THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
[COMMERCIAL DIVISION]
MISCELLANEOUS APPLICATION NO.625 OF 2011
(Arising from H.C.C.S. No. 333 of 2008)
1. CENTRAL ELECTRICALS INTERNATIONAL
LTD &ANOR::::::::::::::::::::::::::::::::::: APPLICANT/1ST COUNTER DEFENDANT
2. SAMUEL SEBIDE SENTONGO:::::::::::APPLICANT/2ND COUNTER DEFENDANT
VERSUS
PRESTIGE INVESTMENTS LTD::::::::::::::::::::::: RESPONDENT/COUNTER CLAIMANT
BEFORE: HON. LADY JUSTICE HELLEN OBURA
RULING
The applicant brought this application by Notice of Motion under the provisions
of Order 8 rules 8, 9 & 19, Order 9 rule 10, Order 5 rules 1 (3) (a), (b), (c) & 32,
Order 6 rules 23 & 25 and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR).
The applicant is seeking for orders that the amended Written Statement of
Defence
(WSD)
and
counter-claim
be
struck
out
and
the
respondent’s/counterclaimant’s amended counter claim be dismissed with costs
and that the main suit proceeds in default of the defendant filing a defence.
1
The application is supported by the affidavit of Ms. Kembabazi Annet dated 2nd
November 2011. In paragraphs 2-5 she states that the respondent was on
5/10/2011 allowed by this court to amend its WSD and add M & E Associates Ltd
as a 3rd counter-defendant. A copy of the order was attached as “A”. Further that
the respondent was also directed to file and serve the amended WSD within 15
days and in any event by 20/10/2011, which was never done within the time
limited by the court.
Affidavits in reply were sworn by Mr. Katende Godfrey a clerk in the law firm of
M/S Ntende, Owor & Co. Advocates and Mr. Charles Owor an advocate in the
same firm. Katende in his affidavit stated that on 20th October 2011, he received
from his superiors an amended WSD and counterclaim for filing and he proceeded
to file the same at the Commercial Court Registry as instructed. Further that after
the documents were received and stamped at the registry he was advised to take
them for assessment of court fees which he did and proceeded to the bank but by
the time he completed the process it was close to 5.00 pm.
He deposed that the process of paying fees in the bank was not completed until
Monday 24th October 2011 when he was given a receipt which he returned to the
court registry and the pleadings were endorsed and returned to him for service.
Further that he served the same on 25th October 2011.
Mr. Charles Owor on his part deposed that when this court granted leave to the
defendant/counter-claimant to file and serve an amended WSD and counterclaim,
2
their client went to their office several times to remind them about the limited
period within which they had to file the amendment. Further that due to power
outages in their office locality they were only able to complete the amendments
on the deadline date. That consequent upon that, they were only able to file it on
the last day of the order, that is, on 20th October 2011 and the court registry duly
received the same. From paragraphs 5-7 he repeated what was allegedly done by
Mr. Katende as stated in his affidavit.
He deposed that given that the defendant tried, against all odds, to file the
amended WSD and counterclaim within the time ordered there was willingness to
subscribe to the jurisdiction of this court and to ensure the ends of justice are
met. Further that the defendant/counter-claimant did not default in filing an
amended WSD and is not to blame for the failure of the lawyers and ought not to
be penalised for such failure.
He concluded that the justice of this case requires that the substance of the
dispute be investigated and decided on merit and any lapse on their part ought
not to bar the defendant/counter-claimant from pursuing the remedy it seeks.
When this application was called on for hearing on 5th December 2011, the
applicants were represented by Mr. Simon Tendo Kabenge and the respondent by
Mr. Frederick Samuel Ntende. Mr. Ntende informed court that he was not
prepared to proceed with the application and besides he had another matter in
Buganda Road Court to attend to. He prayed for an adjournment to enable him
attend to the matter in Buganda Road Court and also prepare to argue this
3
application. Although his prayer was strongly opposed by counsel for the
applicants, this court felt constrained to grant the same purely in the interest of
justice.
