Prof. Kakande and Another v Magambo and Another (Civil Miscellaneous Application 199 of 2023) [2024] UGHC 505 (18 March 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

## MISCELLANEOUS APPLICATION NO. 199 OF 2023

# (Arising from Miscellaneous Application No. 073 of 2023)

# (Arising from Civil Suit No. 133 of 2022)

1. PROF. KAKANDE ANGELUS ANGELO $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$

### 2. PROF. AMANDA EVASSY TUMUSIIME

### **VERSUS**

### <table> <tbody> 1. MAGAMBO RAMZY ERIAS RESPONDENTS </tbody> 2. KASOMA LAZARUS PETER 10

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Ruling

The applicant brought the instant application by way of Notice of Motion under Section 98 of the Civil Procedure Act and Order 6 Rules 23, 25 and 30 of the Civil 15 Procedure Rules against the respondents seeking the following orders;

- a. That the respondents' Written Statement of Defence be struck out. - b. Judgment in default be entered against the respondents. - c. The applicants' Civil Suit No. 133 of 2022 proceeds for formal proof. - d. Costs of the application be provided for.

The application is supported by an affidavit sworn by the 2<sup>nd</sup> applicant and the grounds briefly are that;

- 1. On the 8<sup>th</sup> September 2013, court granted an order to the respondent to pay court fees and serve the Written Statement of Defence (WSD) out of time within 2 days from the date of delivery of the ruling. - 2. That the respondent defied the court order by not complying to pay the court fees and serve the WSD within two days which ended on 12/9/2023. - 3. The respondents have never served their WSD on the applicants' lawyers. - 4. The respondent by its dilatory conduct abused the court process. - 5. It is just and equitable that the orders sought be granted.

The application was opposed through an affidavit in reply sworn by the 1st respondent and an additional affidavit in reply sworn by Bernard Mutyaba counsel

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for the Respondents and briefly they stated that the respondent and his counsel were never informed about the date of the ruling and as such were never present when the same was delivered. That the order as extracted by the applicants indicating that counsel for the respondents is false and meant to mislead court. That the respondents' counsel only got to know about the ruling when he came to follow up the matter on the 15<sup>th</sup> day of September, 2023. That this application just like the previous application shows the disinterest of the applicants to prosecute their substantive case.

The applicants swore affidavits in rejoinder.

#### Brief background: 10

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On $4/01/2023$ this honourable court issued summons for the respondents to file their Written Statement of Defence (WSD) within 15 days from the date of service or else the suit would proceed against them. The respondents never paid the requisite court fees and nor served the Applicants' counsel with the Written Statement of Defence with in the time ordered. The Applicants due to non-15 compliance with the court order by the respondents brought an application seeking for orders that the Respondents' Written Statement of Defence be struck out with costs for failure to pay court fees and service.

On 8/9/2023, court granted an order for the respondents to pay court fees and serve the WSD out of time within two days from the date of delivery of the ruling. $20$ These ended on $12/9/2023$ . The respondents did not pay the court fees nor file the Written Statement of Defence according to the court order. Hence, the instant application.

### Representation:

Dr. James Akampumuza appeared for the applicants while Mr. Bernard Mutyaba 25 appeared for the respondents. Both parties filed written submissions.

Issues:

- 1. Whether the respondents' Written Statement of Defence should not be struck out? - 2. Whether judgment in default should not be entered against the respondents/defendants? - 3. Whether the applicants' civil suit no. 133 of 2022 should not proceed for formal proof? - 4. What are the remedies available?

### Submissions:

### Preliminary objection:

Counsel for the applicants raised a preliminary objection to the effect that the respondents did not apply for extension of time within which to file their WSD out

of time. And that failure to pay court fees is a serious matter that leads to the $\mathsf{S}$ striking out of pleadings. (See: Ronald Ndaula v. Hajji Abdul Naduli, Election Petition No. 20 of 2006).

Counsel added that in the instant case the respondents did not in any way show court that they did not intend to flout the court's order and court cannot condone non-payment of fees, the only thing left would be to strike out the pleadings. (See: Simon Tendo Kabenge Advocates & Another v. Mineral Access Systems Ltd, HCT M. A No. 570 of 2011). Counsel prayed that the WSD and counterclaim be struck out with costs and judgment in default entered thereof and matter be fixed for proof of claim.

