Wakilii

Departed Asains Property Custodian Board v Balikowa (Miscellaneous Application 334 of 2022)

High Court · [2023] UGHCCD 296 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application arising from Miscellaneous Application No. 265 of 2022 (arising out of Civil Suit No. 50 of 2022) seeking to set aside Deputy Registrar's order requiring security for costs; preliminary objection raised regarding late service of affidavit in reply
Decision
Preliminary objection dismissed; affidavit in reply allowed with costs against respondent's counsel personally; matter to proceed on merits

Observed later treatment

Cited — treatment unverified cited in 3 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 3 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that although the respondent filed the affidavit in reply within the prescribed 15 days, failure to serve it on the applicant within that period was attributable to counsel's negligence. Applying the principle that a litigant should not bear the consequences of an advocate's default, the court exercised its inherent powers under Order 51 rule 6 of the Civil Procedure Rules to allow the affidavit in reply, but ordered respondent's counsel to personally bear costs of UGX 1,500,000 for the negligence.

Outcome

Preliminary objection dismissed; affidavit in reply allowed with costs against respondent's counsel personally; matter to proceed on merits

Facts

The applicant filed Civil Suit No. 50 of 2022. The respondent filed Miscellaneous Application No. 265 of 2022 seeking security for costs of UGX 200,000,000. The Deputy Registrar ordered the applicant to deposit UGX 70,000,000 as security for costs within 30 days. The applicant then filed Miscellaneous Application No. 334 of 2022 to set aside the Deputy Registrar's order. The application was filed on 7 December 2022, sealed on 22 December 2022, and served on the respondent on 6 January 2023. The respondent filed an affidavit in reply on 17 January 2023 but failed to serve it on the applicant within the prescribed 15-day period. When the matter came up for hearing on 27 February 2023, the respondent's counsel attempted to serve the affidavit that morning but the applicant's counsel declined service. The applicant raised a preliminary objection that the affidavit in reply was filed and served out of time.

Issues

  1. Whether the respondent's affidavit in reply filed in court on 17 January 2023 but not served on the applicant within 15 days should be struck out.
  2. Whether the court should exercise its inherent powers under Order 51 rule 6 of the Civil Procedure Rules to extend time for service of the affidavit in reply.

Orders

  • The respondent's affidavit in reply is allowed.
  • Respondent's counsel to personally bear costs of UGX 1,500,000 for negligence in failing to serve the affidavit in reply in time.
  • Respondent's counsel to serve the affidavit in reply on applicant's counsel by 14 September 2023.
  • Applicant's counsel to file written submissions by 21 September 2023.
  • Respondent's counsel to file written submissions in reply by 28 September 2023.
  • Applicant's counsel to file rejoinder if any by 5 October 2023.
  • Ruling to be delivered on 26 October 2023.

Rules and key headnotes

Civil Procedure — Service of Pleadings — Affidavit in Reply — Time Limits
Under Order 8 rule 1(2) of the Civil Procedure Rules, a defendant or respondent must file and serve a defence or affidavit in reply within fifteen days after service of the summons or application. Service is complete only upon fulfilling two steps: filing in the court registry and serving the opposite party.
Civil Procedure — Extension of Time — Court's Inherent Powers — Order 51 Rule 6
The court has inherent powers under Order 51 rule 6 of the Civil Procedure Rules and section 33 of the Judicature Act to enlarge time for doing any act or taking any proceedings, and may exercise such powers in the interests of justice to ensure that matters in controversy are completely and finally determined.
Civil Procedure — Advocate's Negligence — Consequences for Client
A litigant should not bear the consequences of an advocate's default or negligence. A litigant who has instructed lawyers to pursue their case cannot be condemned for not being vigilant in prosecuting their matters, and the court will not visit counsel's negligence onto the client.
Civil Procedure — Costs — Personal Costs Order Against Counsel
Where an advocate's negligence causes delay or prejudice to the opposite party, the court may order the advocate personally to bear the costs occasioned by such negligence, rather than visiting the consequences on the client.

Legislation cited (6)

Cases cited (6)

  • Simon Tendo Kabenge v Barclays Bank & Anor (Supreme Court Civil Appeal No. 17 of 2015)
  • Stop and See v Tropical Bank Limited (Miscellaneous Application No. 33 of 2010)
  • Re-Christine Namatovu Tebajjukira (1992-93) HCB 85
  • Oburu & Anor v Equity Bank (U) Ltd (Miscellaneous Application No. 809 of 2015)
  • Capt Philip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Yowasi Kabiguruka v Samuel Byarufu (Court of Appeal Civil Appeal No. 18 of 2008)

Cases citing this judgment (3)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Departed Asains Property Custodian Board v Balikowa (Miscellaneous Application 334 of 2022) [2023] UGHCCD 296 (14 September 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.