THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)
MISCELLANEOUS APPLICATION NO. 150 OF 2020
(Arising from Civil Suit No. 25 of 2020)
CARLTON DOUGLAS KASIRYE :::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
SHEENA AHUMUZA BAGEINE a.k.a TASHA :::::::::::::::: RESPONDENT

BEFORE: HON. MR. JUSTICE BONIFACE WAMALA

RULING
Introduction
This application was brought by Notice of Motion seeking orders that:
1. A default judgment be entered against the Respondent in High Court
Civil Suit No. 25 of 2020 (hereinafter referred to as “the main suit”).
2. The main suit proceeds as if the Respondent had filed a defence.
3. The main suit be heard in the Respondent’s absence.
4. Costs of the application be provided for.

The grounds of the application are set out in the Notice of Motion and are also
contained in the affidavit in support deponed to by Carlton Douglas Kasirye,
the Applicant. Briefly, the grounds are that:
a) The Court issued the Respondent with summons to file a defence to the
Applicant’s claim in the main suit within 15 days.
b) The summons was duly and effectively served on the Respondent on the
23rd January 2020.
c) The 15 days that were allowed by the Court for the filing of the defence
expired on the 7th February 2020 but the Respondent has to date failed
to file and serve the Applicant with a Written Statement of Defence (WSD)
within the time limited by the law.
d) The Respondent has deliberately defied the summons and the suit ought
to proceed in the Respondent’s absence and as if she had filed a defence.

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 e) The Respondent was well aware of the time within which to file and serve
her WSD but opted not to do so. As such she put herself outside the
jurisdiction of this Court.
f) Given the Respondent’s dilatory conduct, the law entitles the Applicant
to enjoy the fruits of litigation.
g) It is in the interest of substantive justice that a default judgment is
entered against the Respondent and the suit proceeds as if she had filed
a defence and in her absence.

The Respondent opposed the application vide an affidavit in reply deponed to

by Sheena Ahumuza Bageine, the Respondent, in which she stated as follows:
a) The contents of the application and the supporting affidavit are baseless
and insufficient to support the grant of the orders sought. The
application has no merit and does not fulfil the conditions required to
enter a default judgment in the main suit.
b) The Respondent was served with the plaint and summons in the suit on
the 23rd day of January 2020 and her lawyers filed a defence on her
behalf on the 4th day of February 2020 which was within the prescribed
time of 15 days.
c) The said WSD was served on the Applicant’s lawyers who acknowledged
receipt and further went ahead to file a reply to the WSD on 26th
February 2020.
d) It is in the interest of both parties that the case is duly heard and
determined by the Court based on the evidence. The Respondent prayed
that the application be dismissed with costs.

The Applicant filed an affidavit in rejoinder whose contents I have also taken
into consideration.

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Hearing and Submissions
At the hearing, the Applicant was represented by Mr. Simon Tendo Kabenge
and Mr. Tendo Deogratius while the Respondent was represented by Ms. Mercy
Kamugisha. It was agreed that the hearing proceeds by way of written
submissions, which were filed by both Counsel. I will review and consider the
submissions in the course of resolution of the issues.

I need to point out, however, that in their submissions, Counsel for the
Respondent raised a preliminary point of objection to the main suit, which
became one of the issues for determination by the Court. I will therefore
consider the said matter as one of the issues before the Court and I will adopt
the issues as framed by Counsel for the Respondent.

Issues for determination by the Court

The issues for determination by the Court, therefore, are:
1. Whether the present application is properly before the Court.
2. Whether the Respondent filed a Written Statement of Defence.
3. Whether the Applicant is entitled to the remedies sought in the
application.

Resolution of the Court

Issue 1: Whether the present application is properly before the Court.

