China Railways 18th Bureau Group Company Limited v Businge (Miscellaneous Application 80 of 2024) [2024] UGHC 1126 (11 December 2024)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC. APPLICATION NO. 080 OF 2024 (ARISING FROM HCT – 01 – CV – CS – No. 20 of 2024) CHINA RAILWAY 18TH BUREAU GROUP CO. LTD :::::: APPLICANT VERSUS**

**BUSINGE JOSEPH :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. JUSTICE VINCENT WAGONA**

#### **RULING**

The applicant brought this application under section 33 of the Judicature Act, 96 and 98 of the Civil Procedure Act and Order 51 rule1, 52 rule 1 of the Civil Procedure rules seeking an order of court to set aside the interlocutory judgment entered against her in civil suit no. 20 of 2024, extension of time or leave to file a written statement of defense out of time and costs of taking out the application.

The application is supported by the affidavit of Babirye Mariam, an insurance claims manager in the applicant's company who deposed in brief as herein.

- 1. The summons in the main suit were never served upon the applicant but on Yiga Advocates who only proceed on work allocated to them by the applicant. - 2. That the said lawyers only informed the applicant of the summons much later when the statutory time within which to file a defense had lapsed.


- 3. That by the time she checked on court record, she found that an interlocutory judgment had been entered against the applicant. - 4. That it is fair and just that the application is allowed and leave is granted to the applicant to file a written statement of defense out of time or time be extended within which to do so. - 5. The applicant has a plausible defense to the allegation in the plaint and it is fair and just that the application is granted.

The application opposed by the Respondent through an affidavit in reply filed on 04th October 2024 where he deposed as follows:

- 1. The application lacks merit and is only intended to deny him the fruits of his judgment. After summons were issued, a one Babirye Mariam, an Administrator with the applicant was contacted about the same and was aware of the summons. - 2. The applicant through Babirye was aware of the summons and its Babirye who informed counsel MageziJohn in personal conduct of the matter to effect service upon Yiga Advocates one of the external lawyers of the company and the said lawyers were duly served with the summons to file a defense. - 3. In April 2024, Mr. Kijambu Douglas an advocate with Yiga Advocates contacted counsel for the Respondent about the possibility of settling the case out of court and proposed a sum of shs 30,000,000/- which he rejected as being too low. - 4. The applicant is guilty of dilatory conduct since they delayed to issue instructions and did not take the necessary steps to ensure that the WSD is filed within the prescribed time. The applicant did not state whether she had


a plausible defense to the Respondent's claim and a grant of this application shall cause suffering to the Respondent since he will not be able to realize the fruits of the judgment entered by court. It is fair the application is dismissed with costs.

## *Representation and Hearing:*

*M/s Jamil Magarura & Co. Advocates* appeared for the applicant while *M/s Magezi, Ibale & Co. Advocates* represented the Respondent. Learned counsel for the applicant filed written submissions which I have considered. Mr. John Magezi, learned counsel for the Respondent did not file submissions in opposition; I have taken into account the averments in the affidavit in reply.

## *Issues:*

*Whether or not the applicant has presented sufficient cause for the delay to file the written statement of defense out of time to warrant grant of this application.*

## *Consideration by Court:*

## *Law on extension of time to file a written statement of defense out of time:*

Under Order 9 rule 12 of the Civil Procedure Rules, the power to grant extension of time to file a written statement of defense is discretionary and exercisable upon proof of sufficient cause that prevented the party from filing a defense within the statutory period. Such power is exercised judiciously taking into account the facts of each case and the likely prejudice an applicant may be subjected to, if the same is denied or the injustice the Respondent may suffer if such a prayer is granted. (See: *Kabarole District Local Government v Gunn Paper Industries Ltd, HCMA No. 103 of 2022*).


In Hadondi *Danie v Yolam Ngondi, C. A C. A No. 67 of 2003*, "sufficient cause" was interpreted to connote the failure to take a particular act or step within the prescribed time. It relates to a justifiable explanation by a party of what prevented him or her from taking an act within the time provided for under the statute. It does not extend to wrong decisions, negligence, in-action by a party or dilatory conduct on the party alleging the same. (See: *Kabarole District Local Government v Gunn Paper Industries Ltd* (supra).

