Wakilii

Kabenge v Barclays Bank (U) Limited & Another (Civil Appeal 17 of 2015)

Supreme Court · [2019] UGSC 91 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, which had upheld a High Court ruling refusing to enter a default judgment
Decision
Appeal dismissed; the main suit to proceed inter partes on the merits before the High Court

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Cited — treatment unverified cited in 11 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the second appeal. Filing a defence under the Civil Procedure Rules is a two-step process: placing it on the court record and serving a duplicate on the opposite party, both within 15 days. However, where a defence is on the court record within the 15 days but cannot be served because of court delays in signing and sealing by the registrar, a default judgment will not be entered, as the delay is beyond defence counsel's control. The Court of Appeal erred in suggesting the plaintiff bears a duty to retrieve the defence, but reached the correct result. A counterclaim is a fresh suit that must be served, time running from service. Each party to bear own costs.

Facts

The appellant filed a suit against the respondents and served the plaint and summons on 1 December 2010. The respondents filed their written statement of defence and counterclaim with the court registry on 15 December 2010, within the 15-day period, but served a copy on the appellant's lawyers only on 17 December 2010, two days late. On that same day, the appellant's lawyers applied under Order 9 rule 10 of the Civil Procedure Rules for a default judgment, contending the respondents had failed to file and serve their defence within 15 days and had not sought an extension of time. The High Court dismissed the application and ordered the suit to proceed inter partes. The Court of Appeal partly allowed the appellant's appeal, confirming a 15-day limit to file and serve, but held that a defence on the court record, though unserved, prevents a default judgment. The appellant appealed to the Supreme Court.

Issues

  1. Whether the respondents duly filed a defence (written statement of defence) and whether the appellant was entitled to a default judgment where the defence was placed on the court record within 15 days but served on the plaintiff two days late.
  2. What is the effect of not serving a counterclaim on the opposite party.
  3. Whether the appellant was entitled to costs having partially succeeded in the Court of Appeal.

Orders

  • The appeal is dismissed.
  • Each party to bear their own costs in the suit, costs to abide the result of the main suit.
  • The main suit to proceed inter partes and be disposed of on the merits.

Key headnotes

Civil Procedure — Filing of Defence — Two-Step Requirement of Record and Service
Under Order 8 rules 1(2) and 19 read with Order 9 rule 1(1) of the Civil Procedure Rules, filing a defence is complete only in two steps, namely delivering the defence to the court for placement on the record and delivering a duplicate at the opposite party's address for service, both to be done within fifteen days after service of the summons.
Civil Procedure — Default Judgment — Defence on Record but Unserved Owing to Court Delay
Where, by the fifteenth day, a defence is on the court record but cannot be served on the opposite party because of unexplained court delays in signing and sealing the defence by the registrar or magistrate, the court may not enter a default judgment against the defendant, since that part of the filing process lies beyond the control of defence counsel; the delay must, however, be proved and the burden lies on defence counsel.
Civil Procedure — Service of Defence — No Duty on Plaintiff to Retrieve Defence
The burden of serving a written statement of defence rests on the defendant under Order 8 rule 19, and the practice of plaintiff's counsel periodically checking the registry cannot override the law by shifting the burden of service onto the plaintiff.
Civil Procedure — Counterclaim — Requirement of Service and Running of Time
A counterclaim is a fresh suit which must be served on the opposite party under Order 8 rule 11(1), and the fifteen days within which to file a reply run only from the date the opposite party is served, so that non-service does not infringe the right to a fair hearing.
Civil Procedure — Costs — Costs Follow the Event Subject to Discretion
Although costs ordinarily follow the event and a successful party should not be deprived of them except for good cause, the award of costs remains in the court's discretion, which may order that costs abide the result of the main suit.

Legislation cited (10)

  • Civil Procedure Rules O.8 r.1(2)
  • Civil Procedure Rules O.8 r.8
  • Civil Procedure Rules O.8 r.11(1)
  • Civil Procedure Rules O.8 r.11(2)
  • Civil Procedure Rules O.8 r.19
  • Civil Procedure Rules O.9 r.1(1)
  • Civil Procedure Rules O.9 r.5
  • Civil Procedure Rules O.9 r.10
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 28(1)

Cases cited (6)

  • Utex Industries Ltd v Attorney General (Miscellaneous Application No. 52 of 1995)
  • Uganda Revenue Authority v Uganda Consolidated Properties Services Ltd (Civil Appeal No. 31 of 2000)
  • Cropper v Smith [1884] 26 Ch.D. 700
  • Kakooza Godfrey v Uganda (Supreme Court Criminal Appeal No. 3 of 2008)
  • Ashmore v Corporation of Lloyd's [1992] 2 All ER 486
  • Butagira v Debora Namukasa (1992-1993) HCB 98
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.