Mulindwa v Atalyeba (HCT-01-CV-CS-0040-2023) [2025] UGHC 539 (14 July 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## **HCT-01-CV-CS-0040-2023**

**MULINDWA ROGERS APUULI ::::::::::::::::::::::::::::::::::::: PLAINTIFF**

## **VERSUS**

# **ATALYEBA JOSEPH :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA RULING ON A PRELIMINARY OBJECTION**

## **Background**:

- 1. On 18th October 2023, *Mulindwa Rogers Apuuli*, the Plaintiff, walked into this Court, seeking swift justice by filing a suit vide HCT-01-CV-CS-0040-2023. He initiated the case under summary procedure, aiming to recover a substantial sum of **Ug. Shs. 85,000,000/=**. This significant debt, he claimed, arose from an agreement with Atalyeba Joseph, the Defendant, dated 25th August 2023. - 2. However, *Atalyeba Joseph*, the Defendant, was not one to simply concede. On 30th October 2023, he promptly filed **HCT-01-CV-MA-0095-2023**, fervently requesting the court for unconditional leave to appear and defend the suit. He clearly believed he had a strong defense against the Plaintiff's claim.


- 3. After due consideration, this Court delivered its Ruling on 8 th April 2024, in HCT-01-CV-MA-0095-2023. The Court sided with the Defendant, granting him leave to appear and defend the suit. With this permission came a clear directive: the Defendant was ordered to file his Written Statement of Defence within 5 days from the date of the Ruling. Calculating carefully, this meant *Atalyeba's* defence was due no later than Monday, 15th April 2024, as the fifth day fell on a Saturday. - 4. Yet, despite this clear Order and the importance of the timeframe, the Written Statement of Defence from *Atalyeba Joseph* did not arrive by the deadline. It eventually appeared on 12th June 2024, filed without any prior request for leave from the Court. This belated submission, contrary to the Court's explicit order, set the stage for the next legal skirmish.

## **Preliminary Point of Law**:

- 5. On 24th March 2025, when the case came up for mention, in attendance were the key players: *Mr. Bwiruka Richard*, Counsel for the Plaintiff, *Mulindwa Rogers Apuuli*; *Mr. Keefa Nyambare*, Counsel for the Defendant; and *Atalyeba Joseph* himself, present in person. - 6. It was then that Mr. Bwiruka Richard, seizing a strategic opportunity, declared his intention to raise a preliminary objection. His challenge was pointed and precise: the Defendant's Written Statement of Defence, he argued, had been filed


out of time. Days later, on 1st April 2025, Mr. Bwiruka formalized his objection with written submissions. His argument was that the Defendant's defence, having missed the court-ordered deadline, was effectively invalid. He urged the Court to strike out the belated filing, contending that without a proper defence on record, the Plaintiff was entitled to a swift victory in form of a decree entered in the terms originally pleaded in the plaint.

7. On 4th July 2025, the matter returned before the Court. *Mr. Bwiruka Richard* reiterated his position, noting that while his submissions on the preliminary objection were duly filed, the Defendant's side had remained silent. *Atalyeba Joseph,* present once more, explained that his lawyer was engaged at the Commercial Court and couldn't attend. He pleaded for more time to allow his counsel to file a response to the weighty objection. The Court, granting a brief reprieve, fixed the Ruling for 14th July 2025.

## **Response by the Defendant**:

8. On 7th July 2025, the Defendant through his Advocates of *M/s Nyambane & Co. Advocates* filed written submissions. The Defendant's Counsel submitted that the Defendant had initially instructed *M/s Asasira & Co. Advocates* to apply for unconditional leave to appear and defend the suit. The said leave was granted on 8 th April 2024 by this Court in Miscellaneous Application No. 095 of 2023, with


an order that the WSD be filed within five days, i.e., by 13th April 2024. However, that the law firm of *M/s Asasira & Co. Advocates*, despite having full instructions, failed to file the WSD within the prescribed period.

- 9. He further submitted that the Defendant, being a layperson, began following up with his lawyers regarding the case but was frustrated by their lack of responsiveness. Consequently, that the Defendant withdrew instructions from *M/s Asasira & Co. Advocates* and engaged *M/s Ahabwe James & Co. Advocates*, who also failed to file a WSD despite filing a notice of change of advocates on 18th May 2024. - 10. That later, on 12th June 2024, the Defendant through the original firm, *M/s Asasira & Co. Advocates* eventually filed a defence. Meanwhile, that on 20th March 2025, the Defendant instructed the law firm of *M/s Nyambane & Co. Advocates* to take over conduct of the matter. At the hearing, the plaintiff raised a preliminary objection, asserting that the WSD was filed out of time and should therefore be struck out. - 11. In response to this objection, learned Counsel for the Defendant submitted that the Defendant ought not to be denied a right to be heard. He emphasized that **Section 98** of the **Civil Procedure Act** grants the court inherent powers to ensure the ends of justice are met in all matters. He cited the principle that the fault of a


professional advisor should not be visited upon the client and referenced the Supreme Court decision in **Banco Arabe Espanol vs. Bank of Uganda (Civil Appeal No. 8 of 1998)** in support of this position.

