to the Appellant on 12^th January, 2018. An affidavit of service to that effect by Mr. Edwin Ahimbisibwe of M/s Kizza & Kwanza Advocates, Counsel to the Respondent was filed on 7^th February, 2018.

On 29^th January, 2018, the Appellant filed a Written Statement of Defense and a counterclaim. This was 17 days after it had received the summons to file a defense. The 15 days provided for under Order 8 rule 1(2) within which to file a defence expired on $26^{th}$ January, 2018 given that the day of receipt of summons is not counted since it is taken not to be a complete day. See Order 51 rule 8 and M/S SIMON TENDO KABENGE ADVOCATES & ANOR Vs. MINERAL ACCESS SYSTEMS LTD MA 570 of 2011.

The 26^th day of January is a celebrated public holiday in this country as it is the NRM liberation day; public offices are closed and given that 26^th January, 2018 was a Friday, the next business day where the court was open was Monday, 29^th January, 2018, the day the Appellant filed its defence and counterclaim.

In arriving at a decision that is subject to this Appeal, the Trial Chief Magistrate noted on page 3 of the record of proceedings,

"I have taken time to peruse the records and noted among other things that, the plaintiff filed this suit on the 20^th Dec, 2017 the Respondent filed a reply and counterclaim on the 29^th Jan, 2018. This was 40 days after the Plaintiff had filed the plaint. Under the Civil Procedure Rules the Defendant had to file their reply within 21 days"

The law is clearly spelt out in Order 8 rule 1(2) and the Defendant has 15 days after receipt of the summons to file his or her defence not 21 days after the suit is filed.

I therefore find that the Appellant compiled with the timelines set by law to file his defence and counterclaim. This ground therefore succeeds.

GROUND 2: The Learned Trial Chief Magistrate erred in law and fact when she allowed Counsel for the Respondent/ Defendant to the Counterclaim to make submission at the counterclaim which hearing of the in the Respondent/Defendant to the Counterclaim had not filed a defence thereby occasioning a miscarriage of Justice.

Counsel for the Appellant submitted that under Order 8 rule 18(3), where a counterclaim has been filed the timelines in the rules that apply to filing defences are also applicable to the reply.

He went on to submit that the counterclaim and defence were served on the Respondent on the 9^th February, 2018 and that it had until 23^rd February, 2018 to file a reply but rather filed it on 5^th

March, 2018 without seeking leave of Court to enlarge the time for filing. It was therefore the Appellant's contention that in absence of an Application to enlarge time, the reply was incompetent having been filed out of time.

Counsel went on to submit that in default to file a reply on time coupled with a grant of an Order to proceed exparte against the Respondent in the counterclaim, the Respondent had been locked out of the counterclaim proceedings and therefore it was improper for it to address court at the said proceedings.

An affidavit of service deposed by a one Tayebwa Sheba of M/S Anthony Ahimbisibwe Advocates & Solicitors, counsel for Appellant, shows that the Respondent was served with the defence and counterclaim on 9^th February, 2018. The record shows that it was filed on 5^th March, 2018, about 10 days after the lapse of time and thus filed out of the time stipulated by the rules.

A party who is caught by time to do an act, with sufficient reasons, ought to seek leave or ask Court to enlarge the time so that the act is done. The record of Appeal shows that there was no formal application seeking enlargement of time to file a reply to the counterclaim. However, on the 28^th August, 2018 when the matter came up for formal proof and counsel for the Respondent made an Oral Application that his reply to the counterclaim with leave of Court be admitted. This Application was strongly opposed and it

was argued that Applicant had locked himself out of the counterclaim proceedings when he failed to file his reply on time.

I am in Agreement with Counsel for the Appellant that a defendant/counterclaimant who does not file a defence or reply has no locus to be heard. See **WANGUBO SEFU Vs. BASHIRI** MAGOOLA & Anor Civil Appeal No. 44 of 2012 where it was held that;

"The general principle of law is that failure to file a defence raises" a presumption of constructive admission to the allegations in the plaint except as to damages, and that a defendant who files no defence cannot be heard."

I am inclined to find that the Respondent in failing to file a reply to the counterclaim had closed itself out of the proceedings in the counter claim and could not be heard.

The late defence however was rectified when the filing of the defence was allowed and therefore validated or regularized.

The Plaintiff does not state or show how he has been injured by the late filing and in my view substantive justice should be done and the rules of procedure are merely handmaidens of justice to give timelines that enable the quick dispensation of justice.

This ground fails for the reasons given above.

Ground 3: The Learned Trial Chief Magistrate erred in law and fact when she set aside the *exparte* Judgment in the

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# counterclaim based on erroneous findings, grounds and an irregular Application thereby occasioning a miscarriage of Justice.

Counsel for the Appellant submitted that the Respondent ought to have filed a formal Application under order 52 rule 1 for setting aside the *exparte* decree but instead made an oral Application.

As to the erroneous findings of the trial Magistrate and erroneous grounds of the Oral Application, Counsel submitted that for an Application to set aside an *exparte* order to succeed, the Applicant must either show that the summons were not served on him or that he had sufficient reasons that prevented him from filing in time. Counsel said none of these was advanced by the Respondent.

Counsel then submitted that the trial Magistrate also granted the application on erroneous findings to wit that the Appellant had also not complied with the timelines and that there was no mediation report to show that mediation in the counterclaim had failed.

I have already stated in Ground 1 that the Appellant filed his written statement of defence on time and that it was therefore improper for the Trial Magistrate to hold that it was filed outside the set timelines.

It suffices to say that all Applications to Court, except where expressly provided for under the rules are brought by Notice of Motion. See the dictates of Order 52 rule 1 of the rules.

Setting aside exparte judgments is provided for under Order 9 rule 12. There is no specific procedure provided for in the rules for such an application hence falling in the ambits of under Order 52 rule 1. It was therefore improper for the Respondent to make an Oral Application to set aside the Exparte Judgment.

The rules though couched as they are do not prohibit oral applications and it is the discretion of the Judicial Officer to decide whether an Oral Application will suffice in instead of a written one. This discretion would be denied where there in my view weighty matters of evidence which would infer evidence from the bar.

It has been held that no action maybe defeated by the use of a wrong procedural mode. See **ATTORNEY GENERAL & UGANDA** LAND COMMISSION Vs. NAMAIBA TEA ESTATES LTD MA No. 758 of 2012. Also in *Francis Wazarwahi Bwenave v Haki . W.* **Bonera supra, it was observed,** citing with approval the decision of the former East African Court of Appeal in Nanjibhai Prabohusdas & Co. Ltd vs Standard Bank Ltd [1968] EA 670 that:

"The Court should not treat any incorrect act as a nullity with" the consequence that everything founded thereon is in itself a nullity unless the incorrect act is of a most fundamental Matters of procedure are not normally of a nature. fundamental nature."

I have not discerned any prejudice occasioned to the Appellant when the Trial Magistrate allowed the Respondent's reply and set down the matter to be heard inter parties.

In the circumstances the Appeal fails.

### **Remedies:**

I observe that the Appellant prayed in his memorandum and submissions that the orders of the Trial Magistrate's decision be set aside, Appeal be allowed and costs granted to the Appellant.

Given the reasons advanced in the resolution of the grounds I am inclined to dismiss the appeal and order that each party bears their own costs.

**DATED** at **Mukono** this 25^th day of **October 2023.**

**CHRISTINE KAAHWA JUDGE**

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