The matter was then adjourned to 13th February 2012 for hearing. On that day,
neither the official of the defendant/counter-claimant nor counsel appeared and
no explanation was furnished to court. Counsel for the applicants applied to
proceed ex-parte and he was allowed to do so. He then informed court that he
had already filed a written submission and requested court to consider the same
so that the matter is just fixed for a ruling. Court agreed to consider the same and
the matter was fixed for ruling.
I wish to note with concern that as I was preparing this ruling I came across a
document on the court record purporting to be the respondent’s submission filed
on 21st March 2012. I do not know the basis on which it was filed given that this
court had made an order that this matter proceeds ex-parte which order had not
been reviewed or set aside. In Misc. Application No. 624 of 2011, M & E
Associates v Prestige Investments Ltd at page 4 I criticized this casual and
unprofessional manner of conducting court business by counsel for the defendant
and I still do so more strongly now. Of course I disregarded that submission
because it was irregularly filed.
The applicants’ counsel submitted that the law on amendments especially when it
introduces a counter-claim is very strict on filing and serving of the counter claim.
This law is found in Order 6 r 23 of the CPR which provides that amendments are
4
to be filed within the time allowed and duplicate served in the manner provided
for in the service of summons. The manner provided for in the service of
summons is under Order 8 r19 and Order 5 rules 2 & 3.
He relied on the case of Nile Breweries Ltd v Bruno Ozunga t/a Nebbi Boss Stores
(C.S 0580-2006) [2008] UG Commercial Court 23 (unreported but on the judiciary
website). He submitted that in that case the learned judge was faced with a
similar situation and he interpreted the relevant laws on amendment, filing and
service of WSD/counterclaims.
He submitted that the gist of that case is that once court has given an order and
specified the date then both the filing and service of the amendment must be
effected within the dates specified by court. That is what Order 8 rule 19
provides. Further that the consequence of not doing that is provided for under
Order 6 rule 25. It provides for failure to amend, file and serve within the time
limited for that purpose by the order unless there is extension of time. He noted
that in this case the time has never been extended. Under Order 5 rules 1, 2, and
3 (c) the counterclaim should be dismissed without notice with costs to the 3rd
counter-defendant.
He contended that the affidavit in reply showed dilatory conduct by the
respondent. He contended that in paragraph 3 of the affidavit of Mr. Charles
Owor, he attributed statements and actions to the Managing Director (MD) of the
respondent which if true indeed show dilatory conduct on the part of the
5
respondent and the advocates. It states that he kept going there to remind the
advocates to file the amended WSD and counter claim.
He argued that the MD did not even file a supplementary affidavit to substantiate
what was stated. He noted that generally paragraphs 2 and 3 of that affidavit are
admissions of the applicant’s case regarding the time within which the
amendment was to be filed and served which they were all along aware of. He
contended that paragraph 4 of the affidavit is a lie because the deponent averred
that the amended WSD was filed and received in the court registry on 20/10/2011
but he did not even attach a copy of the same.
Further that it is also a lie that the same was received in the registry on 20th
October 2011 because the payment of fees on the WSD is dated 24th October
2011 and indeed the Registrar of the court confirms this on page 7 of the
purported amended WSD when he confirms that it was lodged in the registry on
the 24th October 2011. He argued that the allegation that it was filed on
20/10/2011 is borne of fraud and backdating as a pleading is never filed until it is
paid for.
He contended that Mr. Owor told a lie when in paragraph 6 to 8 of his affidavit he
relied on hearsay and stated that the defence was filed “against all odds”. He
wondered what the odds were because the court gave very specific time. Further
that he also told another lie in paragraph 13 of his affidavit where he stated that
whatever is stated therein is true and correct to the best of his knowledge, when
paragraphs 5, 6 and 7 are clearly based on the hearsay got from Katende and
6
paragraphs 8, 9, 10 and 11 are based on his beliefs and not knowledge. He
submitted that those are lies that offend Order 19 on affidavits.