It was submitted by Counsel for the Respondent that this application is not
properly before the Court because the suit on which it is premised already
abated by operation of the law. Counsel cited the provisions of Order 11A Rule
1 (2) of the Civil Procedure Rules (CPR) as amended (2019) which provides that
“where a suit has been instituted by way of a plaint, the plaintiff shall take out
summons for directions within 28 days from the date of the last reply or rejoinder

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…”. Counsel further submitted that under sub-rule (6) thereof, if the plaintiff
does not take out a summons for directions in accordance with sub-rule (2)
above, the suit shall abate. Counsel submitted that the Plaintiff filed a reply to
the WSD on the 26th February 2020 and has never filed any summons for
directions before this Court as instructed under the rules. The main suit
therefore abated and should be considered as no more.

In the reply by the Applicant’s Counsel which is contained in the submissions

in rejoinder, Counsel submitted that Order 11A Rule 1 (4) (e) of the CPR as
amended creates an exception to the requirement under sub-rule (6) to the
effect that the “rule applies to all actions instituted by way of a plaint except an
action in which a matter has been referred for trial to an official referee or
arbitrator”.

Counsel for the Applicant submitted that the main suit was officially referred to
a referee of the court in the form of a Mediator under Mediation Cause No. 26
of 2020 on the 24th day of February 2020 and there are correspondences on
record which show that the case was undergoing mediation until the 27th July
2020 when the report of mediation was made returning the file for scheduling
conference after failure of the mediation process. Counsel therefore concluded
that the objection raised by the Respondent’s Counsel does not apply to the
main suit herein and the same ought to be rejected.

The first question is whether a court accredited Mediator is an “official referee”

within the meaning of Order 11A Rule 1 (4) (e) of the CPR as amended. Neither
the Civil Procedure Act (CPA) nor the CPR define the term “official referee.
According to the Black’s Law Dictionary, 5th Edition, p. 1151, a “Referee” is
defined as:
“A person to whom a cause pending in a court is referred by the court, to
take testimony, hear the parties, and report thereon to the court. Person

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who is appointed to exercise judicial powers, to take testimony, to hear
parties, and report his findings … He is an officer exercising judicial
powers, and is an arm of the court for a specific purpose …”

Under the Judicature (Mediation) Rules, No. 10 of 2013, “mediation” is defined

as “the process by which a neutral third person facilitates communication
between parties to a dispute and assists them in reaching a mutually agreed
resolution of the dispute”. A “Mediator” is defined as “a person eligible to
conduct mediation under these Rules”.

It is clear to me that by virtue of the role played by a Mediator, he/she

performs the function of an official referee of the Court. The Court refers a
pending cause to him/her to, among others, hear parties and report to court
depending on whether or not an agreement is reached towards an amicable
resolution of the dispute that is the subject of the cause pending before the
court. The person is exercising judicial powers for a specific purpose. A court
accredited mediator therefore fits well within the meaning of an official referee
as used under Order 11A Rule 1 (4) (e) of the CPR as amended.

It follows therefore that where a matter is referred by the Court to mediation,

the plaintiff would not be expected to take out summons for directions within
the 28 days provided for under sub-rule (2) of Rule 1 of Order 11A. The suit
would therefore fall under the exceptions provided for under sub-rule (4).

There is, however, a further question regarding reference of matters to

mediation. It was argued by Counsel for the Applicant that under Rule 4 (1) of
the Mediation Rules (supra), it is mandatory for every civil action to be referred
by the court for mediation before proceeding for trial. I need to point out,
however, that this was the legal position until the 25th day of January 2019
when the Civil Procedure (Amendment) Rules, S.I No. 33 of 2019 were passed.

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After the coming into force of the CPR as amended, the requirement for
mandatory mediation ceased to apply. This is because the Amendment Rules
set specific timelines from closure of pleadings up to the time of scheduling
before a Judicial Officer. Reference to mediation is therefore an option that can
be explored either during hearing the summons for directions or when the case
is placed before a Judicial Officer for scheduling or hearing. This is clear from
the provisions of Order 11A Rule 7 (2) of the CPR as amended and under the
Guidelines for Scheduling Conference provided for under Form 14B, Schedule
2, Part IV, item 2 (m) and 4 (o) of Appendix A as amended.

