Wakilii

Shumuk Properties Ltd v Deoux Tibeingana (Miscellaneous Application 921 of 2016)

High Court · [2016] UGCOMMC 308 · 2016 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application arising from Civil Suit No. 708 of 2014 seeking to strike out the respondent's cross-claim against the applicant
Decision
Cross-claim struck out; main suit to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where two defendants are sued jointly and severally, and one defendant admits partial liability by mediation consent while a residual claim remains disputed against both, the admitting defendant may file a defence to the reinstated residual claim with the plaintiff's consent under O.51 r.7 CPR. However, a cross-claim by the admitting defendant against the co-defendant is superfluous where it duplicates the prayers in the statement of defence, as the trial judgment will dispose of both claims. The cross-claim was struck out as misconceived and not within the scope of O.1 r.21 CPR.

Outcome

Cross-claim struck out; main suit to proceed to hearing

Facts

The applicant (1st defendant) and respondent (2nd defendant) were sued jointly and severally by Paul Ochieng in HCCS No. 708 of 2014 for UGX 550,000,000 as money had and received. The applicant filed its defence within time. The respondent admitted liability for UGX 420,000,000 and entered into a mediation consent with the plaintiff in December 2014, settling that amount and leaving a disputed residual claim of UGX 130,000,000 for which both defendants remained jointly liable. After the suit was initially dismissed for non-appearance and subsequently reinstated by court order in December 2015, the respondent filed a defence and cross-claim against the applicant in September 2016 with the plaintiff's consent. The applicant sought to strike out the cross-claim as incompetent.

Issues

  1. Whether the respondent against whom the plaintiff has obtained judgment and decree can present a written statement of defence in the same suit and in the process cross-claim against a co-defendant
  2. Whether the respondent can cross-claim against the applicant without notice under Order 1 rule 21 of the Civil Procedure Rules
  3. What remedies are available to the parties

Orders

  • The cross-claim is struck out as misconceived and outside the confines of the law.
  • The parties are required to proceed to schedule the hearing of the main suit within the next two weeks.
  • Costs shall abide the cause.

Rules and key headnotes

Civil Procedure — Joint and Several Liability — Partial Mediation Consent — Defence to Residual Claim
Where two defendants are sued jointly and severally and one defendant admits partial liability through a mediation consent, both defendants remain jointly liable for any residual claim not covered by the consent. The defendant who admitted partial liability is entitled to file a defence to the reinstated residual claim.
Civil Procedure — Late Filing of Defence — Consent Under O.51 r.7 CPR
Under Order 51 rule 7 of the Civil Procedure Rules, the time for filing any pleading may be enlarged by consent in writing of the parties or their advocates without application to the court. Where the plaintiff's counsel endorses consent to the late filing of a defendant's statement of defence, the defendant is entitled to defend the claim.
Civil Procedure — Cross-Claims Between Co-Defendants — Scope of O.1 r.21 CPR
Order 1 rule 21 of the Civil Procedure Rules applies only where a defendant claims contribution or indemnity from a third party. It does not permit a co-defendant to cross-claim against another co-defendant for declarations denying liability. Where a cross-claim duplicates the prayers in the statement of defence, it is superfluous and misconceived.
Civil Procedure — Superfluous Pleadings — Cross-Claims Duplicating Defence
A cross-claim is unnecessary and should be struck out where it seeks the same relief as the statement of defence, because the judgment following trial will dispose of both the defence and the cross-claim together.

Legislation cited (11)

Cases cited (12)

  • Robert B.K Ssebunya v Attorney General [1980] HCB 58
  • Konde v Nankya & another [1985] HCB 22
  • Iga v Makerere University [1972] EA 65
  • MK Financiers Ltd v N. Shah & Co. Ltd (Miscellaneous Application No. 1056 of 2014)
  • National Enterprises Corporation v Mukisa Foods Ltd (Civil Appeal No. 42 of 1997)
  • Pasikale Lutaya v Felix K. D. Rwambarali and 3 others (Civil Suit No. 682 of 1977)
  • Yafesi Walusimbi v The Attorney General of Uganda [1959] EA 233
  • Edward Kironde Kaggwa v L. Costaperaria and another [1956] EA 213
  • Shah v Attorney General (No.2) [1970] EA 523
  • Makula International Ltd v His Eminence Cardinal Nsubuga and another [1982] HCB 11
  • Sebagala v China Palace (U) Ltd (Miscellaneous Application No. 152 of 2015)
  • Madrawi v West Nile Distillers Ltd (Civil Appeal No. 37 of 2008)

Full judgment

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

Shumuk Properties Ltd v Deoux Tibeingana (Miscellaneous Application 921 of 2016) [2016] UGCommC 308 (2 January 2016)
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.