Wakilii

Kabugo and Another v Bank of Baroda (U) Ltd (Civil Appeal No. 72 of 2002)

Court of Appeal · [2005] UGCA 106 · 2005 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling declining to strike out the respondent's written statement of defence
Decision
Matter remitted to the High Court to hear the substantive motion on its merits

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge erred in disposing of the appellants' application to strike out the defence in a summary manner. Although pleadings were complete, the application raised more issues than the mere failure to file annextures with the written statement of defence. The closure of pleadings was not fatal to the application, and the judge ought to have heard the substantive motion on its merits. The failure to hear the application as filed occasioned a miscarriage of justice. The Court declined to pronounce on the remaining grounds as they went to the merits, and remitted the matter to the trial court for hearing.

Facts

On 11 April 2002, the appellants filed a suit against the respondent and three others challenging instruments affecting their land at Kyadondo Block 208, Plot 1408, Kawempe Division, Kampala. On 29 April 2002, the respondent filed a written statement of defence with a counter-claim that referred to annextures which were neither attached nor filed, and the defence was served without them. On 2 May 2002, the appellants filed a Notice of Motion seeking to strike out the defence and counter-claim on grounds that they disclosed no reasonable defence, were frivolous and vexatious, and were an abuse of court process. Before the motion was heard, the respondent filed the annextures and served them. At the hearing, the respondent raised preliminary objections, including a predated supporting affidavit. The trial judge dismissed the objections but declined to strike out the defence, holding that since pleadings were complete he would set the suit down for hearing. The appellants appealed.

Issues

  1. Whether the trial judge erred in declining to strike out the defence on the ground that pleadings were complete, without hearing the substantive application on its merits.
  2. Whether the failure to hear the application as filed occasioned a miscarriage of justice.

Orders

  • Appeal allowed with costs to the appellants both in the Court of Appeal and in the court below.
  • Record remitted to the trial court to hear the substantive motion on merit.

Key headnotes

Civil Procedure — Applications to Strike Out Pleadings — Right to Be Heard on the Merits
Where an application to strike out a defence raises substantive issues beyond the mere failure to file annextures, a trial court must hear and determine the application on its merits; disposing of it summarily on the ground that pleadings are complete occasions a miscarriage of justice.
Civil Procedure — Pleadings — Effect of Closure of Pleadings on Pending Applications
The closure of pleadings is not fatal to a pending application to strike out a defence, and a court should set such an application down for hearing without regard to the fact that pleadings are complete.
Civil Procedure — Affidavits — Predated Supporting Affidavit Not Fatal
The predating of a supporting affidavit is not fatal to a motion, and an affidavit sworn by counsel does not render the motion incompetent.

Legislation cited (5)

  • Civil Procedure Rules Order 6 rule 29
  • Civil Procedure Rules Order 8 rule 19
  • Civil Procedure Rules Order 9 rule 1
  • Civil Procedure Rules Order 48 rule 1
  • Civil Procedure Rules Order 48 rule 19

Cases cited (2)

  • Noble Builders C.A No.20 of 1991
  • ZK Shah v United Africa Press Ltd [1961] EA 93
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.