In the instant case, the timelines under the Amendment Rules were not
followed and the matter was referred to mediation in accordance with the old
position under the Mediation Rules. The reference was by the Court and, as
such, it cannot be blamed on the party. According to available evidence on
record, the mediation took place. Such was a lawful process which cannot be
invalidated simply because it was directed to be done at a different time than it
should have been. I have also taken cognizance of the fact that the Amendment
Rules are still new and they introduced radical positions that would require a
transition. Where a breach or an omission based on their application is not of
utmost substance, the court should be hesitant to apply them with full force.

In the circumstances therefore, it has not been proved that the main suit
abated on account of the application of the provisions of Order 11A Rule 1 (2) &
(6) of the CPR as amended. It follows therefore that the present application is
properly before the Court. The objection by the Respondent’s Counsel in this
regard is accordingly disallowed. The first issue is answered in the affirmative.

Issue 2: Whether the Respondent filed a Written Statement of Defence.

It was submitted by Counsel for the Applicant that the Respondent did not
duly file a WSD because under Order 8 Rule 1 (2) and 19 of the CPR, a WSD is

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only duly filed when the defendant delivers a copy on the court record, which is
signed and sealed by the Registrar and a duplicate copy is delivered at the
address of the opposite party within 15 days. Counsel relied on the decisions in
Simon Tendo Kabenge Vs Barclays Bank (U) Ltd & Another, SCCA No. 17
of 2015 and Mwesigwa Godfrey Phillip Vs Standard Chartered Bank,
HCMA No. 200 of 2011. Counsel therefore concluded that the Respondent
never filed a WSD as prescribed by the law and the purported WSD be struck
off the record and the Court should order the suit to proceed ex parte.

In reply, Counsel for the Respondent submitted that the Respondent was
served with the summons on 23rd January 2020 and filed her WSD on 4th
February 2020 which was within the 15 days prescribed by the law. Counsel
submitted that after the WSD being endorsed by the Court, the same was
served upon the Applicant’s Counsel to which the Applicant filed a reply on
26th February 2020. Counsel submitted that the Respondent perfectly obliged
with the provision under Order 8 Rule 1 (2) of the CPR. Counsel submitted that
on the other hand, Order 8 Rule 19 and Order 9 Rule 1 (1) of the CPR provides
for the mode of filing a defence and merely visits the responsibility of filing the
defence and serving the opposite party. Counsel argued that the said
provisions do not in any way direct that service to the opposite party ought to
be done in 15 days as suggested by Counsel for the Applicant. Counsel
reasoned that such was impractical as most of the time it depends on as and
when the Registrar endorses the WSD.

Counsel for the Respondent further submitted that in the present case, the
Applicant had suffered no injustice and there was no defect he was trying to
cure. Counsel submitted that the decisions in Simon Tendo Kabenge Vs
Barclays Bank (U) Ltd & Another (supra) and Mwesigwa Godfrey Phillip
Vs Standard Chartered Bank (supra) are distinguishable from the present
circumstances.

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In rejoinder, Counsel for the Applicant submitted that in this case, the
Registrar endorsed the WSD in time and there was no excuse on the
Respondent’s part not to have served the same within the prescribed time.
Counsel further submitted that the argument by the Respondent’s Counsel
that the rules do not in any way direct that service to the opposite party be
done within 15 days is a misconception of the law as clearly seen from the
Supreme Court decision in Simon Tendo Kabenge Vs Barclays Bank (U) Ltd
& Another (supra).

The relevant provisions of the CPR for purpose of this issue are Order 8 Rule 1
(2), Order 8 Rule 19 and Order 9 Rule 1 (1) thereof. I will set them out here
below.

