THE RUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION 482 OF 2014

(ARISING FROM CIVIL SUIT NO. 337 OF 2014)

1. MARSENNE (UGANDA) LIMITED
2. NORBERT OKIRING
3. AMAMURE MARY …..…………….. APPLICANTS/ DEFENDANTS

VERSUS

STANBIC BANK (U) LIMITED …………… RESPONDENT/PLAINTIFF

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

This was an application brought under S.98 Civil Procedure Act., O. 36 RR. 3 and 4 and O. 52 RR. 1, 2, and 3 of the Civil Procedure Rules, seeking orders that:

• Civil Suit no. 337 /2014 be dismissed with costs.
• In the alternative but without prejudice to the above prayer, the Applicants/Defendants be granted leave to appear and defend the suit.
• Costs of the application were also applied for.

The application was supported by the affidavits of the Second and Third Defendants/Applicants.

There is an affidavit in reply indicating that service was on 21.05.14, and yet this application was filed 16.06.14. It was contended that the application should be struck out for being filed out of time without leave of court. Further that the First Applicant is indebted to the Respondent and therefore application should be dismissed.

The deponent of the affidavit in rejoinder denies that date of service was 21.05.14 and asserts that it was on 06.06.14, among other things.  It is further stated that no notice to honor guarantee was ever served upon the Applicants. 

When the application was called for hearing on 15.10.14, Counsel for the Respondent objected to it on the ground that it did not follow the strict rules of 0.36 3 (2) C.P.R. He argued that the Application was filed outside the 10 days required by law.  He insisted that the provision is mandatory and that therefore the Respondent is entitled to a decree. He relied upon the affidavit of service and reiterated that the application should be struck out and judgment entered for Respondent.

Counsel for Applicant opposed the objection; contending that the Third Applicant points out that she declined to acknowledge receipt of summons or that she was ever served on date alleged in the affidavit of service and instead claims to have been served on 06.06.14.

That since there are two conflicting affidavits, court should look at other circumstances; including as to why affidavit of service is dated 04.09.14.

Further that there was no application for judgment at the time the application was filed;in which case the court should use its inherent powers under S.98 C.P.A to overrule objection and if application was filed out of time – enlarge time under S.99 C.P.A.

He then applied for dismissal of the suit and in the alternative for grant of leave to appear and defend.

The Case of Twentsche Overseas Trading Co. Ltd Vs Bombay Garage Ltd [1958] 1 EA 741 (HCU) was cited in support of the arguments; emphasizing that the application was filed before judgment was entered and should be heard on merit.

Counsel for Respondent maintained earlier submissions stressing that the procedures of 0.36 C.P.R and that service of summons was effected in May, 2014. He added that if Counsel for the Applicant wanted enlargement of time, he should have filed a formal application before hearing of this application

Also that, the Affidavit of service indicates a date of service that is confirmed by the Applicants’ acknowledgement of receipt of summons and therefore application should be struck out.

Upon hearing the submissions of both Counsel, I perused the record and noted the following:

• The Suit was filed 20.05.14 and it is indicated that the summons were issued on the same date.
• The affidavit of service dated 04.09.14 also indicates that summons were received on 21.05.14 for service upon the Defendants.
• It is deponed that service was effected on same date upon the Third Defendant who is alleged to have undertaken to give copies of the summons to the First and Second Defendant.
• The application for leave to appear and defend was filed 16.06.14; before application for default judgment was made.
• By letter dated 04.09.14, Counsel for Plaintiff applied for default judgment under 0.36 r 3 (2) C.P.R.  On 08.09.14, Court directed “fresh service”; more so, on Defendant No. 1.
• There is nothing to show that the said directive was complied with.
• The affidavit in support of the application gives a different date of when summons were said to have been served on the 3^rd Defendant from the date contained in the affidavit of service.

Bearing the above observations in mind, I find that I am more persuaded by the arguments of Counsel for the Applicants.  While 0.36 C.P.R envisages matters being disposed urgently, it could not have been the intention of the framers of the rules that the urgent disposal should be at the expense of dispensing justice. 

In the present case, it is apparent from the affidavits for and against the application that there is a conflict as to date of service. And looking at other surrounding circumstances, a number of questions come to mind; including; as pointed out by Counsel for the Applicant, as to why it took the Respondents such a long time to file an affidavit of service.

Secondly, the application was filed before judgment was applied for.  And when judgment was applied for, court declined to enter it and instead ordered fresh service, especially on the First Applicant. An indicator that, service had not been satisfactory. Yet, there is nothing to show that fresh service was effected as directed.

Guided by the principles laid down in decided cases, court finds that the best option in the circumstances is to overrule the objection; so that the application can be heard on its merits.  The Respondent filed an affidavit in reply to the application. No injustice will be occasioned to any of the parties who will be given a chance to be heard.

The objection is overruled for all those reasons. The Application should be fixed for hearing. Costs will abide the outcome of the application.

FLAVIA SENOGA ANGLIN

JUDGE

23.10.14