THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 37 OF 2013
(ARISING FROM CIVIL SUIT NO 147 OF 2012)
ORIENT BANK LIMITED}................................................................ APPLICANT
AVI ENTERPRISES LIMITED}........................................................... RESPONDENT
BEFORE HON. JUSTICE CHRISTOPHER MADRAMA IZAMA
This ruling arises from a preliminary point of law arising from the pleadings of the parties. When the applicant's application came for hearing on 19 March 2013, the applicant was represented by Gimanga Sam while the respondent was represented by Dr James Akampumuza. At the commencement I informed the applicant that upon perusal of the application and affidavits in support I had formed the opinion that a point of law that would dispose of the application arises from the pleadings and affidavit evidence. This point of law was whether the applicant could bring an application for the orders sought in the notice of motion certain setting aside the interlocutory judgement based upon default of the applicant to file a defence. This is because the applicant had earlier on applied for extension of time to file a defence and the enlargement of time was ordered by consent of the parties for the applicant filed a written statement of defence and served on the plaintiff within 14 days from the date of the consent order. The applicant did not comply with the consent order and the respondent who is the plaintiff in the main suit applied to the registrar for default judgement and the suit was sued for formal proof and hearing was completed.
In support of the applicants application and right to bring this application counsel Gimanga Sam addressed the court after his application for adjournment to amend the pleadings was refused.
The applicants answer to the matter raised by the court is that the applicant applied for extension of time to file a written statement of defence and the same had been granted by consent of the parties. Counsel admitted that at the time of applying for enlargement of time to file a written statement of defence, the written statement of defence had been filed out of time. The consent order provided that the written statement of defence would be filed within 14 days from the date of the order. Counsel contended that having filed a defence of 7 June 2012 and served it on the respondent on 3 July 2012, the defence on record according to the law would serve the same purpose sought in the application for enlargement of time. He relied on the case of Godfrey Magezi and Brian Mbazira vs. Rupaleria Supreme Court Civil Application Number 10 of 2002. He argued that in that case there was an application by notice of motion seeking extension of time within which to file an appeal out of time. The applicant sought that the filing of the civil appeal out of time be validated. It was held by the Supreme Court when the time before lodging a document is extended and the document is duly launched if lodged within the time so extended, whether the actual lodging took place before or after the order of extension is to validate the appeal or excuse the late filing. That the court held that to hold otherwise would serve no purpose and escalate costs. It is on the basis that the applicant intents in answer to the preliminary issue of law to assert that the applicant having filed a defence on 7th of June 2012 and served it on the respondent, it was not necessary to file a defence again as held in the Supreme Court case cited above.
Secondly the applicants counsel submitted that it is in the interest of justice that the applicant and the defendant are allowed to defend the matter, the defendant having filed a defence earlier and is not guilty of dilatory conduct. Because there is a defence on court record it would be unjust to dismiss the applicant’s application. The applicants counsel further relied on the case of Co-operative Bank in Liquidation versus Amos Mugisha High Court miscellaneous application number 549 of 2009 before Justice Irene Mulyagonja Kakooza the effect that unless and until the court is pronounced the judgement upon the merits or by consent, it is to have power to revoke the expression of its coercive powers whether that has only been obtained by failure to follow any of the rules of procedure. Counsel also referred in the case of National Enterprises Corporation versus Mukisa Foods civil appeal number 42 of 1997 decided by the Court of Appeal on the same principle. In that case it was held by the Court of Appeal that denying a subject a hearing should be the last resort of court.
In reply Dr James Akampumuza submitted that the applicant's application in its current form and content and in any subsequent form would be an abuse of court process. He contended that the applicant could not apply for extension of time when it had failed to comply with an order of the court. The applicant was therefore in contempt of court. According to counsel the case of National Enterprises Corporation versus Mukisa Foods Ltd civil appeal number 42 of 1997 applies to the applicant's application and particularly the part that holds that denying the right of hearing should be a matter of last resort by the court. He submitted that this is a case where the last resort should be used. A litigant who is in contempt of court does not deserve any mercy of court and cannot invoke the inherent powers of the court. He relied on the court of appeal case of Amrit Goyal vs. Harichand Goyal and 3 Others Civil Application number 109 of 2004. In that case the court considered the stubbornness of the respondent to comply with an order of the court and held that the court cannot condone deliberate contempt of its orders. The court held that the question whether failure to comply with orders was not a mere technical rules of procedure that can be simply ignored. In the jurisprudence of the courts, orders have to be complied with and those who choose to ignore orders do so at the own peril. Counsel further submitted that the case of Geoffrey Magezi (supra) is not applicable because in that case there was no order of court as in the present case which had been issued and defied. Secondly at pages 89 – 81 it is apparent that in that application the court dealt with an application for validation of documents already filed in court out of time. In the applicant’s case, the court is not dealing with an application for validation appeal. And there is no basis to follow the decision in Geoffrey Magezi (supra).