He referred to the case of Eric Tibebega v Fr. Narensio Begunisa and Others
Supreme Court Civil Application No. 18/202 where JSC Kato at page 13 held
that:-
“In view of the fact that the affidavit in support of this application is
riddled with falsehoods and it is a mere hearsay, I find that the
application has not been supported by a valid affidavit. That being
the position, there is no evidence to establish that the Applicant had
sufficient reasons which prevented him from filing on time”
As regards the affidavit of the clerk, he pointed out that in paragraph 3 the
deponent stated that he filed the document yet in paragraph 4 he again stated
that he was advised to pay court fees but did not attach the alleged assessment
that he was advised to get. He argued that even if the document was received
and stamped by the court registry it was backdated because there was simply no
filing as no court fees had been paid.
He submitted that the filing was done on 24/10/2011 as per paragraph 6 of the
affidavit of the clerk when the documents were placed on the court file.
However, he contended that given that service has never been effected in the
time limited by the court there is no filing at all. He submitted that the alleged
7
service as stated in paragraph 7 of the clerk’s affidavit is not supported by
evidence of service.
He also referred to the case of Ndaula Ronald vs. Hajji Naduli Abdul & Anor.
Electoral Petition Appeal No. 20/2006, at pages 4, 5, 9, 11 and 12. He submitted
that that case is an authority on the fact that a document is not filed in court until
court fees is paid and once fees are paid outside time allowed then there is no
filing of the document. The same decision also states that a document filed
without payment of fees is an illegality and supersedes all matters of procedure
and must be struck off as was done in that case.
He pointed out that even when the alleged payment was made on 24/10/2011,
there is still a worse problem in that a fee of shs.3,000/= was paid for a
counterclaim of USD 55,763. He submitted that the Shs. 3,000/= was not the fee
for that counterclaim. Further that under Rule 4 and Part III of the schedule to
the judicature (Court Fees) Rules S.1 13-1 in a suit (which the counterclaim is)
where the amount involved is US Dollars the counterclaim is for
Shs.161,712,700/= the filing fees would be Shs.258,712.7 and not Shs.3,000/=.
He invited this court to adopt that authority and find that there was no filing at all
and the non-payment of appropriate fees made the WSD and counterclaim an
illegality. He also invited this court to find that the WSD and counterclaim was
filed on 24th October 2011, four days outside the time allowed by the Court. He
therefore prayed that this Court be pleased to grant the orders prayed for with
costs.
8
Before I consider the merit of this application, I wish to first deal with the issues
raised concerning the affidavits in reply particularly the one sworn by Mr. Charles
Owor. It is alleged that that affidavit contains both falsehood and hearsay and so
it should be struck out. Secondly, that the deponent stated in paragraph 13 that
whatever is stated therein is true and correct to the best of his knowledge when
actually the information in paragraphs 6 to 8 were got from Mr. Katende Godfrey.
I do not seem to see the lie that counsel is referring to. However, I agree that Mr.
Owor should have distinguished the paragraphs based on information from those
based on his knowledge and belief. If he had acknowledged the source of
information then it would not be hearsay.
Be that as it may, in the recent past the Supreme Court has adopted a more
liberal approach to dealing with defective affidavits. The offending paragraphs can
now be safely severed from the affidavit and the rest of the paragraphs accepted.
In the case of Col. (Rtd) Besigye Kizza v Museveni Yoweri Kagutta & Electoral
Commission (Election Petition No. 1 of 2001) [2001] UGSC 3, Odoki B.J. (Chief
Justice) in his lead judgment stated as follows;
“In Reamation Ltd. V UGANDA Corporation Creameries Ltd. and
Another Civil Application No. 7 of 2001, Motor Mart (U) Ltd. v
Yona Kanyomozi Civil Appeal No. 6 of 1999 and Yona Kanyomozi v
Motor Mart (U) Ltd. No. 8 of 98, the Supreme Court adopted a
liberal approach to affidavits. In Yona Kanyomozi v Motor Mart
9
(U) Ltd (supra) Mulenga JSC, held that some parts of counsel’s
affidavits were false and that those parts were irrelevant to the
application and could be ignored. On a reference to the full Court, it
was argued that the impugned affidavit was capable of severance
as the single judge did before arriving at his decision. The full court
held that it was unable to interfere with the discretion exercised by
the single judge.
