Lukyamuzi v Kajimba & Another (Miscellaneous Application 250 of 2022) [2023] UGHC 372 (6 June 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 250 OF 2022 (ARISING FROM MISC APPLN NO. 155 OF 2022) (ARISING FROM CIVIL APPEAL NO. 39 OF 2019) (ARISING FROM CIVIL SUIT NO. 029 OF 2018)

LUKYAMUZI HUSSEIN KYEYUNE (ONE OF THE ADMINISTRATORS OF THE ESTATE OF THE LATE HAJJI ABUBAKARI LUKYAMUZI) ….………… APPLICANT

VERSUS

1. KAJIMBI JAMES (ADMINISTRATOR OF THE ESTATE OF THE LATE KAJIMBI JOHN) 2. LUKYAMUZI HASSAN BUSIBO ………………………….…..….. RESPONDENTS

RULING

*Hon. Lady Justice Victoria N. N. Katamba*

BACKGROUND

The 1st Respondent successfully appealed in Civil Appeal No. 39 of 2019 against the 2nd Respondent. The Applicant then instituted M. A No. 155 of 2022 for review of the orders of this court on appeal. The Applicant served this new suit on the 1st Respondents former Advocates who acknowledged receipt but filed his affidavit in reply out of the 15 days within which a reply should be filed. The Applicant then filed the instant application to have the 1st Respondent's affidavit in reply struck out and have his application determined ex parte.

Representation

The Applicant was represented by M/s Deric Advocates.

The Respondent was on the other hand represented by M/s Jojoma Advocates.

Issues:

*1) Whether or not the 1st Respondent's affidavit in reply to Misc Application No. 155 of 2022 offends order 6 rule 8, 10 and 30 of the Civil Procedure Rules S. I 71-1 as amended?*


- *2) Whether or not the 1st Respondent's affidavit in reply to Mis Application No. 155 of 2022 offends order 12 rule 3(2) of the Civil Procedure Rules S. I 71 -1 as amended?* - *3) What are the available remedies to the parties?*

APPLICANT'S SUBMISSIONS

On the 1st Issue; the Applicant submitted that under Order 6 rule 8 of the CPR, it is provided that it shall not be sufficient for a defendant in his or her written statement to deny generally the grounds alleged by the statement of claim for the Plaintiff in his or her written statement in reply to deny generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he or she does not admit the truth, except damages.

The Applicant submitted that the Respondents denied generally to the contentsof the affidavit in support to M. A No. 155 of 2022 and that he failed to demonstrate which particular paragraph he was replying to and that for this the affidavit should be struck out.

On the 2nd Issue; the Applicant submitted that M. A No. 155 of 2022 was served on the 1st Respondent's Advocates on 5th September 2022 and yet the 1st Respondent only filed his reply on 28th day of October and served it on the Applicant's Lawyers on 24th day of November 2022. The Applicant submits that the filing and service of the reply was out of time.

The Applicant referred this court to Order 12 r3(2) of the CPR which provides that the reply has to be filed and served within 15 days from the date of service and to the locus classicus case of Stop and See (U) Ltd vs. Tropical Africa Bank Ltd M. A No. 333/2010 wherein Justice Madrama deliberated on timelines for exchange of pleadings which confirms that indeed the affidavit in reply out to have been filed within 15 days. Owing to the above omissions that Applicant reiterated his earlier prayer to have the affidavit in reply struck out.

On the 3rd issue; the Applicant prayed that this court be pleased to exercise its discretion to award him costs of the Application.

RESPONDENT'S SUBMISSIONS

On issue 1; The 1st Respondent submitted that he replied to the Applicant's affidavit in support of M. A No. 155 of 2022 that it did not disclose any ground of review. The Respondent referred this


court to S. 82 of the Civil Procedure Act which provides for the grounds of review and submitted that there is no omission in his affidavit in reply to entitle the Applicant to proceed ex parte.

On issue 2; the 1 st Respondent submitted that the late filing of the affidavit in reply was entirely a fault of his former Lawyers of M/s Bashasha & Co. Advocates. That the mistakes of his former Advocates should not be visited on him.

The Respondent cited the authority of Banco Arabe Espanol vs. Bank of Uganda SCCA No. 8 of 1998 in which it was held that a mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. That such mistakes constitute just cause entitling the trial Judge to use his/her discretion so that the matter is considered on it's merits.

DETERMINATION BY COURT.

I have carefully considered the Pleadings and submissions of the parties in this matter and below are the findings and the decision of this court.

*1. Whether or not the 1 st Respondent's affidavit in reply to Misc Application No. 155 of 2022 offends order 6 rule 8, 10 and 30 of the Civil Procedure Rules S. I 71-1 as amended?*

I agree with the Applicants that ordinarily; a reply should respond specifically to the various limbs of a claim in the affidavit in support. In this case, however, the greater burden is on the Applicant who has filed M. A No. 155/2022 to prove his grounds/reasons as to why this court should review and set a side it's decision on appeal. This being a matter upon which this court has ably deliberated upon earlier and came to the conclusions that it reached, the Respondent's omission, if at all, is of a lesser concern in this context.

With the above reason, I do not see how the Applicant has been prejudiced by the 1st Respondent's reply to even file another application to justify his desire to proceed ex parte in the main application. I therefore find no merit in this ground.

*2. Whether or not the 1st Respondent's affidavit in reply to Misc Application No. 155 of 2022 offends order 12 rule 3(2) of the Civil Procedure Rules S. I 71 -1 as amended?*

I already noted in the background that the affidavit in reply was indeed filed out of the 15 days provided for by Order 12 r2(3) and the authority of Stop and See, supra.


Whereas an affidavit in reply should be filed and served within 15 days, in this particular case, the new application (M. A No. 155 of 2022) was not served on the 1st Respondent personally but on his former Advocates, M/s Bashasha & Co. Advocates.

This court opines that this being a new suit, the application ought to have first been served on the 1 st Respondent personally who then would have intimated to the court process server that his Advocates in the earlier suit still had instructions to represent him in other subsequent suits. This was not done. Instead the court process server assumed that the former Advocates still had instructions and proceeded to serve them with the Application.

Owing to the above reason it is not clear as to when exactly the Respondent got to know of the application and when he actually instructed counsel to prepare his reply. I am inclined to believe that the late filing and service of the affidavit in reply were mistakes of counsel which ought not to be visited on the Respondent. *See Banco Arabe Espanol, supa*.

3. What are the available remedies to the parties?

It is also the opinion of this court that the instant application on points of law was not necessary as the same could have been raised in the main application without having to waste this court and parties' resources. Accordingly, the application is hereby dismissed with costs to the 1st Respondent.

I so order.

Orders;

1. The Application is dismissed with to costs to the 1st Respondent.

Dated at Masaka and delivered electronically this 6th day of June 2023


HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA