Wakilii

Century Enterprises Ltd v Greenland Bank (in liquidation) (HCT-00-CC-MA 916 of 2004)

High Court · [2005] UGCOMMC 18 · 2005 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appear and defend a summary suit arising from HCT-00-CC-CS-0877-2004
Decision
Applicant granted leave to defend the suit despite procedural irregularity in service

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service of applications under Order 33 is governed by Order 5 rule 1 time limits and the notice of motion was served out of time. However, applying Article 126 of the Constitution, the Court exercised discretion to overlook the procedural lapse where the defendant showed a triable defence and substantive justice required allowing the matter to be heard on its merits. Leave to defend granted with costs to the respondent.

Outcome

Applicant granted leave to defend the suit despite procedural irregularity in service

Facts

The Respondent bank in liquidation sued the Applicant for recovery of Shs.12,778,645 arising from overdraft facilities granted in 1998 totaling Shs.8 million. The bank claimed an outstanding balance of Shs.5,862,959 plus interest at the time of its closure in 1999. The Defendant filed an application under Order 33 for leave to appear and defend on the ground that it was not indebted as the bank had recovered its money through sale of security (motor vehicle No.435 UAK). The notice of motion was issued on 8 December 2004 but served on 3 February 2005, beyond the 21-day limit prescribed by Order 5 rule 1.

Issues

  1. Whether service of a notice of motion under Order 33 is governed by the time limits prescribed in Order 5 rule 1 of the Civil Procedure Rules.
  2. Whether the application should be struck out for non-compliance with mandatory time limits for service.
  3. Whether the Court should exercise its discretion under Article 126 of the Constitution to overlook the procedural irregularity.

Orders

  • Preliminary point of law accepted in part.
  • Application for leave to appear and defend granted.
  • Statement of defence to be filed within seven (7) days from the date of this order.
  • Costs of the application awarded to the Respondent in any event.

Rules and key headnotes

Service of Process — Time Limits — Order 33 Applications
Service of applications for leave to appear and defend under Order 33 is governed by Order 5 rule 1 of the Civil Procedure Rules, which requires service within 21 days from the date of issue, notwithstanding that Order 33 itself does not specify a time limit for service.
Service of Process — Mandatory Provisions — Application of Order 45 rule 2
Under Order 45 rule 2, all orders, notices and documents shall be served in the manner provided for service of summons, and the use of the word 'shall' makes this provision mandatory in the absence of any rule to the contrary.
Procedural Irregularities — Discretion to Overlook — Article 126 Constitution
Where a party has failed to comply with mandatory procedural rules but has shown a triable defence and substantive justice requires it, the Court may exercise its discretion under Article 126(2)(e) of the Constitution, section 4 of the Judicature (Amendment) Act 2002, and section 98 of the Civil Procedure Act to overlook the irregularity and allow the matter to be decided on its merits.
Rules of Procedure — Purpose and Application
The Civil Procedure Rules are a guide to the orderly disposal of suits and a means of achieving justice between the parties, and should not be used to deny a party desirous of contesting where there are triable issues.
Amendment of 1998 — Purpose of Time Limits
The time frames stipulated in Order 5 rule 1 were introduced by the 1998 amendment to remedy the mischief of litigants obtaining summons and then failing to serve them, thereby contributing to unnecessary case backlog.

Legislation cited (8)

Cases cited (3)

  • Utex Industries Ltd v Attorney General (SCCA No. 52 of 1995)
  • Nassanga v Nanyonga [1977] HCB 318
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Century Enterprises Ltd v Greenland Bank (in liquidation) (HCT-00-CC-MA 916 of 2004) [2005] UGCommC 18 (9 May 2005)
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.