#### Issues $1,2,3$ were submitted on jointly. 15

Counsel for the Applicants submitted that the order extracted by the applicants correctly stated that counsel for the respondents was present on 19/6/2023 and not 8/09/2023 when the respondents and their counsel chose to absent themselves. That on 8/09/2023 court ordered the respondents to pay court fees and serve the WSD within two days but they did not obey the court orders claiming that they were not aware of the date of the ruling. That even if that were not the case the respondents should have applied to court for extension of time to pay fees and serve the WSD out of time.

Counsel added that the respondents were in contempt of court orders for failure to follow the court orders and acted in bad faith when they purported to pay fees and $25$ effect service outside the time granted by court without applying for extension of time.

Counsel went on to challenge the payment slip stating that it was not stamped, nor signed by anybody or indicated who made the payment or the suit number.

- Counsel concluded that the only available remedy for the respondents is to file for 30 extension of time within which to pay court fees and also serve their WSD if at all their claim was true. That the applicants continue to suffer loss by the respondents' dilatory acts since they continue to trespass on the suit land. Thus, the WSD should be struck out with costs and default judgment entered against the respondents. - Counsel for the respondents on the other hand submitted that court ought to take 35 cognizance of the fact that a party can only be guilty of disobedience of an order


of court if the same has been brought to his or her attention and that having done so, the party fails to purge himself/herself from the contempt. (See: Richard Odoi Adome v. Uganda Electricity Generation Company Limited Miscellaneous Application No. 1088 of 2022). That in the instant case the ruling on 8<sup>th</sup> September, 2023 was delivered only in the presence of the applicants and their counsel. That the respondents nor their counsel were present in court on that day and this was stated by Counsel Bernard Mutyaba in his affidavit in reply to the application. Nor were the respondents or their counsel ever informed about the ruling.

- Further, that the court originally set the miscellaneous application for ruling on 10 30<sup>th</sup> August, 2023 but the judge was indisposed and from that date no new date was ever communicated to the respondents either by the applicants' counsel or the court itself. As such, there was no way the respondents would have learnt about the 8<sup>th</sup> September, 2023 ruling. That the applicants bore the onus to serve the - respondents with the new date but did not therefore there is no justification for 15 condemning the respondents for disobeying an order which they got to learn about long after it had been issued.

Counsel added that the mistake of counsel cannot be attributed to the innocent litigant. And in this case the respondents' counsel was not in court because he was never notified of the hearing date. That even if he were present and disobeyed the $20$ court orders his mistakes would not be attributed to the innocent litigant. (See: Simon Tendo Kazibwe v. Mineral Access Syatems Ltd, HCT M. A No. 570 of 2011).

Counsel concluded that the complaints raised by the applicants have since been complied with, the fees have been paid and the WSD served on the applicants' counsel. That what damage or loss will the applicants suffer if the suit is set down for hearing and the matter determined? That the application is merely superfluous and moot and will not lead to any practical result. Thus, the application should be dismissed with costs.

Counsel for the applicants in rejoinder submitted that the respondents did not respond to the preliminary objection at all. That instead they attacked court by 30 claiming that the order extracted was falsified yet the said order clearly indicates that the respondents' counsel was present on the 19/6/2023.

Further, that the respondents did not tell court why they failed to attend court on the date of the ruling on 8/9/2023 and as such they are in contempt of court orders.

$25$

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Analysis of court:

Preliminary objection:

The applicants in the instant application raised a preliminary objection to the effect that the respondents did not comply with the court orders in regard to payment of court fees and service of the WSD as such are in contempt of court orders.

Osborne's Concise Law Dictionary defines contempt of court as;

"Conduct which interferes with administration of justice or impedes or perverts the cause of justice...civil contempt consists of failure to comply with the judgment or order of a court or breach of an undertaking of the court."

$\mathsf{S}$

The respondents in their affidavits in reply stated that they were not aware of the date of the ruling and it was delivered in their absence as such they did not deliberately fail to comply with the court orders. That immediately their counsel got to know about the court orders they were complied with.

