THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
CIVIL SUIT NO.304 OF 2002
ERINEST KABYANGA :::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
SANYU PATRICK & 4 OTHERS::::::::::::::::::::::::::::::::: DEFENDANTS
RULING
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
The plaintiff by this suit claims that the defendants are not bonafide owners of land comprised in
Gomba Block 28 plot l1 (hereinafter called the suit land) as their ownership was obtained by
fraud and thereby seeks cancellation of their titles, a permanent injunction damages and costs.
The defendants deny the allegations and in their defence, the 1 st, 3rd and 4th defendants raised a
counterclaim seeking a permanent injunction restraining the plaintiff from claiming an interest in
the suit land general and general damages in trespass.
Before hearing of this case could recommence, counsel for the plaintiff raised an objection that
the counterclaim offends the provisions of 0.8 r 8 CPR in that it does not bear a title and as such,
the court is left to speculate who is the counterclaimant or counter-defendant. Relying on the
cases of Western Uganda Cotton Co. Ltd Vs George Asaba CS.353/09 and Namuddu Gasta
T/a Electrol Centre Vs Kansanga Miracle Centre HCCS. No.417/05 he argues that the rule
is mandatory and its breach means that the counterclaim is not properly before court. He argued
in addition that the counterclaim being a separate suit it required to have a summary of evidence.
He prayed the same be struck out with costs as being incompetently filed
In reply, counsel for the named defendants stated that the counterclaim has existed in the current
form since 2001 with no objection being raised and that in any case, the absence of a title is only
a want of form which does not render the WHOLE
suit nugatory. He argued that the court in the case of Western Uganda Cotton Co. (supra)
clarified that a title would be required only where a defendant has added other parties to the
counterclaim or where issues have changed, which is not the case here He prayed that should
the court find merit in the objection, then the respondent be given leave to file the counterclaim
afresh in the format the plaintiff considers proper and that his prayer would cause no injustice to
the plaintiff, which would save court from a multiplicity of suits. In response, counsel for the
plaintiff argued that a suit without parties cannot be amended and in any case, there is no prayer
to amend the counterclaim.
Both parties were permitted to file authorities in support of their brief augments which they did.
The relevant law on the nature and format of counterclaims would be 0.8 CPR and in particular
0.8(2) which provides as follows;
A defendant in an action may set off, or set up by way of counterclaim against the claims
of the plaintiff, any right or claim, whether the setoff or counterclaim sounds in damages
or not, and the setoff or counterclaim shall have the same effect as a cross-action, so as
to enable the court to pronounce a final judgment in the same action, both on the original
and on the cross-claim.
It is then provided under rule 8 that;
Where a defendant by his or her defence sets up any counterclaim which raises questions
between himself or herself and the plaintiff together with any other persons, he or she
shall add to the title of his or her defence a further title similar to the title in the plaint,
setting forth the names of all the persons who, if the counterclaim were to be enforced
by cross-action, would be defendants to the cross-action and shall deliver to the court his
or her defence for service on such of them as are parties to the action together with his or
her defence for service on such of them as are parties to the action together with his or
her defence for service on the plaintiff within the period within which he or she is
required for file his or her defence. (Emphasis added)
When read together with the authorities provided by both counsel, the two sources of law are
quite instructive. Although the court in Western Uganda Cotton Co. Ltd Vs Asaba (supra)
was resolving an objection for failure to serve a counterclaim within the statutory period, it had
opportunity to make comments similar to the objection before me. In particular, I find the
quotation from Odger on pleadings and practice, 20th Ed. at pages 222 and 233 useful.
“The defendant can also plead a counterclaim against the plaintiff along with some other
person, not already party to the action, described as a “defendant to
counterclaim”………………whenever such a counterclaim is pleaded, the defendant must
place at the head of his defence an additional title, stating the names of all persons whom
he has thus made defendants to his counterclaim and serve the counterclaim upon them”.
It seems to me that the requirement for a heading in a counterclaim would apply only where the
defendant has introduced a new party to the proceedings as a defendant to the suit. This would
serve to avoid any confusion on who are the old and new parties to the counterclaim, and the
actual parties who are the claimants and defendants to it. This would not be the case where the
parties in the suit have remained the same but interchanged only as a result of the counterclaim.
Indeed, Justice Lameck Mukasa in Nile Breweries Ltd Vs Brunal Ozunga T/a Nebbi Boss
Stores HCCS 580/06 was of the view that Rule 8 should be read together with all the other rules
in Order 8 which concern a counterclaim. It follows therefore in 0.8 r.9 that a person who is
added as a new party by reason of the counterclaim, is after the counterclaim is filed, summoned
to court by service upon them of the statement of defence and counterclaim in accordance with
the rules for regulating service of summons. Thereafter, they will join the suit as if they have
been served with summons in a suit.
Other than in the above circumstances, the law did not require a counterclaim to have a title
where the parties in the suit and counter suit are the same. Since a counterclaim is a suit by
itself, it is sufficient that the counterclaim contains the nature of the claim and the remedies
sought. This in my view has been satisfied by the 1 st, 3rd & 4th defendants who on page l2 of their
written statement of defence clearly show a heading “COUNTERCLAIM; and thereafter
succeeding paragraphs of their claim and reliefs sought. In any case, plaintiff’s counsel did not
indicate or show that the plaintiff had suffered any prejudice or misunderstood the nature of and
contents of the counterclaim only for the reason of the fact that the counterclaim did not bear a
heading in which the parties are mentioned.
I have confirmed that the defendants did file a summary of evidence attached to their pleadings
(see page 10 of their trial bundle). Although it did not specifically mention the counterclaim, its
absence would not be prejudicial to the plaintiff’s case.
In summary, it is my considered view that the two defects of the counterclaim are the type for
which the counterclaimants would have recourse to Article 126 (2) of the Constitution to allow
this court to have undue regard to those particular technicalities in preference to the tenets of
justice; see for example Utex Industries Vs AG SCCA No.52/95 which was adopted in Kasirye
Byaruhanga & Co Advocates Vs UDB SCCA 2/97. This is because, the default by the
counterclaimant does not go to the root of the pleadings and can be cured by amendment. Again
if I were to allow the objection, the counterclaim would be struck off and the defendant would be
compelled to file a fresh claim which may be complicated by limitation and result into
multiplicity of suits.
In conclusion, the objection is disallowed. However, I am unable to allow the alternative prayer
to re-file the counterclaim, which is not tenable in law where there is no withdrawal. Instead,
using my discretion under 0.6 r.19 and S.98 CPA, I permit the 1 st, 3rd and 4th defendants to amend
their counterclaim by inserting a full heading clearly specifying the parties intended to be
addressed therein. They are also permitted to file a summary of evidence that specifically
addresses the contents of the counterclaim. My orders are to be fulfilled within 14 days of this
ruling following which, hearing of the suit will commence.
I make no order for costs in respect of this ruling.
I so order.
EVA K. LUSWATA
JUDGE
12/5/2015