From the authorities I have cited there is a general trend towards
taking a liberal approach in dealing with defective affidavits. This is
in line with the constitutional directives enacted in Article 126 of
the Constitution that the courts should administer substantive
justice without undue regard to technicalities. Rules of procedure
should be used as handmaiden to justice but not to defeat it”.
Meanwhile, in Greenwatch v Attorney General and Another (2003) 1 E.A. 87,
Mukasa J, held that knowledge can be acquired through human senses like
seeing, hearing, smelling, tasting or touching followed by understanding and
perceiving what one has sensed.
I am alive to the fact that there are also authorities that adopt a rigid approach to
defective affidavits. One of such is the case of Eric Tibebega (supra) that counsel
for the applicant relied upon. Another one is Sirasi Bitaitana and 4 others v
Emmanuel Kananura [1977] HCB 34 where Allen J, held that;
1. “The inconsistencies in an affidavit cannot be ignored however
minor, since a sworn affidavit is not a document to be treated
10
lightly. If it contains obvious falsehood then it all naturally becomes
suspect.
2. An application supported by a false affidavit is bound to fail
because the applicant in such a case does not go to court with
clean hands and tell the truth”. (Emphasis added).
That ruling was followed in the case of Nathan Katamba v Stephen
Kabigyema [2000] KALR 780 where Musoke Kibuuka J, held that;
“Affidavits are very serious documents. Once one contains a
falsehood in one part, the whole becomes suspect. An application
supported by a false affidavit is bound to fail. The applicant has not
come to this court with clean hands. The affidavit in support is
struck out. The motion remains unsupported by any kind of
evidence and is therefore valueless”. (Emphasis added).
As I observed in the case of Sam Aniagyei Obeng & Anor v MTL Real Properties
Ltd & Anor, Miscellaneous Application No. 198 of 2011 (arising out of Civil Suit
No. 53 of 2010), this court is bound to follow the liberal approach adopted by the
Supreme Court. In the circumstances, I will only sever the offending paragraphs of
Mr. Owor’s affidavit and accept the rest of the paragraphs.
11
Turning to the merit of this application, its background is that upon an oral
application, this court granted leave to the defendant/counter-claimant now
respondent to add M/S M & E Associates Ltd as the 3rd counter-defendant to its
counter-claim. An order was then made that the defendant/counter-claimant
amends its WSD and counterclaim and serves within fifteen days from 5th October
2011 when the order was made.
From the affidavits on record, it is clear that the defendant/counter-claimant did
not comply with that order within the prescribed time. There were attempts by
counsel for the defendant/counter-claimant to sugar-coat what happened as
stated in the affidavits in reply but the bottom line is that the order was not
complied with within time. In that context, I wish to point out that this case is
distinguishable from that of Nile Breweries Ltd (supra) where filing of the
amended WSD and counterclaim was done in time but service was not effected.
The issue was therefore whether or not filing had been completed in the absence
of service. The rules were also discussed in that context.
