Nile Breweries Limited v Bruno Ozunga t/a Nebbi Boss Stores (HCT-00-CC-CS-0580-2006) [2008] UGCommC 23 (28 March 2008)

By the ruling of this Honourable Court delivered on 14^th December 2007 the defendant was granted leave to amend his Written Statement of Defence and Counter claim. The Amended Written Statement of Defence and Counter Claim was ordered to be filed within 7 days from the date of the ruling. Following that ruling an Amended Written Statement of Defence and Counter Claim was filed on 21^st December 2007 and endorsed by the Deputy Registrar of this Court on 3^rd January 2008.

When this suit came up for Scheduling on 6^th March 2008 Mr. Okalang, Counsel for the Plaintiff, raised a preliminary point of law that up to that date the plaintiff had not been served with the Amended Statement of Defence and Counter Claim. Relying on Order 6 rule 23 and Order 8 rule 19 of the Civil Procedure Rules Counsel argued that it is after service that filing of defence is completed. He therefore prayed for a declaration that no Amended Written Statement of Defence had been filed thus no defence on record. And the suit having been filed as a summary suit he prayed for judgment.

Order 6 rule 23 CPR provides:

“Whenever any pleading is amended the amended document shall be filed within the time allowed for amending the pleading, and where the filing occurs before the date specified in the summons for the appearance of or the entering of appearance by the defendant, then a duplicate of the amended document shall be served upon the opposite party in the manner provided for the service of a summons, but where the amended document is filed after that date, a duplicate of the amended document shall be delivered to the opposite party by the party filing.”

In the instant case the ruling was delivered on 14^th December 2007. The Amended Written Statement of Defendant was ordered to be filed within 7 days from the date of the ruling. The amended Written Statement of Defendant was filed on 21^st December 2007. It was therefore filed within the time allowed for amending the pleading. However by an earlier ruling in Miscellaneous Application No. 910 of 2006, delivered on the 19^th February 2007 the defendant was granted leave to file a Written Statement of Defence within 15 days. He had so done on 12^th March 2007. Therefore the Amended Written Statement of Defence was filed after the date allowed for filing a Written Statement of Defence. In the circumstances Order 6 rule 23 above required the defendant to deliver a duplicate of the amended document to the plaintiff. The plaintiff contends that this had not been done to date.

Mr. Okalang contended that filling of the Amended Written Statement of Defence had not been completed, the same having not been served on the plaintiff. Counsel argued that Order 6 rule 23 should be read together with Order 8 rule 19 CPR. It states:-

The above provision is in mandatory terms. I therefore agreement with the submission of the plaintiffs Counsel that for any pleading filed subsequent to the filing of a defence, filing is not completed unless the above two events are satisfied. In the instant case the Amended Written Statement of defence and Counter claim was delivered for placing upon the court record on 21^st December 2007 and placed on court record on 3^rd January 2008 However there is no evidence that the same had been delivered to the plaintiff.

Mr. Michael Okecha for the defendant argued that Order 8 rule 19 does not provide for a time limit within which an Amended Written Statement of defence should be filed and Order 6 rule 23 does not provide time within which an amended pleading should be served on the opposite party.

However, Order 6 rule 25 states:

If order 6 rule 23 is read together with Order 8 rule 19, which it should in the instant case, then pursuant to Order 6 rule 25 both the delivery of the Amended Written Statement of defence to the Court for placing upon the record and the delivering of the duplicate thereof to the plaintiff must have been done within the time limited by the order, that is 7 days from the date of the ruling. The period had long expired without the Amended Written Statement of defence being delivered to the plaintiff. The two events cannot be severed. There is no application for extension of the period.

From the bar, Counsel for the defendant informed Court that he had agreed with Counsel for plaintiff that the Amended Written Statement of Defence be sent by postage to the plaintiff’s Counsel who is based in Jinja. Mr. Okalang admitted having so agreed but denied receipt of the pleading. Section 102 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See also section 103 of the same Act. The defendant has not adduced any evidence of postage of the duplicate of the Amended Written Statement of Defence to Counsel for the plaintiff. In the premises I find that there has not been delivery of the Amended Written Statement of Defence to the plaintiff. The defendant has failed to comply with the provisions of Order 8 rule 19 CPR. The process of filing the Amended Written Statement of Defence has not yet been completed and the period within which to do so has already expired . So I accordingly find that no Amended Written Statement of Defence and Counter Claim has been filed as ordered by this Court.

The amendment so ordered was to address the defects in the Written Statement of Defence and Counter-Claim. Without the Amendments ordered the defects remain uncurred. All this is due to laxity of Counsel for the defendant. In such circumstances I have no alternative but under Order 5 rule 30 of the Civil Procedure Rules to strike out the defendant’s Written Statement of Defence for being defective.

As a result this suit having been filed under summary procedure judgment is hereby entered in favour of the plaintiff, as prayed in the plaint in the sum of Shs205,258,424/= plus costs of the suit.

Uganda: Commercial Court

Nile Breweries Limited v Bruno Ozunga t/a Nebbi Boss Stores (HCT-00-CC-CS-0580-2006) [2008] UGCommC 23 (28 March 2008)