THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
LAND DIVISION
MISCELLANEOUS APPLIVATION NO. 368 OF 2023
(ARISING FROM CIVIL SUIT NO. 0130 OF 2009)
MAYENGO MOSES :::::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
JULIUS .F. BITATULE ::::::::::::::::::::::::::::::::: RESPONDENTS
BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA
RULING.
Introduction:
1. This was an application by notice of motion brought under Article
126 of the Constitution of Uganda, Section 96 & 98 of the Civil
Procedure Act, Section 14, 33 & 39 of the Judicature Act Cap 13,
and Order 51 rule 6 and Order 5 rules 1 & 3 of the Civil Procedure
Rules (CPR) for orders: -
i) That the written statement of defence filed by the
Applicant is validated or in the alternative leave is granted
to the Applicant to file a written statement of defence out
of time.
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ii) That the costs of this application be provided for.
Background;
2. The Respondent/plaintiff filed HCCS No. 130 of 2009. Before the
Applicant could file a written statement of defence, the Applicant
and the Respondent entered into a consent settlement to which
the Applicant who was unrepresented at the time, avers to have
been reliably informed by the respondent’s counsel that it had
disposed of the suit and hence he needed not to take any further
steps in the matter.
3. Ten years down the road, the Consent was set aside by Godfrey
Kirumira vide MA No. 1165 of 2019 and the suit was re-opened to
be heard and disposed of on its merits.
4. The matter was fixed for hearing, however the
Applicant/defendant had not filed a defence within the timelines
stipulated by law, he therefore seeks to have the defence filed on
record validated or in the alternative, this Honourable Court
grants him leave to file his Written statement of defence out of
time.
Applicant’s evidence;
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5. The grounds of the application are contained in the affidavit in
support of the application deponed by MAYENGO MOSES the
Applicant, and are briefly that: -
i) That upon filing HCCS No. 130 of 2009, the
respondent/plaintiff and his Advocates approached me and
convinced me to settle the dispute by way of a compromise/
executing a consent judgement on the 30th day of June 2009
as opposed to filing a written statement of defense.
ii) That the respondent and his lawyers had already sold the
suit property to Kirumira Godfrey.
iii) That the consent judgement was set aside in 2019 by
Kirumira Godfrey and the suit was re-opened to be heard on
its merits.
iv) That it is only just and fair that the applicant is permitted to
defend himself in HCCS No. 130 of 2009.
Respondent’s evidence;
6. The application is opposed to by an affidavit in reply deponed by
JULIUS F. BITATULE the respondent which briefly states as
follows;
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i) That the consent judgement was entered willingly and in good
faith and there was no misrepresentation whatsoever.
ii) That after the consent judgement was filed there was no need
for the applicant to file a written statement of defense.
iii) That whereas the Consent Judgcment/Decree was endorsed by
court, it was later set aside by Hon. Justice John Eudes
Keitirima on 23rd April, 2021 vide Miscellaneous Application No.
1165 of 2019 which culminated into the reinstatement of High
Court Civil Suit No. 130 of 2009.
iv) THAT since the ruling and Order of review was passed without
notice to the parties including myself, I filed my appeal against
the same order vide Miscellaneous Appeal No. 1741 of 2021
v) THAT my advocates have since filed Misc. Application No. 18 of
2022 in the Court of Appeal seeking leave to file the appeal out
of time and validate the Notice of Appeal filed out of time and
the letter requesting for proceedings.
vi) THAT the appeal should be disposed of first before proceeding
with civil No. 0130 of 2009 since the appeal is likely to succeed
Representation;
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7. There was no representation from the Applicant whereas the
Respondent was represented by Mr. Mulema Mukisa of M/s KSMO
Advocates. Both parties filed their affidavits and written
submissions which I have considered in the determination of this
application.
Issues for determination;
i) Whether the applicant’s written statement of defence
should be filed and or be granted leave to file the same
out of time?
Resolution and determination of the issue;
8. The law has created gates to justice through which people seeking
the same go through to get redress. The gates open and close at
given intervals in accordance with the rules of procedure. In rare
circumstances gates which are closed may be opened to allow in a
late entrant. (See; Tushabe Chris vs Co-operative bank ltd (in
receivership/statutory liquidation) Civil Application No.08 of
2018)
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9. Under these circumstances, the Applicant must have been
impeded from filing their respective pleadings either by sufficient
reason and must not be guilty of any dilatory conduct. (See;
Guliano Gariggio vs Claudio Casadio SCCA No. 1 of 2013 and
Narittam Bhatia & anor vs Boutique Shazim ltd CACA No. 3
of 2017 and Shanti vs Hindocha & othrs [1973] EA 207 at
2019)
10. In the instant application, upon filing HCCS No. 130 of 2009,
the parties entered into a consent settlement to which the
Applicant was reliably informed that the consent settlement would
dispose of the suit hence the applicant did not file a defence in the
same.
11. The consent judgement was later on set aside in 2019 by
Kirumira Godfrey vide MA No. 1165 of 2019 and the suit was
reopened for hearing and the applicant was accordingly served
hearing notices.
12. A defendant who has not filed a written statement of defence
does not have audience in Court (See; Komax Motor Vehicle
Company limited & 2 others vs Idha Micheal HCMA No. 15 of
2023).
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13. The Applicant was under bonafide belief that the suit had been
wholly disposed off upon execution of the consent settlement.
However, the same was set aside after ten (10) years and the
applicant only got to know after the suit was fixed for hearing.
14. I find that the Applicant is not guilty of any dilatory conduct
and has sufficient reasons for validating his written statement of
defence and or filing the same out of time.
15. This Court is vested with powers to extend time and validate
pleadings even when there are limits created by the statute. (See;
Vegol (U) Limited v Godfrey Sentongo MA No. 72 of 2020)
16. In my view, this is one of the rare cases where the Applicant
should benefit from the unfettered discretional powers of Court
and in order not to contravene the principles of a fair hearing as
enshrined under Article 28 of the Constitution of the Republic of
Uganda 1995.
17. Therefore, for these reasons, it is in the interest of justice that
the Applicant’s written statement of defence filed in this Honorable
Court is validated to grant him audience in this Court.
18. I therefore allow the application on the following orders : -
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i) The Applicant’s written statement of defence filed in this
Honourable Court is hereby validated.
ii) The costs of this application shall be in the main cause.
I SO ORDER.
…………………………..
NALUZZE AISHA BATALA
JUDGE
30th/1/2024