In the instant case the explanation of how the clerk brought the document to the
court registry for filing on the last day and the same was received and advice
made that fees be paid, in my view, is stating the obvious. Every lawyer ought to
know that documents are only validly filed upon payment of court fees. There are
many authorities to that effect. See the case of Babihuga Winnie v Matsiko
Winfred, Election Petition Application No. 14 of 2002 where the Court of Appeal
held that documents are properly filed in court after payment of court fees. See
also Ndaula Ronald (supra) and Pinnacle Projects Ltd v Business in Motion
12
Consultants Ltd, Miscellaneous Application No. 362 of 2010 where this court
quoted with approval the observation of Goudie, J in UNTA Exports Ltd v
Customs [1970] EALR 648 at page 649 that;
“I have no doubt whatsoever that both as a matter of practice and
also as a matter of law documents cannot validly be filed in the civil
registry unless fees have been paid or provided for by a general
deposit from the filing advocate from which authority has been given
to deduct court fees”.
In view of this settled principle of law, the explanation on how efforts were made
to file the amended WSD and counterclaim on the last day is not acceptable to
this court as it serves no useful purpose. I would have probably been sympathetic
if the explanation was made by an unrepresented party who does not know the
court procedure. Consequently, I find that the amended WSD and counterclaim
was filed on the 24th October 2011 when it was lodged at the court registry and
sealed by the Registrar after the court fees were paid. The endorsement made on
the 20th October 2011 was therefore irregular since court fees had not been paid.
As regards the effect of failure to comply with the timeline, I have addressed my
mind to the provisions of Order 6 rule 25 of the CPR but before I relate it to this
case I wish to point out that a clear distinction must be made between the time
prescribed by the rules and one given by an order of court. While the time
prescribed by the rules can sometimes be treated as mere technicality which can
be ignored in terms of Article 126 (2) (e) of the Constitution, depending on
13
whether it is stated in mandatory terms or not, the Court of Appeal has held that
a court order must be obeyed unless set aside or varied. This was the holding in
the case of Amrit Goyal v Harichand Goyal & 3 others (Civil Application No. 109
of 2004 [2008] UGCA 6 (7 August 2008).
In that case, upon an application by the applicant who was the successful party in
the High Court, the respondent who had appealed against the judgment and
order of the High Court was ordered by a Single Justice of Appeal to deposit Shs.
80,525,500/= as security for costs within 30 days from the date of her order and
in any case before the hearing date of the appeal. The appeal had been fixed for
hearing on 18th May 2004 and the ruling was delivered on 29th April 2004.
The respondent did not comply within the prescribed time and did not even apply
for extension of time. The applicant applied to have the Notice and Memorandum
of Appeal struck out on that basis and their Lordships held that:-
“A court order is a court order. It must be obeyed as ordered unless
set aside or varied. It is not a mere technicality that can be ignored.
If we allowed court orders to be ignored with impunity, this would
destroy the authority of judicial orders which is the heart of all
judicial systems……………….From what we have just stated above, we
hold a firm view that a court order is not a mere technical rule of
procedure that can be simply ignored. In our jurisprudence, court
orders must be respected and complied with. Those who choose to
ignore it do so at their own peril”.
14
I am not at all impressed by the reasons for the defendant/counter-claimant’s
failure to file the amended WSD and counterclaim in time as stated in the
affidavits in reply. Surely, could there have been power outages for the entire
period of fifteen days! Even if one were to believe that, could counsel not find
alternative ways of typing the pleadings so as to file it in time? To my mind that
was shear ineptitude on the part of counsel.
Ordinarily I would have been inclined to out rightly grant this application and
strike out the amended WSD and counterclaim that was clearly filed out of time.
However, in the interest of justice I will consider what was stated in paragraphs
10 and 11 of Mr. Owor’s affidavit before I make my final decision on this
application.
Mr. Owor stated in those paragraphs of his affidavit that the failure to file the
amended WSD and counterclaim was occasioned by failure of their law firm and
so the respondent should not be penalized because he had no control over their
action. He further stated that the justice of this case requires that this dispute be
investigated and decided on merit.
It is now a settled principle of law in our jurisdiction that mistakes of counsel
however negligent should not be visited on a litigant. In Banco Arabe Espanol vs.
