Wakilii

Simon Tendo Kabenge Advocates & Anor v Mineral Access Systems Ltd (HCT-00-CC-MA 570 of 2011)

High Court · [2013] UGCOMMC 150 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Written Statement of Defence and Counterclaim for non-payment of court fees and defiance of court order
Decision
Written Statement of Defence and Counterclaim struck out; matter fixed for proof of claim

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the defence was filed within time, as the 15-day period ran from the day after service (8 September 2011) and expired on 22 September 2011. However, the court struck out the Written Statement of Defence and Counterclaim because the Respondent failed to pay the required court fees and defied a peremptory court order directing payment. The court entered judgment in default and fixed the matter for proof of claim, holding that suits are not properly before court until required fees are paid.

Outcome

Written Statement of Defence and Counterclaim struck out; matter fixed for proof of claim

Facts

The Applicant, Simon Tendo Kabenge Advocates, served the Respondent with summons to file a defence on 7 September 2011 in High Court Civil Suit 275 of 2011. On 21 September 2011, the Respondent filed a Written Statement of Defence and Counterclaim. The Applicant sought to strike out the defence on grounds that it was filed late and that court fees were not paid. The court registry received the defence on 21 September 2011. The receipt attached to the Counterclaim originally showed payment of 1,500 shillings dated 21 September 2011, but had been altered to show 514,900 shillings with changes to the serial number and date. The learned Judge had previously found that the receipt had been reused and ordered the Respondent to pay all relevant fees before the hearing. The Respondent did not comply with this order.

Issues

  1. Whether the Respondent's Written Statement of Defence was filed within the prescribed time under Order 8 rule 1(ii) of the Civil Procedure Rules.
  2. Whether the Respondent's Written Statement of Defence and Counterclaim should be struck out for non-payment of court fees.
  3. Whether the Respondent's failure to comply with the court's order to pay fees before the next hearing constituted contempt warranting striking out of pleadings.

Orders

  • The Written Statement of Defence and Counterclaim are struck out.
  • Judgment is entered in default.
  • Matter to be fixed for proof of claim.

Rules and key headnotes

Civil Procedure — Time Limits — Computation of Time for Filing Defence — Exclusion of Day of Service
In computing the time within which a defence must be filed, the day on which service was effected is excluded from the calculation, and the period begins running from the day after service.
Civil Procedure — Filing of Pleadings — Distinction Between Filing and Service
Filing of a defence is complete upon delivery to the proper officer, sealing, and dating by the registry. Service on the opposite party is a separate obligation that arises after filing is complete.
Civil Procedure — Court Fees — Non-Payment as Ground for Striking Out Pleadings
Suits are not properly before court until the required court fees are paid. Non-payment of fees is a ground for striking out the pleadings.
Civil Procedure — Contempt of Court — Disobedience of Peremptory Order to Pay Fees
Disobedience of a peremptory court order (an 'unless order') to pay fees before the next hearing constitutes contumacious conduct warranting striking out of the pleadings. The court cannot condone such deliberate flouting of its orders.

Legislation cited (4)

Cases cited (3)

  • Radcliffe v Bartholomew [1892] 1 QB 161
  • UNTA Exports Limited v Customs [1970] EA 648
  • Tolbey v Morris [1979] 1 WLR 592

Full judgment

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

Simon Tendo Kabenge Advocates & Anor v Mineral Access Systems Ltd (HCT-00-CC-MA 570 of 2011) [2013] UGCommC 150 (27 August 2013)
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.