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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-MA-0916 OF
2004
(Arising from HCT-00-CC-CS-0877-2004)
CENTURY ENTERPRISES LTD ::::::::::: APPLICANT/DEFENDANT
VERSUS
GREENLAND BANK (IN LIQUIDATION)
::::::::::::::::: RESPONDENT/PLAINTIFF
BEFORE: THE
HONOURABLE MR. JUSTICE YOROKAMU BAMWINE
R U L I N
G:
Upon this case coming up for hearing, counsel for the
Applicant, Mr. Samuel Mugisa, raised a short and precise preliminary point of
law. He argued that the application was filed under 0.33 rr 3 and 4 of the
Civil Procedure Rules and that as such, the Applicant
was obliged to serve the
Respondent with the notice and the supporting affidavit within the time
stipulated under 0.5 r 1. That
the Notice of Motion issued on 8/12/2004 and
served on 3/2/2005 was out of time. He invited Court to have it struck out and
order
that Judgment be entered for the Plaintiff as prayed in the
plaint.
Mr. Moses Kuguminkiriza for the Applicant does not share that
view. According to him, service was indeed effected after 21 days.
However,
under 0.33, no time limit is imposed for service of documents on the other
party. The rule, so argues counsel, does not
state the period within which
service must be effected. In his view, once a matter is brought under 0.33, the
time frames stipulated
under 0.5 r 1 do not apply.
I have very carefully
addressed my mind to the arguments of both counsel.
Briefly, the
Respondent herein filed HCCS No. 877/2004 to recover a sum of Shs.12,778,645-,
interest and costs of the suit. It is
claimed that the Defendant in that case
operated an account with the Plaintiff bank (now in liquidation). That in
February 1998,
the Defendant was granted an overdraft facility of Shs.5m and in
March 1998 another one of Shs.3m. That at the time of the closure
of the bank
in 1999, the outstanding balance on the Defendant’s A/C was
Shs.5,862,959-. Hence the claim of Shs.12,778,645-
which includes interest up
to the date of filing. Under 0.33 r 4, all that the Defendant has to show is
that there is a triable
issue of fact or law. The Defendant can do so by filing
an application for leave to appear and defend the suit. The application
takes
the form of a Notice of Motion. There is no stated procedure under that order
for service of such application on the opposite
party. However, under 0.45 r 2,
all such orders, Notices and documents (emphasis mine) shall be served in
the manner provided for the service of summons. It is noteworthy that the word
used in the order is ‘shall’. In the absence of any other rule to
the contrary, this takes us to 0.5 which governs issue
and service of
summons.
From the above, Mr. Kuguminkiriza’s argument that service
of process under 0.33 is not governed by 0.5 r 1 cannot be sustained.
The
contentions herein are, first, that the application for leave to appear and
defend was not served on the Applicant within 21
days from the date of issue as
required by the rules, and, secondly, that there was no application to extend
time within which to
effect service of the summons. From my analysis above, the
two contentions above cannot be faulted. The time frames stipulated
in 0.5 r 1
were certainly the mischief, or the unsatisfactory state of affairs, which the
amendment to the Rules in 1998 was meant
to remedy. It was targeted at people
who after getting summons for service on the opposite party just went to sleep
there by contributing
to unnecessary build up of case back log. Clearly,
therefore, the law is on the Respondent’s side. It was imperative that
in
order to comply with the rules, an application had to be made to Court within 15
days from the expiry of the 21 days, showing
sufficient reasons, to extend the
time within which to serve the notice of motion. So much for the
law.
Mr. Mugisa asked Court to order the application struck out, as there
was non-compliance with the mandatory provisions of the rules
of procedure. Mr.
Kuguminkiriza did not make any prayer in mitigation, believing as he certainly
did that the law was on his side.
The rules of procedure enjoin this Court to
administer law and equity concurrently. I’m cutely aware that Article 126
of
the Constitution enjoins Courts to administer substantive justice without
undue regard to procedural technicalities. This law, however,
did not intend to
do away with the rules of Civil Procedure. It was not meant to be a magic wand
in the hands of defaulting litigants.
It should not be used to side step rules
of procedure: Utex Industries Ltd –Vs- Attorney General SCCA No.
52/95.
This may explain, perhaps, why Mr. Kuguminkiriza did not rely
on it. In Nassanga –Vs- Nanyonga [1977] HCB 318, however, the
Court held,
and I agree, that the Civil Procedure Rules are a guide to the orderly disposal
of suits and a means of achieving justice
between the parties. The same should
not be used to deny a party desirous of contesting.
I have made a glimpse
into the impugned application. The Applicant states therein that it is not
indebted to the Respondent as claimed
as the Respondent recovered all its money
by way of sale of the security, i.e. Motor vehicle No.435 UAK. The Respondent
denies sale
of that vehicle.
In view of the correspondence between the
parties after the institution of the suit whereby the Respondent’s claim
is totally
denied, and considering the manner in which the bank was taken over
which may have affected custody of documents, the Respondent
cannot have
reasonable grounds for believing that the Applicant has no defence at all to the
suit.
While therefore there is merit in the Respondent’s point of
law regarding service of the notice of motion, I would hesitate
to allow this
procedural lapse to over shadow the substantive concerns of the Applicant. In
the spirit of Article 126 (2) (e) of
the constitution, I’m inclined to
disregard the irregularity. I have come to this conclusion because in a case
such as this,
while there is, on the one hand, the necessity for the rules to be
followed, there is, on the other hand, the need for the Courts
to control their
proceedings and not to be unreasonably inhibited by the rules of procedure. The
idea is that the administration
of justice should normally require that the
substance of all disputes be investigated and decided on their merits, and that
errors
and lapses should not necessarily debar a litigant from the pursuit of
his rights: Banco Arabe Espanol –Vs- Bank of Uganda SCCA No.
8/1998.
This, of course, does not mean that rules of procedure should
be ignored with impunity. Far from that. Each case must, of course,
be decided
on the basis of its own circumstances.
In the instant case, while the
lack of adherence to the rules has been noted with the seriousness it deserves,
the circumstances of
the case require that the same be overlooked for the sake
of administering the greater interests of justice. In the result, the
point of
law is accepted in part. I invoke the powers of this Court under Article 126 of
the Constitution, section 4 of the Judicature
(Amendment) Act, 2002 and S.98 of
the Civil Procedure Act which enables the Court to make such orders as may be
necessary for the
ends of justice, to grant the Applicant/Defendant leave to
defend the suit as prayed. The statement of defence shall be filed within
seven
(7) days from the date of this order.
As regards costs, although they
follow the event, in view of my observations above regarding Applicant’s
non adherence to the
rules, the Respondent shall have the costs of this
application in any event.
It is so ordered.
Yorokamu Bamwine
J U D G E
10/05/2005
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.RTF of original document