The applicant did not apply for validation of the defence that is already on the court record. Secondly the court gave a fresh order to file and serve within 14 days. The applicant chose to disobey. Paragraph 8 of the affidavit in support avers that the applicant chose to interpret the court as having made the wrong order. Counsel contended that court orders are orders even if they are wrong. If they are wrong the applicant has to seek another remedy.
Lastly the respondents counsel submitted that the order for enlargement of time was a consent order attached as annexure "D" to the affidavit in reply. In this application the applicant seeks for orders and the most relevant to the first three namely an application to set aside the default judgement entered subsequent to the disobedience of the court order to file within 14 days; the order alone the respondent to proceed ex parte should be set aside and the suit should be fixed for hearing. In making the application the applicant does not sought the consent of the respondent to set aside or vary the consent judgement. Secondly the applicant does not apply to court to set aside the consent judgement. The respondent simply prayed to the court to execute what was within its rights. He reiterated submissions that the application is a clear abuse of court process and meant to pass behind the consent judgement executed between the applicant and the respondent and aver permit using the process of court. Counsel relied on the case of Attorney General and Uganda Land Commission versus James Mark Kamoga and another SCCA No 8 of 2004. He prayed that the applicant’s application is dismissed with costs.
In rejoinder the applicants counsel submitted that the applicant did not deliberately refuse to obey court orders. The applicant was under the impression that the written statement of defence on the court record was sufficient and that the order of extension of time within which to file a defence validated the written statement of defence on court record. He submitted that there was no stubbornness on the part of the applicants. He further rejoined that the case of Geoffrey Magezi (supra) dealt with validation an extension of time to file an appeal out of time. Secondly the affidavit in support of the application paragraph 13 did not assert that the court order was wrong as submitted by the respondents counsel but only asserted that there was a defence on record and the default judgement was issued thereafter. He reiterated prayers that the applicant's application should not be dismissed on a preliminary point of law.
I have carefully considered the point of law arising from the pleadings of the parties on which I have been addressed. I am grateful to both counsels for the authorities submitted in support of the respective party’s cases.
In miscellaneous application number 320 of 2012 the applicant applied for enlargement of time to file to file a written statement of defence and for costs of the application. When the matter came for hearing on 22 August 2012, counsels agreed that the application is allowed. The terms of the consent order which was extracted reads as follows: "…
That Miscellaneous Application Number 320 of 2012 being an application for enlargement of time within which to file and serve the defence is hereby granted.
That the applicant shall file and serve the written statement of defence within 14 days.
A temporary injunction is hereby issued against the defendants/respondents restraining them whether by themselves, representatives, or workmen from further attachment and sale of the applicant's properties or affecting the threatened arrest of the applicant's directors until disposal of the main suit High Court civil suit number 147 of 2012.
That Miscellaneous Application Number 248 of 2012 being an application for default judgment stands withdrawn.…"
The order was pronounced by the court pursuant to the consent of the parties on the 22nd day of August 2012. The applicant did not comply with clause 1 and 2 of the consent order and did not file and serve a written statement of defence as embodied in the order. The record shows that on 14 September 2012 the plaintiff's counsel filed a letter dated 14th of September 2012 applying to the Registrar of the High Court (Commercial Division) for the entry of a default judgement under order 9 rule 10 of the Civil Procedure Rules and the suit fixed for formal proof and assessment of damages. On 17 September 2012 the registrar entered a default judgement in favour of the plaintiff against the defendant as prayed for in the plaint and set down the suit for assessment by the court of the quantum of damages. It should be noted that 14 days from 22 August 2012 would be the 5th of September 2012. The applicant filed miscellaneous application number 37 of 2013 on 23 January 2013. In the grounds of the application the applicant writes that on the 22nd of August 2012 the applicant was granted an order for extension of time by the court. Secondly the applicant/defendant was required by the order to file its defence by 5 September 2012. That the applicant had earlier on filed a written statement of defence on 7 June 2012 and the same had been served on the plaintiff/respondent on 3 July 2012. That the respondent/plaintiff being aware of the above state of affairs served the applicant with a hearing notice on 20 September 2012 for taxation of costs and the default judgement entered against the applicant an order allowing the plaintiff to proceed ex parte were therefore applied for and granted in error.
