Wakilii

Attorney General & Anor v Westmont Land (Asia) BHD & 2 Ors (Misc. Appl. Nos 593 & 595 of 1999) (Misc. Appl. No. 593 & 595 of 1999)

High Court · [1999] UGHC 9 · 1999 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Applications for stay of proceedings pending arbitration arising from High Court Civil Suit No. 476 of 1999
Decision
Default judgment entered against first defendant; matter to proceed to hearing for formal proof of damages

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court struck out both applications for stay of proceedings pending arbitration. The filing of a notice of intention to defend does not constitute entering appearance, which has been abolished under the Civil Procedure Rules. An application under Section 17 of the Arbitration Act requires entry of appearance as a condition precedent. Since entering appearance no longer exists, the procedure under Section 17 has become impossible. The applicant should have filed a defence within the prescribed time. Default judgment entered against the first defendant for failure to file a defence.

Outcome

Default judgment entered against first defendant; matter to proceed to hearing for formal proof of damages

Facts

The plaintiffs issued Civil Suit No. 476 of 1999 against three defendants on 6 May 1999. The first defendant was served on 7 May 1999. Prior to filing suit, the plaintiffs sent a demand notice on 22 April 1999 proposing arbitration and giving ten days to respond. The deadline elapsed on 2 May 1999 without response. The plaintiffs advised on 4 May 1999 that they would commence litigation. The first defendant's counsel indicated agreement to arbitration on 5 May 1999, but the plaintiffs received this letter late on 6 May 1999 after filing suit. The first defendant filed a notice of intention to defend on 27 May 1999 and simultaneously filed two applications for stay of proceedings pending arbitration, but never filed a defence.

Issues

  1. Whether the High Court should stay proceedings pending arbitration under Section 17 of the Arbitration Act when the applicant filed an application under Order 9 rule 1B of the Civil Procedure Rules.
  2. Whether the abolition of entering appearance under the Civil Procedure Rules affects applications for stay of proceedings under Section 17 of the Arbitration Act.
  3. Whether the filing of a notice of intention to defend constitutes entering appearance for purposes of Section 17 of the Arbitration Act.
  4. Whether the applicant took a step in the proceedings by filing applications for stay instead of filing a defence.

Orders

  • Both applications (Misc. Appl. Nos. 593 and 595 of 1999) struck out with costs.
  • Default judgment entered in favour of the plaintiffs against the first defendant.
  • Plaintiffs directed to take out a date for formal proof of unliquidated damages.

Rules and key headnotes

Civil Procedure — Effect of Amendments — Abolition of Entering Appearance — Consequence for Arbitration Applications
The 1998 amendments to the Civil Procedure Rules abolished the requirement for entering appearance, making the filing of a written statement of defence the first step in proceedings. A notice of intention to defend under Order 9 rule 1B(1) is not equivalent to entering appearance and does not satisfy the condition precedent for applications under Section 17 of the Arbitration Act.
Arbitration & ADR — Stay of Proceedings — Section 17 Arbitration Act — Entry of Appearance Required
An application under Section 17 of the Arbitration Act for stay of proceedings pending arbitration is conditioned on first entering appearance. Where the Civil Procedure Rules have abolished entering appearance, the procedure under Section 17 becomes impossible and the defendant must instead file a defence and apply for extension of time if necessary.
Civil Procedure — Objections to Jurisdiction — Order 9 Rule 1B — Scope and Interpretation
An application under Order 9 rule 1B(1) of the Civil Procedure Rules is limited to disputes relating to the service of summons or irregularities affecting the court's jurisdiction. The expression 'any other ground' in rule 1B(1)(h) must be read ejusdem generis with the preceding grounds and does not extend to applications for stay of proceedings pending arbitration, which is a matter of substance, not procedure.
Arbitration & ADR — Arbitration Agreement — Not an Objection to Jurisdiction — Court May Exercise Jurisdiction
The existence of an agreement to submit disputes to arbitration is not an objection to the jurisdiction of the court, but merely a reason the court may abstain from exercising jurisdiction. An action may properly be commenced in court in respect of a dispute falling within a valid arbitration agreement.
Civil Procedure — Default Judgment — Failure to File Defence — Order 9 Rule 3
Where a defendant fails to file a defence within the prescribed time and the plaintiff seeks to proceed by default, the plaintiff must file an affidavit of service and failure to file a defence. Filing a written statement of defence, not entering appearance, is now the first step in proceedings following the 1998 amendments.

Legislation cited (14)

Cases cited (1)

  • A.N. Pharkey v Worldwide Agencies Ltd (15 EACA 1)

Full judgment

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Attorney General & Anor v Westmont Land (Asia) BHD & 2 Ors (Misc. Appl. Nos 593 & 595 of 1999) (Misc. Appl. No. 593 & 595 of 1999) [1999] UGHC 9 (6 July 1999)
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.