In the case of Housing Finance Bank v. Speedway Auctioneers, M. A No. 158 of 15 2010, it was held that:

> "It is trite that a party who knows of an order, regardless of whether in view of the party, the order is null or valid, regular or irregular cannot be permitted to disobey it. Thus, it is not necessary for someone to be a party to the suit and what is required is the knowledge of the order which the respondents have been aware of hence contempt.

It is trite that for one to be found in contempt of court, there should have been a court order, that the contemnor knew about the order and willfully decided to disobey the same. In this case there is no dispute as to the presence of the court order, however, the respondents state that they were not aware of the court order until 15/9/2023 when their counsel came to court to follow up the court order. Thus, the respondents were not aware of the court order and a such did not willfully disobey the same.

I have carefully considered the submissions of both parties on the preliminary objection and the court record in that regard. I find that the respondents are not 30 in contempt of the court orders. Their Advocate was not present on 8/9/2023, when the ruling was delivered. There is no evidence that there was ever a hearing notice extracted with the said date of the ruling and the same served on the respondents and they still failed to appear in court. There are also no court proceedings indicating the date of 8/9/2023 given as the date when the ruling 35 would be delivered. The last date on record indicating when the ruling should have

been delivered is 30/8/2023 and the judge was indisposed on that day. There is no other record on the court file after this until 8/9/2023 when the ruling was delivered.

It is true that the respondents' counsel was present on 19/6/2023 when the ruling date of $30/8/2023$ was given. But he never came to court on $8/9/2023$ since he $\mathsf{S}$ did not know about that date and there is no proof adduced by the applicants that the respondents and their counsel actually knew about the new ruling date and still failed turn up.

I accordingly overrule the preliminary objection.

Merits of the application: $10$

> I will resolve all the issues concurrently. The instant application seeks to have the respondents' WSD struck out for non-payment of court fees and service on the applicants. That default judgment be entered in favour of the applicants.

The respondents nor their counsel were present when the court ruling was delivered on 8/9/2023 where court ordered that court fees be paid and service of 15 the WSD be effected within two days from the date of the ruling upon the applicants. This is also evidenced by the court order extracted by the applicants. The court fees were paid out of time and the WSD also served out of time. Counsel for the applicants contended that the respondents should have applied for extension of time. $20$

Counsel for the applicants further challenged the payment slip attached by the respondents claiming that it did not show what was being for nor was it stamped or signed, and that no court assessment is attached.

In regard to the payment of the court fees and service of the WSD within time, it is my considered view that the respondents as already discussed were not present 25 when the ruling was delivered and as such did not know about the same; when they did eventually know about the court order, the fees were paid and service of the WSD effected. I do agree with applicants that the correct procedure at this point was to apply for extension of time within which to service, however, this was not done. 30

Be that as it may, it does not prejudice the applicants in any way if anything another application would only elongated the whole litigation process. In the interest of fairness and meeting the ends of justice; I will not strike out the WSD for being served out of time as this will not resolve the dispute at hand that needs

to be determined in the main suit. $\Lambda$ 35

In regard to the payment of the court fees, I find that the said payment was made after an assessment was issued and it was made using a banking agent. While, this payment was challenged by counsel for the applicants, I took time and compared the respondents' payment slip to that of the applicants whose slip equally has no

indication of what is being for nor a court assessment. It only indicates the tax $\mathsf{S}$ payer as M/s Akampumuza and Co. Advocates. Whereas annexture marked "PR" actually has a court assessment of UGX 3,000/ $=$ and a photocopy of a payment slip is attached that was effected on the 15/9/2023; the transaction was effected through an agent. Agents do not stamp or sign on payment receipts unlike banks

which explains why there is no stamp on the respondents' slip as opposed to that of the applicants. I therefore, find no anomaly on the respondents' payment slip. I accordingly find that the court fees were duly paid by the respondents.

In a nutshell, I find no justification to strike out the WSD for non-payment of court fees and service of the same as these were all done by the respondents. The late payment of court fees and service of the WSD did not prejudice the applicants in 15 anyway. And in the interest of justice, striking out the WSD would not serve either party any good since the dispute would remain unresolved.

I find no merit in the application. It is hereby dismissed without costs. Let the main suit be fixed and heard on its merits.

I so order. 20

Right of appeal explained.

OYUKO ANTHONY OJOK

**JUDGE** 25

18/3/2024

10