It is apparent from the applicant's pleadings that the applicant’s contention is that the default judgement was entered in error. In paragraph 13 of the affidavit in reply the deponent on behalf of the applicant asserts that the default judgement entered against the applicant and the order for the plaintiff/respondent to proceed ex parte was applied for and granted in error. It is on the basis of this clear assertion that I requested the applicants counsel to address the court on a point of law as to whether such an application can be made in light of the consent court order for the applicant to file a defence within 14 days from 22 August 2012 and the applicant having defaulted in filing the defence.
The case of Godfrey Magezi and Brian Mbazira versus Sudhir Rupaleria Supreme Court civil application number 10 of 2002 before Justice Karokora JSC supports the applicant’s contention. There was an application before a single judge of the Supreme Court for leave to extend time within which to file an appeal namelySupreme Court civil appeal number 16 of 2001 which had already been filed out of time. The applicant’s counsel had submitted that it was an application to file an appeal out of time and to validate the filing of Civil Appeal number 16 of 2001. The honourable judge of the Supreme Court considered the interpretation of rule 4 of the Supreme Court rules which envisage that an application may be granted in 4 situations namely:
Before expiration of a limited time.
After expiration of a limited time.
Before the act is done and;
After the act is done
The Court found that the act of filing the appeal had been done. The court further agreed with the principles reviewed in the authorities cited that the legal effect of extending time on documents filed out of time is to validate the appeal filed out of time. Rule 4 which is now rule 5 of The Judicature (Supreme Court Rules) Directions, gives the court discretion to extend time prescribed by the rules or by a decision of the court or Court of Appeal before or after expiration of the time. The second case on the issue is the case of Crane Finance Company Ltd versus Makerere Properties Ltd Civil Appeal number 11 of 2001 filed in the Supreme Court. In that case the Supreme Court considered a situation where the appellant filed the appeal in the Court of Appeal out of time. The appellant applied before a single judge for extension of time to lodge the appeal. The applicant's application was granted by the Court of Appeal judge and she reserved ruling giving the reasons for granting it. The wording of the application was for orders: "that time within which to file and serve the record of appeal be enlarged." Subsequently the respondent applied to have the appeal struck out for being lodged out of time. The application was considered by the full bench who struck out the appeal for being a nullity having been lodged out of time. The appellant appealed to the Supreme Court. The issue was whether enlargement of time by the single judge operated to validate the appeal which had already been lodged out of time. The court interpreted rule 4 of the rules which read as follows:
"The Court may, for sufficient reason extend the time limited by these rules or by any decision of the Court or of the High Court for the doing of any act authorised or required by these rules, whether before or after the expiration of the time and whether before or after the doing of the act; and any reference in these rules to any such time shall be construed as a reference to the time as so extended."
Rule 5 of the Judicature (Court of Appeal) Rules, which are the revised rules, are exactly the same as rule 4 quoted above. They Supreme Court held that the rule envisages four scenarios in which extension of time for doing of an act so authorised or required, may be granted. This is before expiration of the limited time; after expiration of the limited time; before the act is done; and after the act is done. The issue was narrowed down to a scenario where the act had already been done. To quote:
"We think that it is obvious that the intended effect is to bring the act within "the time as so extended". There would have been no reason to include that scenario in the rule, if an act did out of time was an incurable nullity. It is because it is not such a nullity, that under rule 12 of the same rules, the Registrar is required to accept documents filed out of time, and only to endorse them to that effect. A reading of rules 4 and 12 together clearly indicates that while a document filed out of time is voidable, it may be validated by extension of time."
The Supreme Court quoted with approval the decision in the East Africa Court of Appeal in Shanti vs. Hidocha (1973) EA 207 where the Court of Appeal for East Africa expressed the same opinion. They cited other authorities and agreed that the legal effect of extending time for filing is to validate or excuse the late filing of documents.
