Kabugo and Another v Bank of Baroda (U) Ltd (Civil Appeal No. 72 of 2002)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge erred in disposing of the appellants' application to strike out the defence in a summary manner. Although pleadings were complete, the application raised more issues than the mere failure to file annextures with the written statement of defence. The closure of pleadings was not fatal to the application, and the judge ought to have heard the substantive motion on its merits. The failure to hear the application as filed occasioned a miscarriage of justice. The Court declined to pronounce on the remaining grounds as they went to the merits, and remitted the matter to the trial court for hearing.

Outcome

Matter remitted to the High Court to hear the substantive motion on its merits

Facts

On 11 April 2002, the appellants filed a suit against the respondent and three others challenging instruments affecting their land at Kyadondo Block 208, Plot 1408, Kawempe Division, Kampala. On 29 April 2002, the respondent filed a written statement of defence with a counter-claim that referred to annextures which were neither attached nor filed, and the defence was served without them. On 2 May 2002, the appellants filed a Notice of Motion seeking to strike out the defence and counter-claim on grounds that they disclosed no reasonable defence, were frivolous and vexatious, and were an abuse of court process. Before the motion was heard, the respondent filed the annextures and served them. At the hearing, the respondent raised preliminary objections, including a predated supporting affidavit. The trial judge dismissed the objections but declined to strike out the defence, holding that since pleadings were complete he would set the suit down for hearing. The appellants appealed.

Issues

1. Whether the trial judge erred in declining to strike out the defence on the ground that pleadings were complete, without hearing the substantive application on its merits.
2. Whether the failure to hear the application as filed occasioned a miscarriage of justice.

Orders

• Appeal allowed with costs to the appellants both in the Court of Appeal and in the court below.
• Record remitted to the trial court to hear the substantive motion on merit.

Rules and key headnotes

Legislation cited (5)

• Civil Procedure Rules Order 6 rule 29
• Civil Procedure Rules Order 8 rule 19
• Civil Procedure Rules Order 9 rule 1
• Civil Procedure Rules Order 48 rule 1
• Civil Procedure Rules Order 48 rule 19

Cases cited (2)

• Noble Builders C.A No.20 of 1991
• ZK Shah v United Africa Press Ltd [1961] EA 93

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