THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 1073 OF 2013

ARISING FROM HCCS NO 223 OF 2013

NAMATOVU SUSAN}.........................................................................APPLICANT

VERSUS

BAGUMA AUGUSTINE}....................................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Defendant filed Miscellaneous Application No. 1073 arising from HCCS No. 223 of 2013 for amendment of her written statement of defence and counterclaim and for the costs of the application to be provided for. The grounds of the application are firstly that the Respondent sued the Applicant in the main suit and the Applicant instructed her advocate to file a written statement of defence and counterclaim. However the defence and counterclaim filed by the Applicant’s lawyers Messieurs Patrick Furah and Company Advocates had errors and omissions. In order to determine the issues in controversy between the parties, her application to amend the written statement of defence and counterclaim ought to be allowed. Finally the Applicant avers that the Respondent will not be prejudiced if the amendment is allowed.

The application is supported by the affidavit of the Applicant herself which repeats the grounds of the chamber summons. She deposes that the defence and counterclaim filed by her former advocates has errors and omissions and the Respondent would not be prejudiced if her attached proposed amended written statement of defence and counterclaim are allowed. On the ground of her belief based on information given to her by her current Counsels Messieurs Asiimwe Namawejje and Company Advocates, the Applicant deposed that amendments can be allowed at any stage of the proceedings before judgment.

The affidavit in opposition to the application is that of the Respondent/Plaintiff. He deposes that the application was an afterthought designed to cause injustice and whittle down the basic tenets of pleadings. Secondly the intended amended written statement of defence and counterclaim would prejudice his interest and cause injustice. He further deposes that the written statement of defence reveals that the transaction involved in the suit was a purchase of a Tractor Head and partial payment thereof and it was not a transaction of hire. On the basis of advice from his advocates, he deposes that hire and purchase are totally different and incompatible transactions. Secondly the intended amended written statement of defence and counterclaim are misconceived and amount to an abuse of the process of court among other things. Lastly the Applicant does not have an automatic right to amend her pleadings.

At the hearing of the application the Respondent’s Counsel intimated that he had points of law which constitute a complete bar to hearing the application for amendment. By consent of Counsel it was agreed that the court would be addressed in written submissions on the intended preliminary objections.

The Applicant was represented in the proceedings by Counsel Wakabala Susan while the Respondent was represented by Counsel Kibilango Peter.

The Respondent’s preliminary objections are as follows:

1. That the Defendant’s application should be struck out for want of service and lack of foundation and also on the ground that the counterclaim was improperly before the court.
2. Secondly the counterclaim should be struck out with costs for payment of insufficient court fees.

On the basis of the above, the Respondent’s Counsel formulated three issues for consideration of the court. The first issue is whether non-service of the application on the Respondent renders it a nullity. Secondly whether or not the Defendant’s counterclaim is improperly before the court? Thirdly what remedies are available to the parties?

Counsel submitted that failure to serve the application on the Respondent is not a mere irregularity but rather goes to the root of any conception of fair civil procedure in litigation. Order 12 rule 3 (2) provides that service of an interlocutory application to the opposite side should be made within 15 days from the filing of the application. The rule uses the word "shall" which makes compliance to what is directed therein mandatory. The Respondents Counsel cited the case of Bamanye Fazil vs. Nankunda Rose CA 7 of 2009 [2009] 2 HCB 20, a ruling of honourable Justice Bamwine for the holding that failure to serve court process renders subsequent court proceedings a nullity. He submitted that the Defendant’s advocates never served the application which action amounted to an abuse of court process. In the premises and on the question of remedies available to the parties, the court should be pleased to strike out the application for amendment with costs.

On the second issue Counsel submitted that the counterclaim was improperly before the court and ought to be struck out with costs unless otherwise the amount in deficit and costs so far incurred by the Plaintiff is paid by the Defendant within a period that this honourable court may order.

Counsel relied on rule 6 of the Judicature (Court Fees, Fines and Deposit) Rules which provides that no document in respect of which fees are payable should be used in any legal proceedings unless it has been initiated as provided for in the rule 4 of the rules or unless the court is otherwise satisfied that the proper fees in respect of the document has been paid. It was the duty of the court to enforce compliance with revenue law according to the case of Haridas Mathuradas Vagani T/A Vagani and Company Lakhani Ltd [1949 – 50] 16 and 17 EACA 5 for the judgment of Graham Paul CJ of Tanzania that it is the duty of the court to enforce revenue statutes. The assessment of court fees is done by court accountants and the honourable court should take note of modern practices on the part of some parties or advocates who alter the value of the subject matter of the suit by lowering it for purposes of avoiding the payment of court fees on the true value. The subject matter of the counterclaim estimated by the Defendant is about 180,000,000/= and Uganda shillings 7500 which had been paid for both the counterclaim and written statement of defence was an under payment. On that ground the counterclaim should be struck off with costs for non-payment of fees.

