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Alli Maishalla and 5 Others v Basheza (Land Civil Suit 5 of 2022) [2023] UGHCLD 320 (17 July 2023)
- Citation
- [2023] UGHCLD 320
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Land Division (Uganda)
- Panel
- Kawesa, J
- Case number
- Land Civil Suit 5 of 2022
- Language
- English
More details
- Court
- HC: Land Division (Uganda)
- Panel
- Kawesa, J
- Case number
- Land Civil Suit 5 of 2022
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court upheld the preliminary objection that the respondent's affidavit in reply was filed out of time without leave of court, rendering it incompetent and struck out. Consequently, the application was heard as unopposed. The court found that the Chief Magistrate failed to consider documentary evidence of the applicants' possession of the suit land and that the respondent did not address the substantive issues. The court concluded that the applicants had proved their case for revision, and the land should be released from attachment. Costs were awarded to the applicants.
Court disposition
application allowed
Orders
- The respondent's affidavit in reply is struck out for being filed out of time without leave.
- The application is allowed in its entirety.
- The applicants' land is released from attachment.
- Costs are granted to the applicants.
02
Material facts
Parties
Alli Maishalla & 5 Others
ApplicantBasheza Ramathan
Respondent03
Procedural history
Posture
Miscellaneous Application / Ruling
04
Questions and positions
Legal issues
- 01
Whether the reply affidavit by the respondent was filed out of time and should be struck out.
- 02
Whether the Chief Magistrate's decision in Miscellaneous Application No. 43/2017 was attended by material irregularity or injustice warranting revision.
- 03
Whether the applicants were in possession of the suit land and entitled to relief.
Party arguments
- Applicant
- The applicants argued that the respondent's affidavit in reply was filed out of time without leave of court, contrary to the Civil Procedure Rules, and should be struck out. They further contended that the Chief Magistrate failed to consider documentary evidence showing the applicants' possession of the suit land, resulting in a decision attended by material irregularity and injustice.
- Respondent
- The respondent filed a reply affidavit but did not seek leave for late filing and did not address the substantive issues raised by the applicants regarding possession and the alleged irregularities in the Chief Magistrate's decision.
05
Court’s reasoning
Legal principles
- 01
Order 52 Rule 3 of the Civil Procedure Rules; Stop and See (U) Ltd v Tropical Africa Bank Ltd MA No. 33 of 2012
A reply or defence to an application must be filed within fifteen days as per the Civil Procedure Rules; failure to do so without leave renders the reply incompetent.
- 02
Section 83 of the Civil Procedure Act
The High Court has power to revise decisions of lower courts where there is material irregularity or injustice.
06
Ratio, limits and disposition
Ratio decidendi
The court upheld the preliminary objection that the respondent's affidavit in reply was filed out of time without leave of court, rendering it incompetent and struck out. Consequently, the application was heard as unopposed. The court found that the Chief Magistrate failed to consider documentary evidence of the applicants' possession of the suit land and that the respondent did not address the substantive issues. The court concluded that the applicants had proved their case for revision, and the land should be released from attachment. Costs were awarded to the applicants.
Obiter and limits
- Strict compliance with procedural timelines for filing affidavits is mandatory and failure to seek leave for late filing is fatal to the pleadings.
- Where a party fails to rebut the applicant's evidence, the court may proceed to grant the orders sought if satisfied on the merits.
Court disposition
application allowed
- The respondent's affidavit in reply is struck out for being filed out of time without leave.
- The application is allowed in its entirety.
- The applicants' land is released from attachment.
- Costs are granted to the applicants.
Source and reliance status
HC: Land Division (Uganda)
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
HC: Land Division (Uganda)
Judgment
REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO HCT-19-LD-CR-0005 OF 2022
ALLI MAISHALLA 5 ORS ::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS
BASHEZA RAMATHAN::::::::::::::::::::::::::::::::::::::::RESPONDENT
RULING
BEFORE: HON. DR. JUSTICE HENRY I KAWESA
This matter was filed before me by Notice of Motion.
The matter (application) seeks orders *inter alia* revising a decision by the Chief Magistrate Busia under Miscellaneous Application No. 43/2017 (*referred to as Miscellaneous Application No 43/2017*) for;
- i) Objector proceedings for a warrant to give vacant possession of the suit property and; - ii) That costs of the application be provided for.
The Miscellaneous Application is supported by an affidavit filed by the Applicants. The complaint is that while dismissing the application, the Magistrate acted with material irregularity or injustice, and that the application is brought without delay.
The Respondent filed a reply which Counsel for the Applicant by a Preliminary Objection wants Court to struck out. I resolve the matters as here below:
1. Preliminary Objection on affidavit in Reply.
The Rules that govern pleadings are set out in the Civil Procedure Rules. Once the Defendant is served service must follow the strict position postulated in the Rules.
For emphasis the application before Court was generated by Notice of Motion. This is governed by Section 83(c), and Order 52 Rule 3 of the Civil Procedure Rules. The time required for a reply to pleadings generated as above is fixed to 15 days. This Court has held so many times in different cases guided by the principle in *Stop and See (U) Ltd versus Tropical Africa Bank Ltd; MA NO. 33 of 2012* and the case of *Spring Wood Capital Patroness Ltd versus Twed Consulting Co. Ltd (as quoted) refers;*
*"that a reply or defence to an application has to be filed within fifteen days, failure to do so puts any defence so is sought"*.
No leave was sought herein.
I do uphold the preliminary Objection.
- 2. The matter therefore is heard as if no reply was filed. The effect is that the Notice of Motion and affidavit in support are not rebutted. Given that position and following Section 83 of the Civil Procedure Act, I find that: - (i) the Learned Trial Magistrate failed to take note of the fact that there was documentary evidence before Court that Applicants were in possession of the land subject of objection.
(ii) I have noted the fact that Civil Suit No. 25/2016, 26/2016, and 6/2020 were dismissed by the Chief Magistrate on 23th November 2022.
I also take note of the fact that the Respondent has not addressed the issues raised constituting the failure by the Learned Trial Magistrate to address the matters before him.
In the result, I do find that this application is proved.
The grounds raised by the Applicant are noted and allowed in their entirety. The Applicant's land should be accordingly released from attachment.
Costs granted to the Applicants.
I so order.
…………………………….. Hon. Dr. Henry I Kawesa JUDGE 17/07/2023
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