Wakilii

Nantale v Katushabe and 4 others (Civil Miscellaneous Application 111 of 2023)

High Court · [2024] UGHC 601 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of time to file written statement of defence out of time
Decision
Application granted; applicant permitted to file defence out of time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the application to file a defence out of time in a land matter. The court found the affidavit of service suspect and unreliable, as the process server deposed to serving the applicant nine days before the alleged service date. The court held that no prejudice would be caused if the application was allowed since the main suit had not commenced hearing. The preliminary objection concerning late service of the motion was overruled for lack of evidence.

Outcome

Application granted; applicant permitted to file defence out of time

Facts

The first respondent filed a land suit (HCT-05-CV-LD-0075-2022) on 19 July 2022 against the applicant and other respondents. An affidavit of service dated 27 July 2022 stated that the applicant was served with summons on 5 August 2022. The applicant denied being served with summons to file a defence, claiming she only received summons for directions. When she appeared before the Deputy Registrar unrepresented, she was not allowed to speak. The hearing commenced on 25 January 2023 and was adjourned to 30 March 2023. On 21 March 2023 the applicant filed an application seeking leave to file a defence out of time. The first respondent opposed the application, alleging the applicant's affidavit contained falsehoods and that the applicant had been properly served and was aware of the proceedings.

Issues

  1. Whether there are sufficient grounds to grant the application to file a defence out of time.
  2. Whether the notice of motion was served out of time as required by Order 5 rule 1 of the Civil Procedure Rules.

Orders

  • Application allowed with costs to abide the outcome of the main cause.
  • Applicant to file and serve written statement of defence within 10 days from the date of delivering this ruling.
  • Respondents may file a reply within 7 days after receiving the written statement of defence.
  • Main suit HCT-05-CV-LD-0075-2022 to be mentioned on 20 November 2024.
  • Preliminary objection overruled.

Rules and key headnotes

Civil Procedure — Extension of Time — Defence Filed Out of Time — Sufficient Cause
A court may, in its discretion, upon being shown sufficient cause, enlarge the time within which a particular act ought to be done even though the period originally fixed may have expired. Sufficient cause must relate to the inability or failure to take necessary steps within the prescribed time.
Civil Procedure — Affidavit of Service — Reliability — Internal Inconsistencies
An affidavit of service that contains internal inconsistencies, such as a deponent deposing to service close to nine days before the alleged date of actual service, is suspect and unreliable.
Civil Procedure — Land Matters — Disputes Should Be Decided on Merit
In the interests of justice, courts should ensure that disputes, especially land matters, are heard and decided on merit. This standard is higher where the case involves a land matter.
Civil Procedure — Extension of Time — No Prejudice Where Hearing Not Yet Commenced
No prejudice is caused to parties that cannot be compensated by costs if an application to file a defence out of time is granted where the hearing of the main suit is yet to start.
Civil Procedure — Preliminary Objections — Burden of Proof
A party raising a preliminary objection concerning late service of a notice of motion bears the burden to prove the allegations by leading evidence. In the absence of such evidence, the objection must fail.

Legislation cited (4)

Cases cited (8)

  • Rosette Kizito v Administrator General and Others (Supreme Court Civil Application No. 9 of 1996)
  • Hadondi Daniel v Yolam Engondi (Court of Appeal Civil Appeal No. 67 of 2003)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Supreme Court Civil Appeal No. 4 of 1981)
  • Andrew Bamanya v Shamsherali Zaver (Supreme Court Civil Application No. 70 of 2001)
  • Al Haji Yahya Balyejusa v Development Finance Company Limited (Supreme Court Civil Appeal No. 34 of 2000)
  • Fredrick Kabugo Sebugulu v The Administrator General (Court of Appeal Civil Appeal No. 69 of 2010)
  • Mohan Kiwanuka v Aisha Chand (Supreme Court Civil Appeal No. 14 of 2002)
  • Kaur and Others v City Auction Mart Ltd [1967] 1 EA 108

Full judgment

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

Nantale v Katushabe and 4 others (Civil Miscellaneous Application 111 of 2023) [2024] UGHC 601 (10 July 2024)
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.