I have further considered the arguments of the respondents counsel and the authorities cited. I will make reference to the two authorities by which the respondents counsel sought to distinguish the above principles. At the first level is the case of Amrit Goyal vs. Harichand Goyal and 3 Others Court of Appeal Civil Application number 109 of 2004. In that case the respondent was ordered to furnish security for costs at the Court of Appeal. The respondent failed to furnish security for costs and the court noted that this was deliberate. The issue was the effect of failure to deposit further security as ordered by the Court of Appeal. The court held that the payment for security for costs was a condition precedent and had to be done before 29th of May 2004. They 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. There was no condition precedent or court order in the Babihuga case. That decision is distinguishable… We consider whether failure or refusal to comply with a court order is a technical irregularity which can be cured under article 126 (2) (e) of the Constitution and rule 2 (2) of this Court Rules.… 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 them do so at their own peril."
The authority supports the respondent’s submission that a breach of a court order is an act of contempt of court. Counsel further relied on the case of Attorney General and Uganda Land Commission versus James Mark Kamoga and another Supreme Court Civil Appeal number 8 of 2004 contained in the lead judgement of the court by Mulenga JSC to which the rest of the panel concurred. The Supreme Court considered the effect of a consent judgement and whether there were any sufficient grounds for setting it aside. It reviewed authorities on the grounds for setting aside a consent judgement and held that it is a well-settled principle that a consent decree has to be upheld unless it is vitiated by a reason that would enable court to set aside an agreement on the grounds of fraud, mistake, misapprehension or contravention of court policy. In other words the contention of the respondent is that a consent judgement has to be complied with unless it is set aside or varied by the parties.
The issues to be addressed are difficult because of the conflicting authorities. On the one hand are authorities which deal with the validation of documents already filed in court out of time after any order extending or enlarging time within which they should be filed. The second line of authorities deal with the effect of a court order and the third line of authorities deal with consent judgments and the doctrine of estoppels. As far as consent judgements are concerned, there is no direct authority on orders for extension of time. Lastly there are authorities which deal with the effect of service of a document on the opposite side albeit filed out of time.
I have carefully considered the judicial authorities from the Supreme Court and the Court of Appeal. In the two cases relied upon by the applicant's counsel, the court was interpreting rule 4 which is now rule 5 of the Judicature (Supreme Court) Rules Directions which is identical to a similar rule of the Court of Appeal. Of special mention is the unanimous decision of the full bench of the Supreme Court in the case of Crane Finance Company Ltd vs. Makerere Properties Ltd (supra). The Court interpreted the rule 4 in conjunction with rule 12 of the rules to give a context specific interpretation that the rules enable the Registrar of the Court to accept documents filed out of time and to only endorse them to that effect. In all the cases a specific rule was interpreted. Whereas the principle that a document filed on the court record out of the prescribed time can be validated by an order for enlargement of time is a principle that should be saluted by litigants, there is no indication that the Supreme Court intended that principle to apply to all cases. They interpreted the rules of the appellate courts and not that of the High Court. Rule 5 which they interpreted also applies to orders of the court to do something within a prescribed time because it permits the court to enlarge the time so ordered to do something within a prescribed time. By analogy it may have been argued that the decision should be applicable to the applicant's case scenario.
As far as the High Court is concerned, the court is dealing which two rules namely order 51 rules 6 and order 51 rule 7 of the Civil Procedure Rules. Rule 6 provides as follows:
"Where a limited time has been fixed for doing any act or taking any proceedings under these rules or by the order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."
The rule envisages just like in the Supreme Court and the Court of Appeal any time fixed or prescribed by the rules or ordered by the court. To that extent the Supreme Court decisions on validation of documents filed out of time by order extending time within which to file are applicable and relevant. However, in the applicant’s application, there was consent enlargement of time endorsed as the court order. Consents are specifically provided for under order 51 rules 7 of the Civil Procedure Rules which provide as follows:
"Enlargement of time by consent
The time for delivering, amending or filing any pleading, answer or other document may be enlarged by consent in writing of the parties or their advocates without application to the court."
The first difficulty with the consent is that the consent of the parties was not in writing but recorded by the court. In my opinion this would be a question of form and not substance since it was a consent order of the parties and entered by the court during the proceedings of hearing a formal application. By whatever name called, the order amounts to enlargement of time by consent of the parties. There may be some small controversy as to whether a consent order can be termed a written consent of the parties without application to court. I shall leave that question open and review the authorities which deal with consent judgments. Consent judgments envisage a formal matter which has been filed in court.
