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Sambih brothers Ltd v Scoul (MISC. APPLICATION NO. 28/95) [1995] UGHCCD 6 (18 September 1995)
- Citation
- [1995] UGHCCD 6
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Civil Division (Uganda)
- Panel
- Kato, J
- Case number
- MISC. APPLICATION NO. 28/95
- Language
- English
More details
- Court
- HC: Civil Division (Uganda)
- Panel
- Kato, J
- Case number
- MISC. APPLICATION NO. 28/95
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that since the applicant's earlier application for leave to appear and defend had been dismissed, the applicant could not file a fresh application for leave without first applying to set aside the ex-parte dismissal under Order 9 rule 20 of the Civil Procedure Rules or appealing the dismissal. The present application, having been brought under the wrong provisions and without first addressing the prior dismissal, was therefore incompetent. The preliminary objection was upheld and the application was dismissed with costs to the respondent.
Court disposition
preliminary objection upheld; application dismissed with costs
Orders
- The preliminary objection is upheld.
- The fresh application for leave to appear and defend is dismissed with costs to the respondent.
02
Material facts
Parties
Sambih Brothers Ltd
Applicant Counsel: Mr. MukasaSCOUL
Respondent Counsel: Mr. Okalong03
Procedural history
Posture
Miscellaneous Application / Preliminary Objection Ruling
04
Questions and positions
Legal issues
- 01
Whether the application for leave to appear and defend was properly brought before the court under the correct provisions of the Civil Procedure Rules.
- 02
Whether the applicant could seek leave to appear and defend after a previous application for the same had been dismissed without first seeking to set aside the ex-parte dismissal.
Party arguments
- Applicant
- The applicant, through counsel Mr. Mukasa, argued that the application was properly lodged under Order 33 rule 11 of the Civil Procedure Rules as it sought only to set aside the judgment, not to reinstate the earlier dismissed application.
- Respondent
- The respondent, through counsel Mr. Okalong, objected that the application was improperly brought under Order 33 and Order 9 of the Civil Procedure Rules, instead of Order 9 rule 20, since the previous application for leave to appear and defend had already been dismissed.
05
Court’s reasoning
Legal principles
- 01
Order 9 rule 20, Civil Procedure Rules
A party whose application for leave to appear and defend has been dismissed must first apply to set aside the ex-parte dismissal or appeal the dismissal before making a fresh application for leave.
- 02
Order 33, Civil Procedure Rules
Applications must be brought under the correct procedural rules; failure to do so renders them incompetent.
06
Ratio, limits and disposition
Ratio decidendi
The court held that since the applicant's earlier application for leave to appear and defend had been dismissed, the applicant could not file a fresh application for leave without first applying to set aside the ex-parte dismissal under Order 9 rule 20 of the Civil Procedure Rules or appealing the dismissal. The present application, having been brought under the wrong provisions and without first addressing the prior dismissal, was therefore incompetent. The preliminary objection was upheld and the application was dismissed with costs to the respondent.
Court disposition
preliminary objection upheld; application dismissed with costs
- The preliminary objection is upheld.
- The fresh application for leave to appear and defend is dismissed with costs to the respondent.
Source and reliance status
HC: Civil 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: Civil Division (Uganda)
Judgment
THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA
MISC. APPLICATION NO. 28/95 (CIVIL SUIT NO. $11/95$ )
SAMBIH BROTHERS LTD :::::::::::::::::::::::::::::::::::
VERSUS
SCOUL Researces access as a sease as a sease as a sease a sease DEFENDANT BEFORE: THE HONOURABLE JUSTICE C. M. KATO
RULING
This ruling refers to a preliminary objection raised by Mr. Okalong the learned counsel for the respondent/plaintiff. The substance of the objection is that the Notice of motion which the applicant is pursuing was improperly brought before the court as it was brought under order 33 and order 9 of the CPR instead of being brought under Order 9 rule 20 of the CP. Mr. Mukasa the learned counsel for the applicant/ defendant was of the view that the application was properly lodged before this court under Order 33 rule 11 of the CPR as he was only applying for the / judgment to be set aside and he was not applying for re-instatement of the earlier application which had been dismissed.
The application which is the subject of this prelininary objection seeks for leave to appear and defend the suit which was filed under surmary procedure under Order 33 of CPR. I have looked at the Notice of motion, I have also listened to the arguments of the learned counsel in court and I have looked at the relevant provisions of Civil Procedure Rules and I am satisfied that this preliminary objection has been validily raised because the applicant had earlier on applied for leave to appear and defend but that application was dismissed on 14-7-95. The applicant cannot therefore be heard to raise the issue of leave to appear and defend without having applied for the ex-parte dismissal set aside. As for as this court is concerned the application for leave to appear and defend was dismissed and if the present applicant wanted it to be entertained again
the only course open to him was to appeal against that dismissal or to apply to this court under Order 9 rule 20 of the Civil Procedure Rules to have it reinstated.
In this circumstances the objection is upheld and fresh application for leave to appear and defend is dismissed with costs to the respondent/plaintiff:
$\mathcal{C}$
C. M. KATO
JUDGI $18 - 9 - 1995$
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