Kirti v Vinadkan & 4 Others (Miscellaneous Application 212 of 2023) [2024] UGHC 651 (30 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT JINJA

## **MISCELLANEOUS APPLICATION NO. 212 OF 2023**

# (ARISING FROM LAND CIVIL SUIT NO.078 OF 2019)

KIRTI SINGH RANA ::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. VINADKAN B. VADERA - 2. HAMIDA ASGAR KADERBHOY - 3. ARIF KADERBHOY - 4. AZIZ AKBERALI KADERBHOY

**RESPONDENTS**

5. TRAJNI TAYLOR

### BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA **NTAMBI**

#### **RULING**

#### **Background**

This Application was brought under Section 98 of the Civil Procedure Act, Order 52 Rules 1 and 2 and Order 5 rule 2 of the Civil Procedure Rules (CPR) seeking orders n that the Written Statement of Defence and the Counterclaim for the respondents are not properly filed and that the same be struck off the court record.

The grounds of the Application were laid out in the Affidavit in support deponed by Oguttu William and are briefly that;

- 1. That the Applicant's advocates served the respondent with an amended plaint on the 21st day of January 2022. - 2. That the Respondent's Written Statement of Defence and the Counterclaim were sealed by this Honourable Court on the 3rd day of February 2022. - 3. That the Written Statement of Defence and the Counterclaim were served on the Plaintiff on the 5th of April 2022 over two months after the same were issued by this Honourable court. - 4. That no Application for extension of summons nor leave to file the Respondent's Defence out of time was filed nor sought by the Respondent as required.

The Respondents opposed this Application by filing an Affidavit in Reply deponed by James Katono wherein he averred that the Applicant's counsel were duly served with the amended written statement of defence and counterclaim to which the Applicant's counsel filed a reply on 12th May 2022. He further averred that the Applicant's counsel signed the joint scheduling memorandum based on the amended plaint and the amended written statement of defence and counterclaim and thereafter the suit was

Page 1 of 4

fixed for hearing. As such, the Applicants were estopped from challenging the Written Statement of Defence and the Counterclaim.

#### **Representation**

The Applicant was represented by M/S Mangeni Law Chambers & Co. Advocates while the Applicants were represented by M/S Nambale, Nerima & Co. Advocates and **Legal Consultants**

#### **Determination of the Court**

The issue for the court's determination is one;

1. Whether the Respondent filed its Written Statement of Defence and *counterclaim within the requisite time.*

The Applicant's counsel submitted that the steps for filing a Written Statement of Defence are provided for under the Civil Procedure Rules under the provisions of Order 8 $r$ 1 (2) which reads as follows:

"Where a defendant has been served with a summons in the form provided by rule $1(1)$ a of Order 5 of these rules, he or she shall, unless some other or further order is made by the court, file his or her defence within fifteen days *after service of the summons.*"

From the foregoing, the law requires that a defendant files his/her Written Statement of Defence and Counterclaim within fifteen days from the date of receipt of the summons by delivering copies of the Written Statement of Defence and counterclaim to a proper officer of the court who shall then sign and affix an official seal on the documents. After the seal is fixed, a copy of the Written Statement of Defence shall be served to the opposite party. It therefore follows that filing involves two steps which include the placing of the Written Statement of Defence and Counterclaim on the court record and further serving the same to the opposite party. See Simon Tendo Kabenge v. Barclays Bank (U) Limited and Anor; SCCA No. 017 of 2015; Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010) [2010] UGCommC 41 (9 December 2010); Namutebi Prossy V Bumba John Livingstone Revision Cause No.21 of 2023; Reuben Semmy and Another v Ochieng and Others (Civil Suit 32 of 2022) [2024] UGHC 181 (29 February 2024).

The Applicant has adduced evidence to prove that whereas the Respondents filed a Written Statement of Defence and a counterclaim which were endorsed and sealed by the court on 3rd February 2022, the same were served on to the Applicants/Plaintiffs on 5th April 2022. This was clearly out of the time prescribed for service of the Written Statement of Defence and a counterclaim. It should also be noted that the Respondents did not seek leave of this court to serve their Written Statement of Defence and

Page 2 of 4

Counterclaim on the Applicants/Plaintiffs out of time. Resultantly, service was out of time.

I am alive to the submission made by counsel for the Respondents that the Applicants are estopped from challenging the amended Written Statement of Defence and the counter-claim as they had moved on to make replies to them and even participated in the Joint Scheduling Conference. However, I am not convinced that this is the correct position of the law. The provisions for filing a Written Statement of Defence and Counterclaim are statutory in nature and cannot be overridden by estoppel.

### Justice Madrama in Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010 held;

"According to Halsbury's Laws of England 4th Edition reissue (1987–1997) Volume 17 (1) page 290 paragraph 591 Estoppels cannot be set up to override or contravene the substantive law. The House of Lords in Maritime Electric Co Ltd v General Dairies Ltd [1937] 1 All ER 748 at 753 expressed this view:

"In the view of their Lordships, the answer to this question, in the case of such a statute as is now under consideration, must be in the negative. The sections of the Public Utilities Act which are here in question are sections enacted for the benefit of a section of the public, that is, on grounds of public policy, in a general sense. In such a case—and their Lordships do not propose to express any opinion as to statutes which are not within this category—where, as here, the statute imposes a duty of a positive kind, not avoidable by the performance of any formality for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it. This conclusion must follow from the circumstance that an estoppel is only a rule of evidence which, in certain special circumstances can be invoked by a party to an action; it cannot, therefore, avail, in such a case, to release the plaintiff from an obligation to obey such a statute, nor can it enable the defendant to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law. To hold, as the Supreme Court has done, that in such a case, estoppels is not precluded, since, if it is admitted, the statute is not evaded, appears to their Lordships, with respect, to approach the problem from the wrong direction; the court should first of all determine the nature of the obligation imposed by the statute, and then consider whether the admission of an estoppels would nullify the statutory provision."

I am in agreement with my learned brother. It cannot be said that the Applicant's Counsel had a duty to the Respondents to raise the objection earlier. The Applicant

Page 3 of 4

filed the application and it was upon the Respondent to reply. The Respondents were not misled to do anything and as such cannot invoke the doctrine of estoppel.

I should equally state that failure to file a Written Statement of Defence in time is not a technicality that can be cured under Article 126 (2) (e) of the Constitution of the Republic of Uganda. The rules and timelines for filing defences are not technicalities. They regulate the conduct of the court's business and ensure not only fairness but an orderly manner of disposal of cases. See Utex Industries Vs Attorney General S. C. C. A. NO. 52 OF 1995, Kasirye Byaruhanga & Co. Advocates vs. U. D. B. S. C. C. A. NO. 2 of 1997.

For the above reasons, I do find that the Respondents filed and served their Written Statement of Defence and Counterclaim out of time. They did not seek leave of court to extend time for service and have not presented a satisfactory reason to this court concerning their failure to do so.

For the foregoing reasons, I make the following orders;

- 1. The Written Statement of Defence for the Respondents/Defendants was filed and served out of time and is hereby struck off. - 2. The Counterclaim by is Respondents/Defendants was filed and served out of time and is hereby struck off. - 3. The hearing of this suit shall proceed exparte. - 4. Costs shall be in the cause.

I so order

FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE**

Delivered this 30th day of May 2024.