In this application, the court is not being asked to exercise its inherent jurisdiction which may be invoked to achieve the ends of justice and to prevent an abuse of the process of court or even avoid a multiplicity of suits and applications. The central question is the clear failure by the applicant to comply with an order of this court albeit a consent order. The situation of the applicant is that the applicant applied for enlargement of time to file a written statement of defence out of time. It is also an agreed fact that the applicant had filed that written statement of defence on court record albeit out of time. At the time of hearing the applicant's application for enlargement of time, counsel for the respondent conceded to the application on terms which were agreed upon by the applicants counsel. A consent order was therefore entered by the court. The fact that the consent order was entered under terms for the applicant to file and serve a written statement of defence within 14 days distinguishes the situation of the applicant. This is because a consent order is essentially a contract between the parties though blessed with the solemnity of a court order. It can operate as estoppels against any party to the consent who tries to assert a different position from that embodied in the consent judgement. In the applicant's situation, the respondents counsel extracted terms upon which enlargement of time would be ordered and this is what happened. The terms are contractual as between the parties and the doctrine of estoppels is a relevant factor to be taken into account. Several authorities support the contractual effect of a consent order and the doctrine of estoppels. Starting with section 114 of the Evidence Act, by agreement with the terms of the consent order, it can be argued that the applicant cannot be allowed to assert a different position. The wording of the application itself seems to imply that the applicant made an error or the court made an error to enter a consent judgement on express terms to file and serve a written statement of defence within 14 days. The applicant agreed to file and serve a written statement of defence within 14 days but never did so from 22 August 2012 until it filed this application on 23 January 2013. By that time the applicant had been served with a taxation hearing notice to tax the respondent’s bill of costs. Of course by 17 September Counsel of the respondent had obtained a default judgement and there was an order to fix the suit for formal proof of damages. What the applicant’s application intends to do is to apply to set aside the default judgement on the ground that the court made an error based on the authorities submitted in this application that enlargement of time validates a document that is already on record. After the 14 days had run out, by the terms of the consent order, there was a default position and the registrar endorsed an order in default of filing a defence.There are authorities to the effect that a consent order operates as estoppels against a party to it who tries to assert a different position from that embodied in the order as held by Lindley L.J. in Huddersfield Banking Co. Ltd vs. Henry Lister & Son Ltd (1895) 2 Ch D 273 at 280 where he said that it a good estoppels as an order of the court and: “and so long as it stands it is as good an estoppels as any other order.” Lord Denning said in Purcell v F C Trigell Ltd (trading as Southern Window and General Cleaning Co) and another  3 All ER 671in a case where a consent interlocutory order had been entered at page 675:
“It was deliberately made, with full knowledge, with the full agreement of the solicitors on both sides. It cannot be set aside.”
Buckley LJ said at 677:
“In my judgment, this order should be regarded as having a binding contractual effect on which the plaintiff was perfectly entitled to insist.”
Estoppels acts as a shield against a party trying to assert a different position from that represented or agreed to irrespective of the law that enlargement of time may validate a written statement of defence in other cases.
The other difficulty that I see with the applicant's application arises from the assertion that the defendant/respondent had already been served with a written statement of defence. Ground 4 of the notice of motion of the applicant asserts that the plaintiff/respondent had been served with a copy of the written statement of defence filed out of time on 3 July 2012. The affidavit in reply sworn by one Akampurira Jude Baks in paragraph 5 thereof asserts that the respondent has never been served. In miscellaneous application number 320 of 2012 the applicant asserts the same position in the affidavit of Dennis Oryema sworn to on the 2 July 2012 paragraphs 4, 5 and 6 is to the effect that the written statement of defence was served on 29 June 2012. There is a factual controversy as to whether the written statement of defence was served but in that particular application for enlargement of time, the respondent to this application who was also the respondent in that application never filed an affidavit in reply contesting the assertions of Mr Dennis Oryema. The application however was not tried on merits and was resolved by consent of the parties.
There is now judicial authority to the effect that where a plaintiff or defendant helps himself or herself to a pleading and is not formally served, the purpose for service has been fulfilled. This was held by Honourable Lady Justice Helen Obura in High Court civil suit number 353 of 2009 between Western Uganda Cotton Company Limited versus Dr George Asaba and three others. The learned judge held that the object of service in the case was achieved by counsel for the plaintiff’s action of helping himself to the counterclaim on the record and overruled the preliminary objection relating to service on the plaintiff of the counterclaim. In the Supreme Court judgement in Mukasa Anthony Harris versus Dr Bayiga Michael Philip Lulume Election Petition Appeal Number 18 of 2007, the Supreme Court found that the appellant had helped himself to a copy of the petition probably and had pre-empted the service and did in effect enter appearance unconditionally. The purpose for service had been achieved. In both instances the Court applied the provisions of article 126 (2) (e) of the Constitution to apply substantive justice. I followed the decision in Miscellaneous Application No 614 of 2012 which arose from Civil Suit No 455 Of 2012 Kakooza Abdullah vs. Stanbic Bank (U) Ltd. In that case the respondent objected to the application on the ground that it had not been served. The respondent however had replied to the application and attached a copy. I held as follows:
“I also agree that no question of prejudice can arise where the respondent somehow obtained the chamber summons and filed an affidavit in reply on the merits of the application. The purpose of the rule had been achieved by counsel for the respondent helping himself to the chamber summons on record. I also agree that article 126 (2) (e) of the Constitution of the Republic of Uganda enjoins this court to apply substantive justice. Substantive justice demands that since the object of service had been achieved by whatever means and the respondent had responded to the chamber summons, it would be unnecessary to strike out the chamber application for want of service. To do so would be relying on a technicality and enforcing mere compliance with the rules without regard to substantive justice that deals with the object of the rule.”
I have tried to establish whether the pleadings were completed and whether the defendant was served by looking at the pleadings. The defence that the applicant relies on has the stamp of the High Court of Uganda Commercial Division with a stamped date of 7th June 2012. The stamp for the receipt shows that Uganda shillings 1500 was paid under URA receipt number URA 0136 5353 for filing the defence. The date of the stamp is however 30th of April 2012. The defence was signed by counsel on 6 June 2012 and endorsed by the Registrar on 27 June 2012. It is clearly indicated by the registrar that: “it was filed in this registry on 27 June 2012”. Under order 9 rule 1 (1) of the Civil Procedure Rules, the date when a written statement of defence is filed is certified by a seal certifying the date of filing. Summons to file a defence is dated 18th of April 2012. The affidavit of service shows that it was received by the first defendant Orient Bank Ltd on 19 April 2012. There is no need to determine whether the stamp is genuine about the date of filing of the written statement of defence or the issue of payment as the dates speak for themselves. Apart from the affidavit of service of the written statement of defence, the plaintiff's counsel never replied to it so it cannot be concluded that they were served without a trial of questions of fact.
My conclusion is that there is an attempt by the applicant to circumvent the terms of the consent order. Non-compliance with the order entitled the respondent who is the plaintiff in the main suit to apply for default judgement under order 9 of the Civil Procedure Rules if one agrees with the terms of the consent order. It cannot be erroneous for the registrar to enter judgement in default of filing a defence because it was the agreement of the parties that such a defence would be filed and served within 14 days. The parties altered their legal rights by agreeing to specific terms for granting an order for enlargement of time. It was negotiated on terms irrespective of the merits of the application. The respondent altered its legal rights not to object to the applicant's application on specific terms. It did give up the right to oppose the applicants application for enlargement of time in exchange for the terms agreed upon. To go back on those terms after the respondent has ceded its rights should have been contractual. It cannot be done unilaterally. Alternatively the applicant could have applied to set aside the consent order on grounds that may invalidate it such as any mistake of law or fact. To act as if the consent agreement and the order based on it does not matter and to assert a different position from the specific terms of the order after failure to comply with the court order and without any explanation offends the very basic rules of courtesy and good conduct bordering on contempt. It is not a good excuse that there are judicial precedents in support of validation of a document on record by enlargement of time. In the very least the applicant ought to have brought the matter to the attention of the respondents counsel that it would treat the written statement of defence filed on court record as valid as such an assertion would have been expressly contrary to the agreed terms of the order for enlargement of time. Secondly the respondent would have dealt with the issue of service by agreement.
In those circumstances the authorities cited by the applicants counsel are not applicable to the specific circumstances of the applicant. In the premises therefore, the applicant's application for setting aside the default judgement issued by the court on 17 September 2012 and order to proceed ex parte and the consequential orders thereto cannot to be granted. The applicant’s application stands dismissed with costs.
Ruling delivered on 22nd March 2013.
Christopher Madrama Izama
Ruling delivered in the presence of:
Gimanga Sam for the Applicant
Akampurira Jude Baks holding brief for Dr. James Akampumuza for the Respondent
Hadeep Singh MD of respondent in Court
Okuni Charles: Court Clerk
Christopher Madrama Izama
22nd March 2013