Wakilii

Abubakar v Muhwezi (Civil Suit 167 of 90)

High Court · [1992] UGHC 34 · 1992 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by defendant under Order 33 rules 3 and 4 and Order 48 rules 1, 2 and 3 of the Civil Procedure Rules seeking leave to appear and defend summary suit
Decision
Defendant granted leave to defend suit; matter set down for hearing on merit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the defendant's application for leave to appear and defend a summary suit for recovery of possession of leased premises. The court held that the defendant had presented triable issues on points of law, and given the chequered history of litigation between the parties involving the same subject matter, it would not be wise to allow the suit to proceed undefended. The defendant was given 10 days to file a written statement of defence.

Outcome

Defendant granted leave to defend suit; matter set down for hearing on merit

Facts

The plaintiff landlord had made a book re-entry through the Registrar of Titles following termination of the defendant tenant's lease over certain premises. In Misc. Application No. 49/89, the defendant had sought to nullify the termination and cancel the re-entry, but this application was dismissed by Justice Ntabgoba on 3 January 1990. The defendant's appeal to the Supreme Court was struck out as time-barred on 19 April 1991. The defendant's subsequent application for review of Justice Ntabgoba's ruling was dismissed on 18 November 1991. A further application for leave to appeal that dismissal to the Supreme Court remained pending. Meanwhile, the plaintiff filed Civil Suit No. 167/90 under Order 33 seeking an order for vacant possession, arrears of rent, and mesne profits. The defendant applied for leave to appear and defend this summary suit, arguing that although there was book entry at the land office, he had not given physical possession and that the matters before the Supreme Court involved the same issues.

Issues

  1. Whether the defendant should be granted leave to appear and defend the suit under Order 33 rule 4 of the Civil Procedure Rules.
  2. Whether the defendant has disclosed a bonafide triable issue of fact or law.
  3. Whether allowing the suit to proceed undefended would prejudice the defendant's pending application for leave to appeal to the Supreme Court.

Orders

  • Application granted as prayed.
  • Defendant granted leave to appear and defend the suit.
  • Defendant given 10 days from 13 October 1992 to file written statement of defence.
  • Case to be set down for hearing on merit.
  • Costs of this application to be in the cause.

Rules and key headnotes

Civil Procedure — Summary Suits — Order 33 — Test for Leave to Appear and Defend
A defendant applying for leave to appear and defend under Order 33 rule 4 of the Civil Procedure Rules is required to show by affidavit or otherwise that there is a bonafide triable issue of fact or law, and need not at this stage show a good defence on the merit but must satisfy the court that there is an issue or question in dispute which the court ought to try.
Civil Procedure — Summary Suits — Plausible Defence — Standard Required
Where it appears to the court that there is a reasonable ground of defence to the claim, the plaintiff is not entitled to summary judgment. The court must study the defence raised and ascertain whether it raises a real issue and not a sham one, in the sense that if the facts alleged by the defence were established there would be a plausible defence.
Civil Procedure — Summary Suits — Pending Appeal — Effect on Leave to Defend
Where parties are involved in protracted litigation over related subject matter with applications pending before higher courts, the court may exercise its discretion to grant leave to defend a new summary suit to avoid judicial confusion and ensure proper adjudication, even where execution proceedings might otherwise proceed pending appeal.

Legislation cited (5)

Cases cited (2)

  • Maluku International Trade Agency Ltd v Bank of Uganda (1983 HCB 63)
  • Souza Figueredo & Co. Ltd v Moorings Hotel Co. Ltd [1959] EA 423

Full judgment

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Abubakar v Muhwezi (Civil Suit 167 of 90) [1992] UGHC 34 (13 October 1992)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.