Wakilii

Central Electricals International Ltd and Another v Sebide (Miscellaneous Application No. 625 of 2011)

High Court · [2012] UGHC 466 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out amended written statement of defence and counterclaim filed out of time
Decision
Application dismissed with costs; time for filing extended and amended pleading validated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that documents are only validly filed upon payment of court fees. While the amended defence was filed four days late, the court declined to strike it out, applying the principle that mistakes of counsel should not be visited on the litigant. The court exercised its inherent powers to extend time and validate the filing in the interest of substantive justice, but ordered counsel to personally pay the applicants' costs.

Outcome

Application dismissed with costs; time for filing extended and amended pleading validated

Facts

The applicants/counter-defendants applied to strike out the respondent's amended written statement of defence and counterclaim on grounds it was filed out of time. The court had on 5 October 2011 ordered the respondent to file and serve the amended pleading within 15 days, by 20 October 2011. The respondent's clerk brought the document to the registry on 20 October but was advised to pay court fees. The fees were only paid on 24 October 2011, four days late, when the document was lodged and sealed by the Registrar. The respondent attributed the delay to power outages preventing completion of the amendments and to administrative delays in the court registry. The applicants argued that filing was complete only upon payment of fees, making the pleading filed late, and that insufficient court fees were paid for the counterclaim.

Issues

  1. Whether the amended written statement of defence and counterclaim filed on 24 October 2011 should be struck out for being filed outside the time ordered by court.
  2. Whether a document can be validly filed in court before payment of court fees.
  3. Whether the mistakes and negligence of counsel should be visited upon the client.

Orders

  • Application dismissed.
  • Time for filing the amended written statement of defence and counterclaim extended and the filing on 24 October 2011 validated.
  • The amended written statement of defence and counterclaim to be served on the plaintiff/counter-defendants within seven days.
  • Correct court fees to be paid in accordance with the rules.
  • Costs of the application awarded to the applicants.
  • Costs to be paid personally by counsel for the respondent before the scheduling conference fixed for 25 April 2012.

Rules and key headnotes

Filing of Court Documents — Payment of Court Fees as Precondition
Documents cannot be validly filed in the civil registry unless court fees have been paid or provided for by a general deposit from the filing advocate from which authority has been given to deduct court fees.
Court Orders — Distinction between Rules of Procedure and Court Orders
A clear distinction must be made between time prescribed by procedural rules and time given by a court order. While time prescribed by rules can sometimes be treated as a mere technicality which may be ignored under Article 126(2)(e) of the Constitution, a court order must be obeyed unless set aside or varied, and is not a mere technical rule of procedure that can be ignored.
Affidavits — Treatment of Defective Affidavits — Liberal Approach
The Supreme Court has adopted a liberal approach to dealing with defective affidavits. Where an affidavit contains some paragraphs that are hearsay or otherwise defective, the offending paragraphs can be severed and the remaining paragraphs accepted, in line with the constitutional directive to administer substantive justice without undue regard to technicalities.
Mistakes of Counsel — Effect on Litigant
It is a settled principle that mistakes of counsel, however negligent, should not be visited on a litigant. A litigant should not be permanently deprived of the right of putting forward a bona fide claim or defence by reason of the default of their professional advisor or advisor's clerk. As a client does not have control over how instructions are carried out, the client cannot be faulted for the mistakes of counsel.
Extension of Time — Court's Inherent Power to Extend Time after Expiry
The court has inherent power under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to enlarge time for filing pleadings even after the time allowed has expired, particularly where striking out the pleading would not serve the interest of justice and expediency and would lead to multiplicity of suits.
Costs — Personal Costs Orders against Counsel
Where an application is necessitated by counsel's failure to act in time for no justifiable reason, the court may order that costs be paid by counsel personally rather than by the client.

Legislation cited (20)

Cases cited (20)

  • Nile Breweries Ltd v Bruno Ozunga t/a Nebbi Boss Stores (Civil Suit No. 580 of 2006)
  • Eric Tibebega v Fr. Narensio Begunisa and Others (Supreme Court Civil Application No. 18 of 2002)
  • Ndaula Ronald v Hajji Naduli Abdul and Another (Electoral Petition Appeal No. 20 of 2006)
  • Col. (Rtd) Besigye Kizza v Museveni Yoweri Kagutta and Electoral Commission (Election Petition No. 1 of 2001)
  • Reamation Ltd v Uganda Corporation Creameries Ltd and Another (Civil Application No. 7 of 2001)
  • Motor Mart (U) Ltd v Yona Kanyomozi (Civil Appeal No. 6 of 1999)
  • Yona Kanyomozi v Motor Mart (U) Ltd (Civil Appeal No. 8 of 1998)
  • Greenwatch v Attorney General and Another (2003) 1 E.A. 87
  • Sirasi Bitaitana and 4 others v Emmanuel Kananura [1977] HCB 34
  • Nathan Katamba v Stephen Kabigyema [2000] KALR 780
  • Sam Aniagyei Obeng and Another v MTL Real Properties Ltd and Another (Miscellaneous Application No. 198 of 2011)
  • Babihuga Winnie v Matsiko Winfred (Election Petition Application No. 14 of 2002)
  • Pinnacle Projects Ltd v Business in Motion Consultants Ltd (Miscellaneous Application No. 362 of 2010)
  • UNTA Exports Ltd v Customs [1970] EALR 648
  • Amrit Goyal v Harichand Goyal and 3 Others (Civil Application No. 109 of 2004)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Hajji Nurdin Matovu v Ben Kiwanuka (Supreme Court Civil Appeal No. 12 of 1991)
  • Alexander Jo Okello v Kayondo & Co. Advocates (Supreme Court Civil Appeal No. 1 of 1997)
  • Andrew Bamanya v Shamsherali Zaye (Court of Appeal Civil Application No. 70 of 2001)
  • M & E Associates Ltd v Prestige Investments Ltd (Miscellaneous Application No. 624 of 2011)

Full judgment

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Central Electricals International Ltd and Another v Sebide (Miscellaneous Application No. 625 of 2011) [2012] UGHC 466 (13 April 2012)
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.