Order 8 Rule 1 (2) of the CPR provides –

Where a defendant has been served with a summons in the form provided
by rule 1(1)(a) of Order V of these Rules, he or she shall, unless some other
or further order is made by the court, file his or her defence within fifteen
days after service of the summons.

Order 8 Rule 19 of the CPR provides –

Filing of defence
Subject to rule 8 of this Order, a defendant shall file his or her defence and
either party shall file any pleading subsequent to the filing of the defence
by delivering the defence or other pleading to the court for placing upon the
record and by delivering a duplicate of the defence or other pleading at the
address for service of the opposite party.

Order 9 Rule 1 (1) of the CPR provides –

Mode of filing deence

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 A defendant on or before the day fixed in the summons for him or her to
file a defence shall file the defence by delivering to the proper officer a
defence in writing dated on the day of its filing, and containing the name
of the defendant’s advocate, or stating that the defendant defends in
person and also the defendant’s address for service. In such case he or
she shall at the same time deliver to the officer a copy of the defence,
which the officer shall seal with the official seal, showing the date on
which it is sealed, and then return it to the person filing the defence, and
the copy of the defence so sealed shall be a certificate that the defence
was filed on the day indicated by the seal.

The above provisions have been subject of interpretation by the Supreme Court
in the case of Simon Tendo Kabenge Vs Barclays Bank (U) Ltd & Another
(supra). The Court, after reviewing the above stated provisions had this to say:
“… the law requires that a defendant files his/her defence within
15 days from the date of receipt of summons by delivering copies of
the WSD to a proper officer of court who shall then sign and affix
an official seal on the documents. After the seal is fixed, a copy of
the WSD shall be served onto the opposite party. It therefore
follows that filing involves two steps which are placing the WSD on
court record and further serving the same to the opposite party.”

On this finding, the Supreme Court agreed with the decision of the Court of
Appeal which had returned the same interpretation of the relevant provisions.
The Courts only differed on questions of fact leading to whether it was right in
the prevailing circumstances to strike out the WSD and enter a default
judgment. The Courts came to the same conclusion but upon different findings
of fact.

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In principle therefore, the law is that filing of a WSD is complete after the
defence is placed on the court record, signed by the Registrar, affixed with the
official seal and a copy served onto the opposite party. This process is
supposed to be done within 15 days from the date of receipt of summons by the
defendant.

In the instant case, the Respondent was served with the summons on 23rd
January 2020. The Respondent delivered the WSD to the court on 4th February
2020. The Registrar signed and affixed the official seal on the WSD on the 5th
February 2020. A copy of the WSD was served onto the Applicant on 11th
February 2020. It is clear from the above facts that the delivery to court of the
WSD, the signature by the Registrar and the affixing of the official seal were
done within the prescribed time. However, service of a copy to the opposite
party was done outside the prescribed time. There is no explanation from the
Respondent as to why the WSD which was ready for picking as early as 6th
February 2020 were not served onto the Applicant by 7th February 2020 which
was the last day for such action. In principle therefore, the filing of the WSD by
the Respondent was not complete and, in law, the WSD was not validly filed by
the Respondent.

The next question therefore is whether the Applicant is entitled to a default

judgment in such circumstances. I must say, I am uncomfortable with the use
of the term default judgment in the present circumstances. I am aware that the
term default judgment is in practice used in relation to judgments entered in a
suit claiming a liquidated demand where the defendant defaults on filing a
WSD. This happens under Order 9 Rules 6 and 7 of the CPR. The term is also
applied under Order 36 Rule 3 (2) of the CPR where, upon default of the
defendant to apply for leave to defend a summary suit, judgment and decree is
entered for the liquidated claim.

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I however do not agree that the use of the term default judgment extends to
other instances where a defendant defaults in filing a WSD. For instance,
under Order 9 Rules 8 and 9 CPR, where the claim is for pecuniary damages
only or detention of goods, where the defendant defaults in filing a WSD, an
interlocutory judgment is entered and the matter is set down for assessment of
damages. It should be noted that the term ‘interlocutory judgment’ is not used
interchangeably with ‘default judgment’.