On the third issue Counsel prayed that costs are awarded to the Plaintiff.

In reply the Defendants Counsel submitted on the question of non-service that the Plaintiff’s Counsel participated in the proceedings by filing an affidavit in reply in respect to the application and the Defendant/Applicant filed an affidavit in rejoinder thereto. In those circumstances the Plaintiff had helped himself to the pleadings in the application and had suffered no prejudice. Counsel asked the court to invoke the provisions of article 126 of the Constitution of the Republic of Uganda to apply substantive justice without undue regard to technicalities and disallow the Plaintiff’s prayer to have the Applicants application struck off for non-service. Counsel supported the submission with the Supreme Court authority of Mukasa Anthony Harris versus Baiga Michael and another Election Petition Appeal No 18 of 2007 where a similar matter was considered.

On the second question of whether the counterclaim ought to be struck out for payment of insufficient fees, the Defendant’s Counsel submitted that assessment was made by the court. The court has discretion in any case to permit the litigant to pay the fees in deficit. He relied on the case of Amama Mbabazi and Electoral Commission versus Garuga James Musinguzi Election Petition Appeal Number 17 of 2002. In that case it was held that the court has discretionary powers to allow a party to pay fees in the event that insufficient fees had been paid. In the premises the Defendants Counsel prayed that the court disallows the preliminary objections.

In rejoinder the Plaintiff’s Counsel reiterated earlier submissions and further submitted that the filing of an affidavit in reply did not bar the Plaintiff from raising a point of law in objection to the failure to serve at any stage of the proceedings. He relied on the case of Julius Maganda versus National Resistance Movement High Court miscellaneous application number 154 of 2010 for the proposition that matters of law can be raised at any time of the proceedings and may even be pointed out or raised by the court on its own motion. He further supported his submission that the rule on service of applications was mandatory with additional authorities. He contended that the role of the court is to give effect to a statute according to the wording and intention therein. On this point Counsel relied on the case of Duport Steels Ltd versus Sirs and Others [1980] 1 WLR 142 at 157. Counsel contended on the basis of the authority that where a statute is clear and unambiguous, it was mandatory on the part of the Defendants Counsel to serve the miscellaneous application which he never did. After citing several other authorities Counsel concluded that failure to comply with a mandatory statutory requirement was fatal. Secondly it amounted to an illegality and the case of Makula International Ltd versus His Eminence Cardinal Nsubuga WAMALA and another [1982] HCB 11 at page 15 was applicable.

Ruling

I have carefully considered the written submissions, the authorities cited and the affidavit evidence.

The first point arises from Order 12 rule 3 (2) of the Civil Procedure Rules which provides:

"Service of an interlocutory application to the opposite side shall be made within 15 days from the filing of the application…”

The Applicants Counsel does not dispute the fact that no service had been made on the Respondent within the 15 days prescribed under the above rule. The Applicants Counsel agrees and only submits that the Respondent was not prejudiced by non-service because the Respondent had helped himself to a copy of the application and had filed a reply thereto. The evidence is that the Applicant’s application was filed on 17 December 2013. It was issued by the registrar of this court on 18 December 2013. Subsequently and on 22 January 2014 the Respondent filed an affidavit in reply. It must be noted that the period between 24 December and 7th of January in the following year with both dates inclusive shall not be reckoned in computing anytime appointed or allowed by the rules for delivering or filing any pleadings. The Applicant practically had six days in 2013 within which to serve. After 7 January 2014 the Applicant had another nine days to serve the application.

The Applicant would have been out of time to serve the application by 22 January 2014. However, the Respondent helped himself to the application. Paragraph 1 of the affidavit of the Respondent in reply to the application deposes as follows:

"That I have read the Summons in Chambers, the accompanying affidavit and annexure attached thereto and I found out that the intended Written Statement of Defence and Counterclaim is wholly at variance with Written Statement of Defence and Counterclaim and wholly changes its essential character."

In other words the Respondent deposed that he had received the summons and had read it and formulated a reply. Similar objections for want of service or to service out of time have been considered by this court before. I will refer to a few authorities.

In HCCS No 353 of 2009 Western Uganda Cotton Company Limited versus Dr George Asaba and 3 Ors, Honourable Lady Justice Irene Mulyagonja on the issue of whether the Counter Defendants were duly served held that the time within which a Defendant should file a defence is 15 days after service of summons. It is the duty of the counterclaimant to serve the written statement of defence together with the counterclaim on the Plaintiff. According to Mulla on the Code of Civil Procedure volume 2 and 17 edition at page 231 the object of service of summons is to enable the Defendant have notice of the institution of the suit in due time before the date fixed for the hearing. The honourable Judge held that the Plaintiff had not in his submission pointed out any prejudice or injustice that would be occasioned to his client by the Defendant’s omission to serve as he had helped himself to a copy and filed a reply. She held that no injustice had been occasioned to the Plaintiff and the omission to serve could be treated as an irregularity which could be cured under article 126 (2) (e) of the Constitution of the Republic of Uganda. 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. In the Supreme Court case of Mukasa Anthony Harris versus Dr Bayiga Michael Philip Lulume Election Petition Appeal Number 18 of 2007. Honourable Justice Tsekooko JSC who delivered the lead judgment concurred with the trial judge. In that appeal one of the grounds was that the learned Justices of Appeal erred in law and fact in failing to find that the petition was a nullity as there was non-service of the notice and the petition. The honourable judge concluded that the appellant had helped himself to a copy of the petition probably within the prescribed time. He had pre-empted the service and did in effect enter appearance unconditionally. He held that there was no material upon which the court could conclusively say that the appellant did not get the petition within the prescribed time of seven days and that article 126 (2) (e) of the Constitution would be applied.

Similarly in this case there is no material on court record to suggest that the Respondent had not helped himself to the application within the period limited for service thereof. The rationale of the ruling is very clear. The object of the rule for service of the application on the Respondent is to make the Respondent aware of the institution of the application and to enable him respond to the averments or claim therein. By helping himself or herself a Respondent gets notice of the institution of the application and there is not justifiable ground to insist that the Applicant should serve them after he or she got such notice as aforesaid through self help. The request for service after notice of the pleadings would be a technicality because in either case the object of the rule has been achieved by the Respondent obtaining a copy. Consequently service thereafter would be a mere formality and not achieve anything more which the Respondent has not already obtained. In another similar objection in HCMA No 614 of 2012 (Arising From HCCS No 455 of 2012) Kakooza Abdullah vs. Stanbic Bank (U) Ltd, I held that Order 12 rule 3 (2) of the Civil Procedure Rules is directory and not mandatory in the following words:

“Order 12 rule 3 (2) of the Civil Procedure Rules on the other hand does not however prescribe what would happen if service is not effected within 15 days. It does not deal with a situation where a defence is filed. Furthermore order 51 rules 6 of the Civil Procedure Rules gives the court power to enlarge time fixed for the doing of any act or taking any proceedings under the rules. Consequently it is my humble ruling that order 12 rule 3 (2) of the Civil Procedure Rules is not mandatory but directory as held in a similar situation in the case of Mukasa Anthony Harris (supra) by the Supreme Court. 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 no legally acceptable ground for departing from my earlier ruling quoted above and the first ground of objection is accordingly overruled.

On the second ground of objection both Counsel are in agreement in their written submissions that fees can be subsequently paid if the court so orders. I agree that they were insufficient fees and the Respondent has not challenged the Plaintiff Counsel’s submission that as a matter of fact insufficient fees were paid for the counterclaim. The file is accordingly forwarded to the accounts section of the court for assessment of fees of the counterclaim and proceedings in the counterclaim are stayed until any assessed fees due have been paid. A counterclaim is a separate suit and attracts the same fees a plaint. The rest of the suit shall proceed and is not affected by the order of stay of the counterclaim. The question of assessment and payment of any fees in the counterclaim is accordingly referred to the registry for management and payment of any due fees to be assessed.

The first objection is overruled with costs. The second objection is sustained by does not result in striking out of the counterclaim. Consequently the costs of the second objection shall abide the outcome of the main suit. In case the Applicant fails to pay fees for the counterclaim, the counterclaim shall be struck off the record. Fees shall be paid within 14 days from the date of assessment of any fees due on the counterclaim.

Ruling delivered in open court this 4^th day of April 2014

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Wakabala Hebert Counsel for the Applicant

Kibilango Peter Counsel for the Respondent

The Respondent present in court

Applicant is present

Charles Okuni: Court Clerk

Christopher Madrama Izama

Judge

4^th April 2014