Wakilii

Simon Tendo Kabenge v Barclays Bank (U) Ltd & Anor (HCT-00-CV-MA-no. 0623-2010)

High Court · [2012] UGHC 120 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for default judgment arising from Civil Suit No. 281 of 2010
Decision
Application dismissed; main suit to proceed inter partes with defence on record

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that filing of a defence is complete once the defendant complies with Order 8 rule 1 and Order 9 rule 1 of the Civil Procedure Rules by delivering the defence to the proper officer within the prescribed time. There is no requirement in the Civil Procedure Rules that the defence must also be served on the plaintiff within that same period, except where the defence contains a counterclaim involving non-parties. The application for default judgment was dismissed as it was based on a misinterpretation of the rules.

Outcome

Application dismissed; main suit to proceed inter partes with defence on record

Facts

The plaintiff instituted Civil Suit No. 281 of 2010 against the defendants. The defendants were served on 1 December 2010 and filed their defence on 15 December 2010, within the 15-day period prescribed by the summons. The defence contained a counterclaim. Two days after the defence was filed, on 17 December 2010, the plaintiff brought an application under Order 9 rule 10 for default judgment, alleging that the defendants had failed to file and serve their defence. The plaintiff's ground was that although the defendants had filed the defence, they had not served a copy on the plaintiff within the 15 days allowed for filing. The defendants filed an affidavit in reply contending that the defence was filed within time. At the hearing, the plaintiff's counsel proceeded ex parte as the defendants did not appear.

Issues

  1. Whether a defence is properly filed only when it has been served on the plaintiff within the time allowed to the defendant to file the defence.
  2. Whether the defendants' failure to serve their defence on the plaintiff within 15 days of filing warrants an order for default judgment or proceeding as if no defence had been filed.

Orders

  • Application dismissed.
  • No order as to costs.
  • The hearing of the case shall proceed inter partes.

Rules and key headnotes

Civil Procedure — Filing of Defence — Requirements for Valid Filing
Filing of a defence is complete once the defendant complies with Order 8 rule 1 and Order 9 rule 1 of the Civil Procedure Rules by delivering the defence to the proper officer within the prescribed time. There is no requirement that the defence must also be served on the plaintiff within that same period.
Civil Procedure — Service of Defence — Time Limits
Order 8 rule 19 of the Civil Procedure Rules does not prescribe a time limit within which a defendant must serve the filed defence on the plaintiff. The rule requires filing of the defence and delivering a duplicate copy to the opposite party, but it does not state that service must be effected within the period allowed for filing.
Civil Procedure — Defence with Counterclaim — Service Requirements
Where a defence contains a counterclaim involving persons who are not parties to the suit, Order 8 rules 8 and 9 require the defendant to deliver the defence to court for service within the period prescribed for filing the defence, and such service must comply with the rules regulating service of summons under Order 5 rule 1(2). Where the counterclaim involves only existing parties to the suit, these special service provisions do not apply.
Civil Procedure — Service of Pleadings — Reasonable Time
Although the Civil Procedure Rules do not prescribe a specific time limit for service of a defence on the plaintiff (except where the defence contains a counterclaim involving non-parties), such service should be done within a reasonable time from the date of filing. A defendant cannot be condemned for unreasonable delay where the plaintiff's own conduct diverted the process by filing a premature application for default judgment.

Legislation cited (8)

Cases cited (4)

  • Mwesigwa Geoffrey Philip v Standard Chartered Bank of Uganda (Miscellaneous Application No. 82 of 2011)
  • Mark Graves v Balton (U) Ltd (Miscellaneous Application No. 158 of 2008)
  • Nile Breweries Limited v Bruno Ozunga T/A Nebbi Boss Stores (HCCS No. 580 of 2006)
  • Attorney General & UCB v Westmont Land (Asia) BHD & 2 Others (Miscellaneous Application No. 593 & 595 of 1999)

Full judgment

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

Simon Tendo Kabenge v Barclays Bank (U) Ltd & Anor (HCT-00-CV-MA-no. 0623-2010) [2012] UGHC 120 (3 July 2012)
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.