Bank of Uganda SCCA No. 8/1998 [1997-2001] UCL 1, Oder, JSC (RIP), while
giving the background to the development of this principle stated that:-
15
“The question of whether an “oversight”, ‘mistake”, “negligence”, or
“error”, as the case may be, on the part of counsel should be visited on
a party the counsel represents and whether it constitutes “sufficient
reason” or “sufficient cause” justifying sufficient remedies from courts
has been discussed by courts in numerous authorities. Those
authorities deal with different circumstances; and may relate to
extension of time for doing a particular act, frequently in cases where
time has run out; some of them concern setting aside an ex parte
judgment or reinstating a dismissed suit such as in the present case.
But they have a common feature whether a party shall, or shall not, be
permanently deprived of the right of putting forward a bona fide claim
or defence by reason of the default of his professional advisor or
advisor’s clerk.”
As seen from that background, the rationale behind that principle is that a litigant
should not be permanently deprived of the right of putting forward a bona fide
claim or defence by reason of the default of his professional advisor or advisor’s
clerk. This principle was therefore established in the interest of substantive
justice.
There are many other authorities in Uganda where this principle was stated with
approval. They include; Hajji Nurdin Matovu vs. Ben Kiwanuka SCCA No. 12 of
1991 (Unreported), Alexander Jo Okello vs. Kayondo & Co. Advocates SCCA No. 1
of 1997 (Unreported) and Andrew Bamanya v Shamsherali Zaye CAC Application
No. 70 of 2001, where Mukasa-Kikonyogo, DCJ (as she then was) observed that
16
mistakes, faults, lapses or dilatory conduct of counsel should not be visited on the
litigant.
Applying that principle to the instant case, the firm of M/S Ntende, Owor & Co.
Advocates was instructed to represent the respondent/defendant/counterclaimant in this matter. As a client it does not have control on how the
instructions are carried out because the lawyers as legal experts/professional
advisors are presumed to know the law, procedures and practice of court. The
respondent/defendant/counter-claimant cannot therefore be faulted for the
mistakes of its counsel.
This court has been requested to strike out the amended WSD that was filed out
of time so that the matter proceeds in default of filing a WSD. This, in my view,
would amount to visiting the mistake of counsel on a litigant which is contrary to
the above stated principle and the rationale behind it. I am also of the view that
striking the amended WSD and allowing the matter to proceed in default of filing
a WSD will not serve the best interest of justice and expediency since the
respondent will still be at liberty to file other applications to seek redress. It
would therefore instead just lead to multiplicity of suits a mischief that section 33
of the Judicature Act seeks to address.
I have also looked at the nature of dispute in the main suit and I believe it can be
best resolved if all the concerned parties are brought on board. In any case,
counsel for the applicant did not address me on the prejudice that would be
occasioned to his client if this application is not allowed. I do not personally see
17
any prejudice that would be occasioned to the applicant/plaintiff if the time for
filing the amended WSD is extended so as to validate the filing of this pleading
which is already on court record. In any case, the provisions of Order 6 rule 25 of
the CPR, in my view, permit extension of time by court after the time allowed has
expired.
In the circumstances, I am inclined on my own motion to exercise the power given
to this court by section 98 of the Civil Procedure Act and section 33 of the
Judicature Act to enlarge the time for filing the amended WSD. Consequently, the
amended WSD and counterclaim that was filed on 24th October 2011 is validated
and I order that it should be served on the plaintiff/counter-defendants within
seven days from today. On the issue of the amount of fees paid, I order that the
correct amount be paid in accordance with the rules that govern payments of
court fees.
Costs of this application are awarded to the applicants and it shall be paid by
counsel for the respondent personally because his failure to act in time for no
justifiable reason gave rise to this application. The costs shall be paid before the
scheduling conference which had already been fixed for 25th April 2012.
I so order.
Dated this 13th day of April 2012
Hellen Obura
JUDGE
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Ruling delivered in chambers at 3.00 pm in the presence of Mr. Simon Tendo
Kabenge. There was no representation for the respondent as the application
proceeded ex-parte.
JUDGE
13/04/2012
19