Wakilii

Omo Simon v Amon Tomusange (Civil Suit No 201 of 2004) (Civil Suit No 201 of 2004)

High Court · [2004] UGHC 3 · 2004 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out defendant's written statement of defence filed out of time
Decision
Defendant permitted to defend; matter to proceed to hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a defendant in default has shown a defence with merit and the plaintiff can be compensated by costs, the court should allow the defendant to defend on the merits rather than shut out the defence. The court allowed the defendant to defend despite the defence being filed out of time, awarding costs to the plaintiff.

Outcome

Defendant permitted to defend; matter to proceed to hearing on the merits

Facts

The plaintiff filed suit on 23 September 2004 seeking damages for wrongful eviction, loss of property, and trespass. The defendant filed a written statement of defence with counterclaim on 19 October 2004. The plaintiff obtained an interlocutory judgment on 14 October 2004 but then filed a reply to the defence and counterclaim on 26 November 2004. When the matter came up for hearing on 13 April 2006, the plaintiff's counsel applied to strike out the defendant's written statement of defence on grounds it was filed out of time and without leave or consent. The defendant's counsel applied to be discharged as he had not seen the defendant since drafting the defence.

Issues

  1. Whether the defendant's written statement of defence filed out of time and without leave should be struck out.

Orders

  • Defendant allowed to defend the suit.
  • Costs fixed at Shs. 200,000/= awarded to the plaintiff in any event.

Rules and key headnotes

Civil Procedure — Striking Out — Defence Filed Out of Time — Discretion of Court
Where a defendant though in default appears before the court and indicates a defence with merits, and the plaintiff can reasonably be compensated by costs for any delay, it is proper for the court to allow the case to be tried on the merits with both sides being heard rather than shutting out the defendant.
Civil Procedure — Interlocutory Judgment — Waiver — Conduct of Plaintiff
Where a plaintiff obtains an interlocutory judgment but then proceeds to file a reply to the defendant's written statement of defence instead of pressing for formal proof, the plaintiff may be taken to have waived the benefit of the interlocutory judgment.

Cases cited (2)

  • Petro Kasule v Daniel S S Kato (CA 13 of 1951)
  • Cropper v. Smith [1884] 26 Ch. Div. At p. 710

Full judgment

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

Omo Simon v Amon Tomusange (Civil Suit No 201 of 2004) (Civil Suit No 201 of 2004) [2004] UGHC 3 (31 December 2004)
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.