Wakilii

Singh v Hopley (Civil Appeal No. 5-35.)

East African Court of Appeal · [1935] EACA 145 · 1935 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Resident Magistrate's order granting conditional leave to defend under Order 33
Decision
Appellant granted unconditional leave to defend on retainer issue; ex parte judgment for Sh. 187 stands on remaining items

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

When a defence discloses a triable issue, unconditional leave to defend should be granted. The court held that the appellant raised a triable issue regarding whether the agreed retainer was Sh. 250 or Sh. 450, warranting unconditional leave to defend on that issue. However, no triable issue existed regarding the remaining items where the appellant produced no accounts and admitted owing an uncertain amount.

Outcome

Appellant granted unconditional leave to defend on retainer issue; ex parte judgment for Sh. 187 stands on remaining items

Facts

The respondent brought suit under Order 33 of the Civil Procedure Ordinance. The appellant filed a written statement of defence denying he owed anything to the respondent. The Resident Magistrate granted conditional leave to defend, requiring the appellant to pay the claimed amount with costs into court within ten days. The appellant failed to make the deposit and the respondent obtained ex parte judgment. The appellant appealed the refusal to grant unconditional leave to defend. During oral examination, the appellant admitted owing something but disputed the amount of the retainer, claiming it was Sh. 250 rather than the Sh. 450 claimed by the respondent.

Issues

  1. Whether the learned Resident Magistrate erred in granting only conditional leave to defend when the appellant raised a triable issue regarding the agreed retainer amount.

Orders

  • Appeal allowed in part.
  • Order of the trial magistrate set aside as regards the issue whether the retainer in S.C. C.C. 280/32 was Sh. 450 or Sh. 250.
  • Appellant granted unconditional leave to defend on the retainer issue.
  • Remainder of the appeal dismissed.
  • Ex parte judgment to the extent of Sh. 187 stands.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Leave to Defend — Triable Issues
When a defence discloses a triable issue, unconditional leave to defend should be given rather than conditional leave requiring payment into court or security.
Civil Procedure — Order 33 Applications — Discretion of Court
Under Order 33, three courses are open to the magistrate: to pronounce judgment for the plaintiff unless a good defence is disclosed; to grant conditional leave to defend when there is some shadow of defence and the court is prepared very nearly to give judgment for the plaintiff; or to grant unconditional leave to defend when there appears to be a substantial triable issue.
Civil Procedure — Conditional Leave to Defend — Payment into Court
Following Jacob v Booth's Distillery Co, the condition of payment into court or giving security is rarely imposed where a triable issue exists, though the discretion still exists.

Legislation cited (1)

  • Civil Procedure Ordinance Order 33

Cases cited (1)

  • Jacob v Booth's Distillery Co (1901) 85 LT 263

Full judgment

↓ Download PDF

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

Singh v Hopley (Civil Appeal No. 5-35.) [1935] EACA 145 (1 January 1935)
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.