- 12. Counsel argued that the failure to file the WSD on time was entirely the mistake of counsel and that the Defendant, who had acted diligently in instructing Counsel, should not suffer for their failure. He stressed that the defendant was at all material times acting through legal counsel and had trusted them to perform their duties. Striking out the defence would amount to denying the Defendant access to justice, which would be unjust given his efforts and the substantial amount claimed by the plaintiff. - 13. He urged the court to adopt a substantive justice approach, invoking its inherent powers to admit the late defence. He further submitted that the hearing was still at an early stage and that no prejudice had been occasioned to the plaintiff by the late filing. He added that if the Plaintiff eventually succeeded, damages and costs could be awarded to address any inconvenience suffered. - 14. Regarding the second issue of remedies, counsel stated that the defendant had obtained leave to appear and defend on 8th April 2024 and filed the WSD on 12th June 2024 only two months late. He contended that this delay had not prejudiced the Plaintiff and that it would be unjust to condemn the Defendant to pay UGX


85 million without being heard. He prayed that the court invokes its inherent powers under **Section 98** of the **Civil Procedure Act** to validate the defence and allow the suit to proceed *inter partes*.

## **CONSIDERATION BY COURT**:

- 15. The Plaintiff's preliminary objection asserts that the Defendant's Written Statement of Defence (WSD) was filed out of time, specifically on 12th June 2024, despite this Court's Order of 8th April 2024, which required the WSD to be filed by 15th April 2024. The Plaintiff seeks to have the WSD struck out and a decree entered in their favor, arguing that there is no valid defence on record. The issue before this Court is: *Whether the preliminary objection should be upheld, leading to the striking out of the Defendant's WSD and the entering of a decree for the Plaintiff.* - 16. At the outset, it is crucial to emphasize the paramount importance of strict compliance with court Orders. Orders issued by a court of competent jurisdiction are not mere suggestions; they are directives that demand obedience from all parties, and indeed, from all citizens. The authority of courts and the integrity of the judicial system hinge on the expectation that their Orders will be respected and implemented.


17. This principle is deeply embedded in our legal system. As stated in **Hadkinson vs. Hadkinson [1952] P. 285**, *"it is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged."* Lord Denning M. R. in **Attorney General vs. Times Newspapers Ltd [1973] 3 All ER 54** famously asserted, "*it is a contempt of court to disobey an order of the court... The court has an inherent power to commit for contempt of court, and it is a power which it exercises to enforce its orders and to ensure that justice is done."*

18. In Uganda, this position has been consistently upheld. In **Housing Finance Bank**

**Ltd. & Anor v. Edward Nsubuga & Anor, S. C. Civil Application No. 11 of 2007**, the Supreme Court reiterated the fundamental principle that court orders must be obeyed, however erroneous they may appear to be, until they are set aside. Disobedience of a court order, even if based on perceived error, undermines the rule of law and the administration of justice. The rationale is clear: if litigants could selectively obey or disregard court orders, the entire judicial process would collapse into anarchy. Therefore, strict adherence to timelines and procedural directions issued by the court is essential for the orderly and efficient conduct of litigation.

 - 19. In the present case, this Court issued a clear and unambiguous order on 8th April 2024, directing the Defendant to file his Written Statement of Defence within 5 days. The Defendant's subsequent filing of the WSD on 12th June 2024, without seeking or obtaining leave of court, constituted a clear non-compliance with a direct court Order. This is a serious procedural default that, prima facie, warrants strict consequences. - 20. Notwithstanding the paramount importance of complying with court Orders, this Court is also bound by **Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995**, which mandates that *"substantive justice shall be administered without undue regard to technicalities."* This constitutional provision is a fundamental principle in the Ugandan legal system, encouraging courts to prioritize the merits of a case over strict adherence to procedural rules, especially when such adherence would lead to injustice. The Supreme Court has repeatedly emphasized the importance of this principle. In **Colonel Dr. Kiiza Besigye v. Yoweri Kaguta Museveni & Electoral Commission, Election Petition No. 1 of 2001**, Justice Odoki CJ (as he then was) stated that *"the court should lean in favour of sustaining a suit rather than terminating it on account of a technicality."* This was further expounded in **Makula International Ltd v. His Eminence Cardinal Nsubuga & Anor (1982) HCB 11**, where it was held that


a court cannot sanction an illegality, but the spirit of justice requires that a party should not be deprived of their right to a hearing merely because of a procedural lapse, provided no fundamental injustice is caused.

