Sambih brothers Ltd v Scoul (MISC. APPLICATION NO. 28 95)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that where an application for leave to appear and defend under summary procedure has been dismissed, the applicant cannot bring a fresh application without first having the dismissal set aside. The proper course is to appeal the dismissal or apply under Order 9 rule 20 CPR to have it reinstated. Preliminary objection upheld; fresh application dismissed.

Outcome

Application dismissed on preliminary objection

Facts

The applicant/defendant had earlier applied for leave to appear and defend a suit filed under summary procedure (Order 33 CPR). That application was dismissed on 14 July 1995. The applicant then brought a fresh Notice of Motion seeking leave to appear and defend, purportedly under Order 33 and Order 9 CPR. The respondent/plaintiff raised a preliminary objection that the application was improperly brought, as the applicant should have first applied under Order 9 rule 20 to set aside the earlier dismissal or appealed that dismissal.

Issues

1. Whether the Notice of Motion was properly brought under Order 33 and Order 9 of the CPR or whether it should have been brought under Order 9 rule 20.
2. Whether the applicant could seek leave to appear and defend without first applying to set aside the earlier dismissal of the same application.

Orders

• Preliminary objection upheld.
• Fresh application for leave to appear and defend dismissed.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Rules Order 33
• Civil Procedure Rules Order 9 rule 20

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