Wakilii

Kalule and Another v Board of governors of our Lady of Africa S.S and Another (Civil Suit No. 54 of 2019)

High Court · [2023] UGHCCD 56 · 2023 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection raised by plaintiff regarding service of 2nd defendant's amended written statement of defense
Decision
Preliminary objection dismissed; matter to proceed to trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the 2nd defendant's failure to serve the amended written statement of defense was not the fault of the defendant but resulted from the court registry's failure to endorse and seal the document after filing. The plaintiff had participated in preparing a joint scheduling memorandum incorporating the defense and was aware of its contents. Applying Article 126(2)(e) of the Constitution, the court prioritised substantive justice over technicalities and overruled the preliminary objection, directing the registry to issue the sealed defense for proper service.

Outcome

Preliminary objection dismissed; matter to proceed to trial

Facts

The plaintiffs sued both defendants in negligence for damages arising from their son's death. The case was settled by consent with the 1st defendant. The 2nd defendant was granted leave to amend its written statement of defense and filed an amended defense on 19 January 2022. The parties prepared a joint scheduling memorandum incorporating the amended defense. When the case came up for hearing on 22 February 2023, plaintiff's counsel raised a preliminary objection that the 2nd defendant had not served the amended written statement of defense upon the plaintiff, rendering it incompetent. The 2nd defendant's position was that the court registry had not endorsed or sealed the filed defense copies, preventing service.

Issues

  1. Whether the 2nd defendant's written statement of defense should be struck out for failure to serve it upon the plaintiff

Orders

  • Preliminary objection overruled.
  • Assistant Registrar directed to sign and seal copies of the amended written statement of defense and issue them to the 2nd defendant.
  • 2nd defendant to serve the sealed copies within 10 days from receipt.
  • Any reply to the amended written statement of defense by the plaintiff to be filed within 3 days after service.
  • Both plaintiff and 2nd defendant given until 6 April 2023 to file and exchange all witness statements and trial bundles.
  • Case adjourned to 17 April 2023 for cross-examination of plaintiff's witnesses.

Rules and key headnotes

Civil Procedure — Service of Pleadings — Effect of Registry Delay in Endorsing Filed Documents
Where a party files a pleading in compliance with the rules but the court registry fails to endorse and seal the document for issuance, the filing party cannot be faulted for non-service and the failure should not be visited upon that party.
Civil Procedure — Service of Pleadings — Waiver by Conduct
Where a plaintiff participates in preparing a joint scheduling memorandum that incorporates the contents of a defendant's pleading and demonstrates full awareness of its contents, the plaintiff cannot subsequently allege non-service of that pleading.
Constitutional Law — Substantive Justice — Article 126(2)(e) Application to Procedural Defects
Article 126(2)(e) of the Constitution requires courts to administer substantive justice without undue regard to technicalities, and perceived procedural prejudice is curable by allowing time for proper compliance where the defect arose from court administrative delays rather than party fault.

Legislation cited (4)

Cases cited (2)

  • Nile Breweries Limited v Bruno Ozunga t/a Nebbi Boss Stores (High Court Civil Suit No. 580 of 2006)
  • Stop And See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010)

Full judgment

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

Kalule and Another v Board of governors of our Lady of Africa S.S and Another (Civil Suit No. 54 of 2019) [2023] UGHCCD 56 (6 March 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.