- 21. In the present case, while it is undisputed that the Defendant filed his WSD well beyond the stipulated five days (from 15th April 2024, to 12th June 2024), the defence was indeed filed. This is a technical breach of the court's Order regarding timelines. However, striking out the defence would mean denying the Defendant an opportunity to present his side of the story in a dispute involving a significant sum of money (Ug. Shs. 85,000,000/=). The Defendant's WSD explicitly denies indebtedness to the Plaintiff, raising a clear dispute that warrants judicial inquiry. To shut out the Defendant would be to sacrifice substantive justice at the altar of procedural technicality, which is contrary to the spirit of Article 126(2)(e). - 22. The Defendant's failure to file the WSD within the prescribed period, points to a lapse on the part of legal representation. It is a well-established principle in our jurisprudence that a litigant should not be unduly penalized for the mistakes or negligence of their counsel, especially when such mistakes do not reflect a lack of diligence or interest on the part of the litigant themselves. This principle was forcefully articulated by the Supreme Court in **Banco Arabe Espanol vs. Bank of Uganda, S. C. Civil Appeal No. 8 of 1998**, where it was held that errors or


omissions of counsel should not be visited on an innocent litigant. Similarly, in **Sarkar vs. Uganda (1966) EA 521**, it was emphasized that *"a mistake by counsel should not be allowed to defeat the legitimate claim of a litigant."*

- 23. In this instance, the Defendant has personally attended court sessions, including the mention on 24th March 2025 and the hearing on 4th July 2025, where he himself sought time for his lawyer to respond. This consistent personal attendance clearly demonstrates his interest in having the case determined on its merits and his commitment to the legal process. His presence indicates diligence on his part, and it would be unjust to deny him a hearing due to his counsel's default in adhering strictly to timelines or responding to the objection. The Defendant should be given an opportunity for a full hearing. - 24. The Plaintiff's suit is for recovery of a liquidated sum. However, the Defendant, in his belatedly filed WSD, explicitly denies indebtedness. This immediately transforms the matter from a mere formality to a substantive dispute requiring a full hearing on the merits. The purpose of civil litigation is to resolve genuine disputes between parties through a thorough examination of evidence and arguments. If a defendant has a plausible defence, even if filed late, the court should lean towards allowing it to be heard. The High Court in **Baguma Caleb vs. Uganda National Roads Authority, H. C. Civil Appeal No. 0003 of 2013**,


reiterated that courts should aim to resolve disputes on their merits rather than on procedural technicalities, especially where a genuine defence is put forward. To strike out the WSD would be to prematurely conclude a matter that clearly presents a genuine factual dispute as to the alleged debt.

- 25. While I acknowledge the Plaintiff's right to prompt disposal of cases and adherence to court Orders, the ultimate goal of justice administration is to ensure fairness to all parties. Striking out the Defendant's WSD would result in a default judgment against him without a full hearing, despite his apparent interest in defending the suit and the existence of a triable issue. This would cause significant injustice to the Defendant, potentially leading to the enforcement of a decree without his defence being considered. The prejudice to the Plaintiff from allowing the defence to stand, albeit late, is primarily in terms of a slight delay, which can be mitigated by appropriate cost Orders if they ultimately succeed. However, the prejudice to the Defendant from striking out his defence would be far more substantial and irreversible. - 26. Having carefully considered the preliminary objection raised by the Plaintiff, the background of the case, and guided by the constitutional mandate of administering substantive justice without undue regard to technicalities, this Court finds that the preliminary objection cannot be sustained. While recognizing


the imperative of complying with court orders, the unique circumstances of this case, particularly the Defendant's evident personal interest and the potential for a grave injustice due to counsel's lapse, warrant a broader application of justice.

- 27. While the Defendant's Written Statement of Defence was indeed filed out of time, this procedural lapse, when weighed against the Defendant's consistent personal attendance in court demonstrating his interest in the case, and the principle that a litigant should not suffer for the mistakes of their counsel, leads this Court to prioritize a full hearing on the merits. The Defendant's denial of indebtedness presents a triable issue that warrants a full investigation by the Court. - 28. Therefore, the preliminary objection raised by the Plaintiff is hereby overruled, and I accordingly make the following Order: - **(1)The preliminary objection raised by the Plaintiff is overruled.** - **(2)The Defendant's Written Statement of Defence filed on 12th June 2024 is hereby accepted and validated on court record.** - **(3)The costs occasioned by this preliminary objection shall be met by the Respondent in the cause in any event.**

I so Order.

**Dated at Fort Portal this 14th day of July 2025**


**12 |** P a g e


Vincent Wagona

**High Court Judge**

**FORTPORTAL**