Courts in deliberating on whether to extend the time or not should be guided by the call to ensure that justice is done without undue regard to mistake, lapses and minor procedural irregularities which do not go to the root of the case since these are part of our trial process. (See: *Andrew Bamanya v Shamsherali Zaver, SCCA No. 70 of 2001 and Kabarole District Local Government supra*).

#### **Submissions:**

Learned counsel for the applicant pointed out that Order 29 rule 2 of the Civil Procedure Rules service upon a corporation should be on the secretary, a director, any other principal officer of the corporation or by sending it by post to the registered office of the corporation or the principal place of business of the corporation. That this was not done. That Ms. Babirye Mariam clearly indicated in the supporting affidavit that service was effected upon Yiga Advocates who act upon instructions from the applicant. That when the summons were served upon Yiga & Co. Advocates, there was delay to transmit them to the applicant and by the time she checked on the court record, the time within which to file a defense had lapsed. That the delay was caused by Yiga Advocates which mistake should not be visited upon the applicant.


In response, the Respondent insisted that service upon Yiga Advocates was on the advice of Ms. Mariam Babirye, an officer of the applicant. That after service, one of the lawyers under Yiga Advocates proposed to settle the case out of court and proposed a sum of shs30,000,000/= which was too low. That the applicant was aware of the summons and the delay to file the defense within the required time amounted to negligence and dilatory conduct. He asked court to be pleased to dismiss the application with costs.

#### **Analysis:**

Felix Ssessanga who effected service of the summons upon the applicant stated under paragraphs 2, 3, 4 and 5 of his affidavit that he received the summons to serve upon the applicant on 11.03.2024 from Mr. John Magezi and on the same day he proceeded to M/s Yiga Advocates to serve the same. That counsel Douglas Kijambu who was known to him acknowledged receipt of the summons and the plaint. Felix Ssessanga did not indicate that he made efforts to serve the applicant in the manner provided for under Order 29 rule 2 and he was referred to Yiga Advocates. The averments by the Respondent that there was communication between his counsel John Magezi and Babirye Mariam, an officer of the applicant regarding service is not backed by evidence.

I thus agree with learned counsel for the applicant that service of the summons was not effective. Be that as it may, even if I were to take it that service was effective, the summons were effected upon a law firm which was duly aware of the statutory timeframe within which to file a defense. There is no evidence or a correspondence between the applicant and the said Yiga Advocates as to the receipt of the summons. It appears the lawyers of Yiga Advocates merely sat on the summons


and kept quite. I believe this negligence of counsel should not be visited upon the applicant who is an innocent party.

Lastly,where a party expresses interest to be heard in a dispute, courts should be slow to close the gates against such person to the temple of justice. The denial should be justified and there must be foreseeable prejudice that the opposite party shall be subjected to in the event leave is granted. As expounded by the Supreme Court in *Andrew Bamanya* (supra), mistakes, lapses, faults and procedural irregularities will be there is our trial process. Not every mistake, fault or procedural irregularity should be treated with the consequence of denying a party an opportunity to be heard where he seeks one. The guiding principle should be seeing to it that justice is accessed by all equally and without undue regard to technicalities. In the present motion, the applicant has expressed interest to defend the suit against her. She stated under paragraph 11 of the affidavit in support that she has a plausible defense. I believe justice shall be better served and court shall minimize on multiplicity of suits and applications by granting this application so that the issues in controversy between the parties are heard once and for all to the logical conclusion taking into account the facts of either side.

Consequently I grant the application with the following orders:

- **(1)The interlocutory judgment entered against the applicant on the 25th of June 2024 by the Deputy Registrar is hereby set aside.** - **(2)Leave is granted to the defendant to file a defense within 15 days from the date of delivery of this ruling and serve upon the Respondent and thereafter, the other known procedures shall follow.** - **(3)I decline to make an award as to costs.**


**I so order.**

**Dated at Fort Portal this 11th day of December 2024.**


Vincent Wagona **High Court Judge Fort-portal**