Gideon Mwesigye and Others v Namara Edith (Civil Miscellaneous Application 338 of 2024) [2025] UGHC 461 (30 June 2025)


THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0338-2024 5 (ARISING FROM HCT-05-LD-CS-0069-2024)

- 1. GIDEON MWESIGYE - 2. RUTH SANYU - 3. JANE MAGYEZI IRIKIZA ------------------------------------------- APPLICANTS

10 4. DANIEL MWESIGWA

VERSUS

NAMARA EDITH -------------------------------------------------- RESPONDENT

15 BEFORE: Hon. Justice Nshimye Allan Paul M.

RULING

REPRESENTATION

20 The Applicants were represented by M/s Nebye, Rutaro & Co. Advocates, while the Respondent was represented by M/s Mugarura, Mwijusya & Co Advocates.

BACKGROUND

This application was brought under Section 98 of the Civil Procedure Act Cap 25 282, Section 33 of the Judicature Act Cap 16 and Order 8 Rules 18(5) and 20 of the Civil Procedure Rules SI 71-1 seeking orders that;

- 1. A judgment on admission be entered against the Respondent under the counterclaim filed by the Applicants/Counterclaimants in Civil Suit No. 69 of - 30 2024. - 2. A declaration that the suit land forms part of the estate of the late Sezi Karubanga to be used as family/ancestral land. - 3. An order for a permanent injunction restraining the Respondent and her agents or any intended third party from trespassing and transacting on the - 35 suit land, without consent of other members of the Karubanga family. - 4. Costs of the application be in the cause.

The Application is supported by an affidavit deponed by the 1st Applicant on his behalf and on behalf of the 2nd, 3rd, and 4th Applicants, and it was opposed in an affidavit deponed by the Respondent.

5 GROUNDS

The grounds of the application as stated in the 1st Applicant's affidavit are;

- 1. That the Applicants filed a counterclaim in Civil Suit No. 69 of 2024 on 2nd July, 2024 and served it on the Respondent's advocates. - 2. That a statement in reply to the said counterclaim has not been filed in this 10 Court by the Respondent or her lawyers. - 3. That the period statutorily prescribed for the Respondent to file a reply has lapsed. - 4. That this Court has powers to grant the Applicants judgment on admission against the Respondent given that the latter's failure to reply within the

15 statutory period deems the statements of fact in the counterclaim admitted.

5. That it is in the interest of justice for the application to be granted.

SUBMISSIONS

The parties filed written submissions, which this court has considered.

Applicants' submissions

Counsel submitted that Order 8 Rule 11(1) of the Civil Procedure Rules gives a counter defendant 15 days within which to deliver a reply after a counter claim has been served on them. Counsel cited Eric Ntungura vs Jane Mwesigwa HC

- 25 Civil Suit No.71 of 2005 for the holding that in order to avoid delays, rules of court provide a timetable within which certain steps ought to be taken and for any delay to be excused, it must be explained satisfactorily. That the Respondent's advocate only served the Applicants' advocate with the reply to the counterclaim while in Court on 6th September, 2024 which was 42 days - 30 from when the counterclaim was filed.

Counsel argued that under Order 8 Rule 18(5) of the Civil Procedure Rules, failure of a counter defendant to reply to a counter claim within 15 days from the time they were served with the counterclaim, the statements of fact in the

35 counterclaimant are deemed to have been admitted by the counter defendant. Counsel further argued that the Respondent ought to have filed an application for extension of time within which to serve the response to the counterclaim and in absence of such, he prayed for judgment on admission to be entered against the counter defendant.

Respondent's submissions

Counsel argued that the Respondent filed a reply to the Applicants' counter claim on 9th July, 2024 and it was endorsed by the Deputy Registrar on 16th July,

- 5 2024. It was contended that the case of Eric Ntungura vs Jane Mwesigwa (supra) is distinguishable with circumstances herein because a reply to the counter claim was filed in this case. Counsel added that the Respondent did not admit anything in the reply to the counterclaim. - 10 In rejoinder, counsel for the Applicants reiterated his earlier submissions.