Regarding Order 9 Rule 10 of the CPR, which is the relevant rule in the present
case, the rule clearly makes no mention of entry of any judgment. It connotes
that where the claim is neither based on a liquidated demand nor upon
pecuniary damages or detention of goods only, the suit shall proceed as if the
defendant has filed a WSD. This means that the plaintiff will prosecute the suit
as if it is defended. In such a situation, all issues in the suit are considered as
if they are in dispute and subject to proof by the plaintiff. There is therefore no
judgment to talk about. All the plaintiff expects from the court, upon proof that
no WSD was filed, is an order to proceed with the hearing of the suit ex parte
as directed under Order 9 Rule 11 (2) of the CPR.

I am further strengthened in the above view by the legal requirement that when
the suit is ordered to proceed ex parte under Order 9 Rules 10 and 11 (2) of the
CPR, a hearing notice should be served onto the defendant despite the fact that
he/she did not file a WSD. This is because the suit is proceeding as if he/she
had filed a WSD. Secondly, my further understanding of this requirement is
that in case the defendant receives the hearing notice when he/she either had
no notice of the suit or was prevented from filing a defence, they can come up
and take steps to obtain leave of the court to file a defence out of time. This
would save the court from going through a full trial and later be asked to set
aside the same.

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I have found it necessary to dwell on the above point in some detail because I
believe it has a bearing on my finding in this matter. My view is that the proper
order the Applicant ought to have sought herein when the defendant defaulted
in filing a WSD in time is an order to proceed with the suit ex parte; not a
default judgment. This is because the claim in the main suit is neither based
upon a liquidated claim nor on pecuniary damages only or detention of goods.
Assuming that the court allowed to grant the order to proceed ex parte, the suit
would have been fixed for hearing and the plaintiff would be directed to serve a
hearing notice upon the defaulting defendant. If the defendant by any chance
showed up after the order to proceed ex parte, she would have an opportunity
under the law to apply to the court for leave to file a WSD out of time.

The situation in the instant case is that the defendant actually filed a WSD on
record only that she did not complete the process. If the WSD is truck out, she
would have an opportunity to explain why the same was filed out of time. Since
she is already before the court, it would be in the most extreme of
circumstances that she is denied opportunity to defend. This therefore leads
me to the conclusion that striking out the WSD in the present circumstances
would only serve a matter of form. There would be no substance in such a
strict application of the relevant rule.

I am alive to the position that provisions on timelines are substantive

provisions of the law and should be treated as such. But I also find that there
is a danger of applying substantive provisions of the law with undue regard to
technicalities. The law is that substantive justice should be administered
without undue regard to technicalities. Where the court is being called to place
undue regard to technicalities in applying a substantive provision of the law,
the court ought to decline in obedience to the dictate under Article 126 (2) (e) of
the Constitution.

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In the circumstances therefore, although I have come to the conclusion that
the Respondent’s WSD was not validly filed within the prescribed time, I have
found it pertinent and in the interest of justice to validate the said WSD and
allow the hearing of the suit to proceed inter partes on the merits. I have not
found lawful justification to strike out the WSD and to order the hearing of the
main suit to proceed ex parte when the Defendant is right before the Court.
That is my finding on the second issue.

Issue 3: Whether the Applicant is entitled to the remedies sought in the

application.
The Applicant prayed that the WSD filed by the Respondent be struck out,
default judgment be entered and the Applicant is allowed to proceed with the
hearing of the suit ex parte. From the foregoing, the Applicant’s claim has not
been made out and these reliefs cannot be granted. The application has failed
and is accordingly dismissed with an order that the costs of the application be
in the cause.
It is so ordered.

Dated, signed and delivered by email this 11th day of December, 2020.

Boniface Wamala
JUDGE

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