Wakilii

Byenkya v Lemi and 4 Others (Miscellaneous Application No. 69 of 2021)

High Court · [2022] UGHCCD 137 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Written Statement of Defence for being filed out of time and for offending pleading rules, arising from Civil Suit No. 046 of 2015
Decision
Application dismissed; main suit to proceed to trial on the merits

Observed later treatment

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Holding

The court dismissed the application to strike out the Written Statement of Defence. Although the affidavit of service was defective for failing to record the name of the identifying person and for not proving service on all defendants, both parties had proceeded with mediation and scheduling. The court held it would be too late and too technical to raise service issues at that stage. The Written Statement of Defence was found to be neither vague nor evasive, as it specifically denied the plaintiff's allegations and stated that the suit land belonged to Bashir Ally and that the defendants occupied it as his tenants.

Outcome

Application dismissed; main suit to proceed to trial on the merits

Facts

On 1 September 2015, the applicant filed Civil Suit No. 046 of 2015 seeking declarations that the suit land constituted the estate of his late mother and that the respondents were trespassers. On 14 October 2015, the respondents filed a joint Written Statement of Defence denying the allegations and contending that the suit land belonged to Bashir Ally and that they occupied it as his tenants. The affidavit of service filed on 11 November 2015 purported to show service on 22 September 2015, but the respondents claimed they only learned of the suit on 13 October 2015 when the applicant threatened to evict them. The parties proceeded through mediation and scheduling. On 27 July 2021, nearly six years after filing the defence, the applicant filed this application seeking to strike out the Written Statement of Defence for being filed out of time and for offending pleading rules.

Issues

  1. Whether there was effective service of the summons to file a defence upon the defendants/Respondents.
  2. Whether the Written Statement of Defence was filed outside the timelines provided by law without leave of court.
  3. Whether the Written Statement of Defence filed by the defendants/Respondents offended Order 6 rules 8, 10, 30 and Order 8 rule 3 of the Civil Procedure Rules.

Orders

  • Application dismissed with costs.
  • Preliminary objections overruled.
  • The suit is to proceed on its merit.

Rules and key headnotes

Service of Process — Affidavit of Service — Mandatory Requirements
An affidavit of service must comply with Order 5 rule 16 of the Civil Procedure Rules by stating the time and manner of service and the name and address of the person identifying the person served and witnessing delivery. Failure to record the name of the identifying person renders the affidavit of service incurably defective.
Service of Process — Multiple Defendants — Personal Service Required
Where there are multiple defendants, service of summons must be made on each defendant in person unless a defendant has an agent empowered to accept service. Service on one or two defendants does not constitute effective service on all defendants in the absence of evidence of agency.
Defective Service — Waiver — Filing of Defence
The filing of a Written Statement of Defence does not constitute a waiver of the right to challenge irregularity in the service of summons. A defendant who files a defence despite defective service retains the right to raise the issue of improper service.
Striking Out Pleadings — Delay and Abuse of Process
Where both parties have proceeded with the court process including mediation and scheduling despite irregularities in service and timing of pleadings, it is too late and too technical to raise issues of service or timing at a later stage. Courts should prevent abuse of process and ensure disputes are resolved on their merits where both parties have engaged with the proceedings.
Pleadings — Written Statement of Defence — Specificity Required
A Written Statement of Defence must deal specifically with each allegation of fact and must not deny allegations evasively but must answer the point of substance. A defence that specifically admits certain allegations, denies others, and provides a substantive answer to the plaintiff's claim is neither vague, evasive, nor general.

Legislation cited (20)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.6 r.8
  • Civil Procedure Rules O.6 r.10
  • Civil Procedure Rules O.6 r.28
  • Civil Procedure Rules O.6 r.29
  • Civil Procedure Rules O.6 r.30
  • Civil Procedure Rules O.8 r.1
  • Civil Procedure Rules O.8 r.3
  • Civil Procedure Rules O.9 r.8
  • Civil Procedure Rules O.9 r.10
  • Civil Procedure Rules O.9 r.11(2)
  • Civil Procedure Rules O.5 r.16
  • Civil Procedure Rules O.5 r.9
  • Civil Procedure Rules O.5 r.10
  • Civil Procedure Rules O.1 r.3
  • Civil Procedure Rules O.1 r.10(2)
  • Civil Procedure Rules O.12 r.3
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.2
  • Judicature Act s.33

Cases cited (11)

Full judgment

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Byenkya v Lemi and 4 Others (Miscellaneous Application No. 69 of 2021) [2022] UGHCCD 137 (9 September 2022)
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.