Wakilii

Sheena Imran Ahmed and Another v Musoke and Another (Miscellaneous Application No. 406 of 2020)

High Court · [2020] UGCOMMC 143 · 2020 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file written statement of defence out of time, arising from Civil Suit No. 178 of 2018 where the defence had been expunged
Decision
Application dismissed as misconceived; applicants must first seek review of order expunging their defence

Observed later treatment

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Holding

Held that where a defence filed out of time has been expunged from the record by court order, a defendant cannot simply seek to refile it out of time without first seeking to have the expunging order reviewed and vacated. The application was misconceived because the proper remedy was to apply for review of the expunging order before seeking extension of time. The preliminary objection on the applicability of Section 96 CPA was dismissed as courts may cure citation of wrong law where jurisdiction exists.

Outcome

Application dismissed as misconceived; applicants must first seek review of order expunging their defence

Facts

The applicants were defendants in Civil Suit No. 178 of 2018. They filed their written statement of defence on 30 August 2017, after the time prescribed by the Civil Procedure Rules. They did not apply for extension of time to validate the belated filing. The respondents/plaintiffs raised a preliminary objection that the defence was filed out of time. The court upheld the preliminary objection and expunged the defence from the record in December 2019. The applicants then brought this application seeking leave to file their defence out of time. They alleged they had not been served with summons and that their counsel had suffered health complications. The respondents opposed the application.

Issues

  1. Whether Section 96 of the Civil Procedure Act applies to applications for extension of time to file a written statement of defence.
  2. Whether the court can grant leave to file a defence out of time after the defence has been expunged from the record.
  3. Whether an applicant must first have an order expunging a defence reviewed and vacated before seeking extension of time to file that defence.

Orders

  • Preliminary objection dismissed.
  • Application for leave to file written statement of defence out of time dismissed as misconceived.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Citation of Wrong or Inapplicable Law — Effect on Application
Where an application omits to cite any law at all or cites the wrong law, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the correct law inserted, provided the incorrect act is not of a fundamental nature.
Civil Procedure — Extension of Time — Scope of Section 96 Civil Procedure Act
Section 96 of the Civil Procedure Act gives the court unfettered discretion to enlarge any period fixed or granted by the court for doing any act prescribed or allowed by the Act, even though the period originally fixed or granted may have expired. The provision sets the ground for the court's mandate under Order 51 rule 6 of the Civil Procedure Rules which provides for enlargement of time.
Civil Procedure — Extension of Time — Defence Already Expunged — Proper Remedy
Where a belatedly filed defence has been expunged from the record by court order, the defendant cannot simply seek to have it refiled out of time without first seeking to have the order which struck it off the record reviewed and vacated. The proper procedure is to apply for review of the expunging order and then seek extension of time or validation of the belated filing.
Civil Procedure — Defence Filed Out of Time — Requirement to Apply for Extension Before Expunging
Where a defence is filed outside the time prescribed by the Civil Procedure Rules, the defendant must apply to court for extension or validation of time before the defence is expunged. Section 96 of the Civil Procedure Act gives the court discretion to enlarge time where the appointed time has expired, but the court usually exercises this discretion upon the party requiring the extension applying for the same.

Legislation cited (4)

Cases cited (3)

  • Francis Wazarwahi Bwengye v Haki w. Bonera (HCT-00-CV-CA-0033-2009)
  • Tarlol Singh Saggu v Roadmaster Cycles (U) Ltd (CACA No. 46 of 2000)
  • Nanjibhai Prabohusdas & Co. Ltd v Standard Bank Ltd [1968] EA 670

Full judgment

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

Sheena Imran Ahmed and Another v Musoke and Another (Miscellaneous Application No. 406 of 2020) [2020] UGCommC 143 (4 September 2020)
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.