Wakilii

Rwakiseta v Lonrho Cotton (U) Ltd (Civil Appeal No. 44 of 2002)

Court of Appeal · [2003] UGCA 47 · 2003 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to a civil appeal from a High Court decree entered under summary procedure
Decision
Preliminary objection dismissed; appeal held properly before the Court and to proceed on its merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the respondent's preliminary objection that the appeal was incompetent. It held that, although the appellant never obtained leave to appear and defend under Order 33 of the Civil Procedure Rules and did not appeal the refusal of leave, sections 66 and 69 of the Civil Procedure Act gave him a right to appeal against the ex parte decree of the High Court. The Court further rejected the argument that the appeal was academic, noting that if the appeal succeeded it retained the options available to the High Court under Order 33 rule 11 and was not bound to require a fresh application for leave. The appeal was held to be properly before the Court and directed to proceed on its merits.

Outcome

Preliminary objection dismissed; appeal held properly before the Court and to proceed on its merits

Facts

In 1998 the respondent filed a suit under Order 33 of the Civil Procedure Rules against the appellant to recover US$64,277 it had advanced to him, secured by an equitable mortgage on his property. The appellant was served with summons on 25 September 1998 but did not apply for leave to appear and defend within the prescribed period. Instead he filed an application to set aside an ex parte decree that did not yet exist; the court struck it out as incompetent and, the statutory period having lapsed, entered judgment for the respondent on 24 March 1999. On 16 April 1999 the appellant applied to stay execution, set aside the judgment and obtain leave to appear and defend; that application was dismissed on 10 March 2000 for being out of time and for want of an extension. The appellant did not appeal that refusal but instead appealed against the ex parte decree dated 24 March 1999, prompting the respondent's preliminary objection.

Issues

  1. Whether the appeal against a decree entered under summary procedure (Order 33) is properly before the Court of Appeal.
  2. Whether a defendant who has not obtained leave to appear and defend under Order 33 can validly appeal against the resulting default decree.
  3. Whether the appeal is meaningless or academic because the head suit would remain in the High Court even if the appeal succeeded.

Orders

  • The preliminary objection is dismissed with costs to the appellant.
  • The appeal is to proceed on its merits.

Rules and key headnotes

Civil Procedure — Summary Procedure (Order 33) — Right of Appeal Against Ex Parte Decree
A defendant who has not obtained leave to appear and defend a suit brought under Order 33 of the Civil Procedure Rules is nonetheless entitled, under sections 66 and 69 of the Civil Procedure Act, to appeal against the ex parte decree of the High Court, with leave of court where required.
Civil Procedure — Summary Procedure (Order 33) — Options Available to Defendant After Default Decree
After a default decree under Order 33, a defendant may either apply under Order 33 rule 11 to set aside the decree and obtain leave to appear and defend, or exercise the statutory right of appeal against the decree under sections 66 and 69 of the Civil Procedure Act; the two remedies are distinct.
Civil Procedure — Appeals — Whether Appeal Academic
An appeal against an ex parte decree under Order 33 is not rendered academic merely because the head suit would remain, since an appellate court that allows the appeal retains the discretionary options available to the trial court under Order 33 rule 11 and is not bound to require the defendant to reapply for leave to appear and defend.

Legislation cited (6)

Cases cited (3)

  • Bombay Flour Mill vs. Chambhai Holal [1962] EA 803 at page 806
  • UTC vs. Count De La Pasture [1954] EACH 163
  • Uganda Electricity Board v Charles Kabagambe (Civil Appeal No. 58 of 2000)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rwakiseta v Lonrho Cotton (U) Ltd (Civil Appeal No. 44 of 2002) [2003] UGCA 47 (27 November 2003)
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.