Leave to Defend A Summary Suit

Oburu & 4 Ors v Miyabelle & Anor (MISCELLANEOUS APPLICATION NO 1038 OF 2016) [2017] UGCOMMC 35 (27 April 2017);


Headnote and Holding: 

This was an application for leave to appear and defend a summary suit brought under the provisions of Order 36 rule 1 and Order 52 rule 3 of the Civil Procedure Rules.

The main issue before the court was whether the applicants’ defence was genuine and in good faith to warrant the leave. The respondents raised a preliminary objection to the application claiming that the application was filed out of time. They also accused the first and fourth applicants of forgery and submitted that representation by the applicants’ counsel was illegal since she had signed the supporting affidavit.

The court held that the application was filed in time due to lack of evidence to prove a false endorsement or forgery of the filed application. The court relied on Rule 9 of the Advocates (Professional Conduct) Regulations SI 267 – 2 in holding that the rule was not violated since the court was addressed in written submissions and this reduced the likelihood of counsel for the applicants to appear as a witness in the case. The court also applied the principle of company law that shareholders are separate from the company and declared that there was a misjoinder of the first to fourth applicants.

In conclusion, the court held that the application succeeded since the applicants raised a plausible defence to the claim. Accordingly, the applicants were given an unconditional leave to file a defence against the respondent’s suit within 14 days from the date of the order.

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