THE RUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION 500 OF 2014

(ARISING FROM MISC. APPLICATION 137 OF 2014)

SEBYALA KIWANUKA

NAJUMA C. NALONGO…………………… APPLICANTS/DEFENDANTS

VERSUS

SENDI EDWARD ………….……………………………… RESPONDENT

BEFORE: LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

By this application made under 0.36 r11 and 0.52 rr 1, 2 and 3 C.P.R and S.33 Judicature Act, the Applicants sought orders of this court setting aside the default judgment entered against them in HCCS No. 137/2014; stay of execution of the decree and grant of unconditional leave to appear and defend the suit.

The Applicants also applied for costs of the application.

The application was supported by the affidavit of the First Applicant.

The grounds for the application are as set out in the motion.  There is an affidavit in reply filed by the Respondents.

The background to the application is that the Respondent filed a summary suit against the Applicant who did not seek leave to appear and defend the suit.  The Respondent sought and obtained default judgment and a decree was entered against the Applicants.  The Applicants then filed this application.

When the application was called for hearing, Counsel for the Applicants raised a preliminary objection that the affidavit in reply was filed out of time provided for by the rules.  Several authorities were cited in support of the objection.

Counsel for the Respondent replied by way of written submissions.

After careful consideration of the submissions of both Counsel, court overrules the objection raised by Counsel for the Applicant and directs that the main application be fixed for hearing.

The reasons for the decision are that the Supreme Court has established that “the essence of all disputes should be heard on merit and that rules of procedure are meant to be hand maidens of justice and not to defeat it”.

- See also S.33 of the Judicature Act which empowers court to grant absolutely or in such terms and conditions as it thinks just, all such remedies as any of the parties to a case or matter is entitled to in respect of any legal or equitable claim properly brought before it’ so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

In the present case, this application was filed on 01.07.14 and was fixed for hearing on 02.07.14.  When it came up then, no affidavit of service had been filed as it is apparent service had been effected late on Counsel for Respondent.

Both Counsel agreed to adjourn the matter to 3^rd September 2014 and affidavit in reply was filed 28.08.14.  Since the affidavit was filed before hearing of the application, it cannot be said to have prejudiced the Applicant.

In any case, it is in the interests of justice that the both parties be heard in this application to avoid the same situation that the Applicant is trying to remedy by bringing the application to set aside default judgment.

• If the affidavit complained were to be struck out, the Respondent would then possibly file an application for extension of time which to file the affidavit, would result in the multiplicity of proceedings S.33 Judicature Act was meant to prevent.

By raising the objection, it would appear Counsel for the Applicant was trying to delay determination of the application and that would result into the Applicant getting the orders he is seeking in this application without the other party being heard.

For all those reasons, the objection is overruled.  The application to set aside the default judgment and to grant unconditional leave to defend the suit should be heard on merit.

Costs will abide the outcome of the main application.

FLAVIA SENOGA ANGLIN

JUDGE

22.01.15