DETERMINATION

In principle, where an admission of facts has been made in a civil matter, court may enter a judgment on admission under ORDER 13 RULE 6 OF THE CIVIL 15 PROCEDURE RULES SI 71-1

ORDER 13 RULE 6 OF THE CIVIL PROCEDURE RULES SI 71-1 provides;

*"6. Judgment on admissions.*

20 *Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon the* 25 *application make such order, or give such judgment, as the court may think just."*

It is trite that for a court to grant a judgment on admission, there must be an acceptance by one party of the case or part of the case of the other party. The 30 admission of facts made by a party against whom judgment on admission is sought to be entered must be clear and unequivocal.

The evidence on court record shows that the Applicants' main ground for claiming for a judgment on admission is that the Respondent did not file a reply 35 to the counterclaim. Counsel relied on Order 8 Rule 18 (5) of the Civil Procedure Rules SI 71 -1 to claim that a judgement on admission be entered since a reply to counter was not filed rendering the facts in the counter claim admitted. (*see paragraphs 3, 4 and 5 of the affidavit in support*).

ORDER 8 RULE 18 (5) OF THE CIVIL PROCEDURE RULES SI 71 -1 states;

*"18. Subsequent pleadings.*

5 *(5) Where a pleading subsequent to reply has not been ordered, then at the expiration of seven days from the filing of the reply, or where a reply has not been filed within the time fixed by or in accordance with these Rules, or a subsequent pleading has been ordered and has not been filed within the time fixed by the order or such enlarged time as may be fixed* 10 *in accordance with these Rules, then at the expiration of the time so fixed, the pleadings shall be deemed to be closed, and all material statements of fact in the pleading last filed shall be deemed to have been denied and put in issue; except that this subrule shall not apply to a reply to a counterclaim and, unless a plaintiff files a reply to a counterclaim* 15 *within the time fixed by or in accordance with these Rules, the statement of facts contained in the counterclaim shall at the expiration of the time so fixed be deemed to be admitted, but the court may at any subsequent time give leave to the plaintiff to file a reply." (Bold emphasis Mine).*

The applicant's request for a judgment on admission is driven by ORDER 8 RULE 18 (5) CIVIL PROCEDURE RULES SI 71-1, especially the part I have boldened. In my opinion, ORDER 8 RULE 18 (5) CIVIL PROCEDURE RULES SI 71- 1, places a party that has not filed a reply to a counter claim in the same 25 position as party that has not filed a defence to a suit. The nature of the counter claim, whether it be a liquidated demand or one that needs formal proof will then dictate the next steps to be taken by the party that filed a counter claim in pursuit of a judgment.

- 30 When a party fails to file a defence in a suit, judgment may be entered under ORDER 9 RULE 6 CIVIL PROCEDURE RULES SI 71-1 if the claim is a liquidated demand, in the case of a claim that is not a liquidated demand , the suit may proceed ex-parte under ORDER 9 RULE 10 CIVIL PROCEDURE RULES SI 71-1 and when dealing with a claim based on a specially endorsed plaint, a - 35 judgment in default may be entered under ORDER 36 RULE 3 (2) OF THE CIVIL PROCEDURE RULES SI 71-1.

It is my considered opinion that failure to file a defence to a suit doesn't entitle the opposite party to file an application for a judgment on admission under file a defence is not an admission within the spirit of ORDER 13 RULE 6 OF THE CIVIL PROCEDURE RULES SI 71-1.

In the case at hand, contrary to the applicants claims that the respondent did not file a reply to the counter claim, the respondent filed a reply to the Applicants' counter claim on 9^th July 2024, just seven days after the counter claim was filed on 2^nd July 2024. (see Written Statement of Defence and reply to counter claim in HCT-05-cv-cs 69 of 2024 attached as annexture A to the *affidavit in reply*).

$\mathsf{S}$

I have perused the reply to the counter claim, and I don't see any admission of fact that would justify the grant of a judgment on admission.

In conclusion, I order that

- 1. The application is dismissed - 2. The applicants shall pay costs to the Respondent.

water

Ł $\overrightarrow{q}$

NSHIMYE ALLAN PAUL M. JUDGE 30-06-2025

$20$

$15$