Wakilii

Amritlal & Another v Sakina & 4 Others (Civil Suit 118 of 2017)

High Court · [2023] UGHC 224 · 2023 Preliminary Objections Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in a civil suit
Decision
1st Defendant struck off; suit to proceed exparte against 1st, 2nd, 3rd and 4th Defendants; matter to continue against 5th Defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: (1) The Written Statement of Defence of the 1st, 2nd and 3rd Defendants was struck off for non-compliance with the court's 2020 order to amend pleadings, with leave denied to extend time due to lack of good cause; plaintiffs allowed to proceed exparte. (2) The suit against the 1st Defendant was a nullity as she had died in 2005 before suit was filed in 2017; 1st Defendant struck off with no substitution permitted. (3) The 4th Defendant failed to file a defence despite service; plaintiffs allowed to proceed exparte.

Outcome

1st Defendant struck off; suit to proceed exparte against 1st, 2nd, 3rd and 4th Defendants; matter to continue against 5th Defendant

Facts

The Plaintiffs, suing through an attorney, filed Civil Suit 118 of 2017 against five Defendants. On 18 June 2020, Justice Eva Luswata ruled that the Written Statement of Defence filed by the 1st, 2nd and 3rd Defendants was not compliant with the Civil Procedure Rules and ordered them to file an amended defence. By February 2023, no compliant defence had been filed. The 4th Defendant never filed any defence despite being served. During the hearing on 22 February 2023, the Plaintiffs raised preliminary objections seeking to strike off the non-compliant defence and proceed exparte against the 4th Defendant. The Defendants' counsel raised a preliminary objection that the 1st Defendant had died in 2005, before the suit was filed in 2017. Counsel for the 1st, 2nd and 3rd Defendants stated he had only recently taken over the file following the death of the previous advocate, Counsel Tebusweke, in June 2021, and sought extension of time to comply with the 2020 order.

Issues

  1. Whether the 1st, 2nd and 3rd Defendants' Written Statement of Defence should be struck off in regard to the order in Justice Eva Luswata's Ruling of 18 June 2020.
  2. Whether the suit should be struck off the Court record as against the 1st Defendant and whether the 1st Defendant can be substituted with a legal representative.
  3. Whether the suit should proceed exparte as against the 4th Defendant.

Orders

  • The Written Statement of Defence in respect of the 1st, 2nd and 3rd Defendants is struck off the court record with costs.
  • The Plaintiff is allowed to proceed exparte against the 1st, 2nd and 3rd Defendants.
  • The 1st Defendant is struck off the court record.
  • The matter will proceed against the remaining Defendants (2nd, 3rd, 4th and 5th).
  • The application for substitution of the 1st Defendant is denied.
  • The Plaintiff is allowed to proceed exparte against the 4th Defendant.

Rules and key headnotes

Civil Procedure — Pleadings — Compliance with Rules — Striking out non-compliant defence
Where a court orders a party to file an amended pleading in compliance with the Civil Procedure Rules and the party fails to do so within a reasonable time, the court may strike off the non-compliant pleading and allow the opposing party to proceed exparte.
Civil Procedure — Extension of Time — Good Cause — Negligence of Counsel
For an application for extension of time to be granted, the applicant must demonstrate good cause. Instructions to a partnership of lawyers go to the firm and not to individual advocates; the death of one partner does not excuse the firm's failure to comply with court orders, and prolonged inaction by the firm constitutes negligence that does not constitute good cause for extension of time.
Civil Procedure — Parties — Suits Against Deceased Persons — Nullity
A suit commenced against a person who is already dead is a nullity and incurably defective. Such a suit cannot subsist and the deceased party must be struck off the court record. Substitution under Order 24 of the Civil Procedure Rules does not apply where the suit was instituted after the death of the party.
Civil Procedure — Exparte Proceedings — Failure to File Defence
Where a defendant has been properly served with summons but fails to file a defence within the time prescribed, the plaintiff is entitled to proceed exparte against that defendant under Order 9 rule 10 of the Civil Procedure Rules.

Legislation cited (12)

Cases cited (5)

  • Tight Security Ltd v Chartis Uganda Insurance Company Limited and Another (High Court Miscellaneous Application No. 8 of 2014)
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)
  • Batemuka v Anywa (1977) HCB 77
  • Babubhai Dhanji Pathak v Zainab Mrekwe (1964) EA 24
  • Okodoi George and Obwaret Vincent v Okello Opaire Sam (High Court Miscellaneous Application No. 143 of 2016)

Full judgment

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Amritlal & Another v Sakina & 4 Others (Civil Suit 118 of 2017) [2023] UGHC 224 (19 April 2023)
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.