THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO 340 OF 2013
(ARISING FROM HIGH COURT CIVIL SUIT NO 217 OF 2013)
PAROMBO COTTON FARMERS LIMITED}.......................................... APPLICANT
VERSUS
UGANDA GINNERS AND COTTON
EXPORTERS ASSOCIATION LTD} ......................................................RESPONDENT
BEFORE HON MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
RULING ON PRELIMINARY OBJECTION TO THE APPLICATION
The Applicant's application was commenced by Chamber Summons under the provisions of
section 33 of the Judicature Act, section 98 of the Civil Procedure Act and order 41 rules 1 (a)
and (b), 7 (1) (a), order 50 rules (1) (3) and (6) of the Civil Procedure Rules. It is entitled
chamber summons for a temporary injunction and seeks an order to issue against the respondent,
its officials, of whatever description, agents, assigns and the respondents bankers, restraining
them from operating the respondents bank accounts held with such bankers or dealing with them
in any manner that permits, allows or authorises debits, withdrawals or transfers of any nature
from such accounts; till final disposal of the substantive application and for costs of the
application.
When the application was called for hearing, G.S Lule SC appeared for the applicant's while
Nestor Byamugisha appeared for the Respondent.
Counsel Nestor Byamugisha objected to the applicant's application whether it is for an interim or
temporary injunction. The gist of his objection is that High Court civil suit number 217 of 2013
from which the application arises was filed under order 36 of the Civil Procedure Rules by way
of special procedure. It's a special procedure because judgement in default of application for
leave to file a defence and defend the action is made within 10 days from the date of service of
the specially endorsed plaint on the defendant. Injunctions can be granted under order 36 upon
the grant of conditional leave. Thirdly the court can grant the remedy of a summary hearing by
consent under rule 9 of order 36 of the Civil Procedure Rules. His submission is that an
injunction can only be applied for and granted when there is a pending suit. It is granted pending
the hearing of the main suit. He submitted that under order 36 of the civil procedure rules, one
can only talk about final determination of the main suit after leave to defend has been granted.
The defendant can only be heard after leave. Consequently the applicant's application is
premature. The court can grant the necessary orders after granting leave and the application is an
abuse of the process of court.
In reply Counsel Godfrey Lule SC was unable to agree with the submissions of the respondents
counsel. He contended that an injunction is resorted to where the subject matter of the suit is in
danger of being alienated and the applicant believes it to be so. Senior Counsel submitted that
there is nowhere under order 36 that an application for an injunction cannot be taken. Moreover
the respondents counsel has not provided any authority is for his submission. When cases filed in
court, it remains pending until determined. This is also the case with a summary suit.
If this were not so, there would be no provision for the defendant to apply for leave to appear and
defend the suit. The case may be adjourned from time to time and indeed may take a while to be
heard. For instance an application to preserve the subject matter of the suit can be made. Where
the defendant decided to make an application, he cannot be heard to say that his case is not
pending. It was prudent to apply for an interim order to preserve the subject matter of the suit.
On a question put by court as to whether the applicant in this application intends to oppose the
respondent's application for leave to appear and defend the summary suit, counsel informed court
that the applicant will oppose the respondent's application for leave to appear and defend the suit
on the merits. Finally counsel submitted that the applicant’s application is maintainable and not
defeated.
In rejoinder counsel Nestor Byamugisha submitted that miscellaneous application number 340 of
2013 is for a temporary injunction. A close scrutiny however shows that it is not for a temporary
injunction. It seeks an interim order pending determination of itself. An injunction should be
pending application for leave to hear the defendant. It does not seek a restraint order pending
application for leave to appear and defend and should be dismissed.
I have carefully considered the preliminary objection of the respondents counsel as set out above.
Temporary injunctions are governed by order 41 of the Civil Procedure Rules. The applicant's
application is made under order 41 rules 1 (a) and (b), 7 (1) (a). As far as the first part of the rule
is concerned, it envisages that there is a suit where it is proved by affidavit or otherwise that any
property in dispute in the suit is in danger of been wasted, damaged, or alienated by any party to
the suit, or wrongfully sold in execution of a decree; or that the defendant threatens or intends to
remove or dispose of his or her property with a view to defraud his or her creditors. In such cases
the court may make an order for purposes of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of
the suit or until further orders. It is trite law that an application for a temporary injunction has the
main purpose of preserving the status quo.
Secondly order 41 rules 7 of the Civil Procedure Rules permits the court in an application by any
party to a suit on such terms as it thinks fit to make orders for the detention, preservation or
inspection of any property which is the subject matter of the suit or as to which any question may
arise in the suit.
The contention of the respondents counsel is that order 36 is a self executing order and any
remedies including interim remedies may be sought under that order. Order 36 deals with
summary procedure on especially endorsed plaint. Rule 4 thereof provides that an application by
a defendant served with summons for leave to appear and defend the suit shall be supported by
affidavit. It is an agreed fact or at least it is not in dispute that the defendant to the main suit has
filed an application for leave to appear and defend the action. The respondent's counsel
contended that leave to appear and defend the suit may be given unconditionally or conditionally
subject to such terms as the payment of monies into court, giving security, or time or mode of
trial or otherwise as the court may think fit. Secondly by consent of the parties the suit may be
finally disposed of in a summary manner. The most crucial rule in support of the respondent’s
objection is order 36 rule 10 of the Civil Procedure Rules which provides as follows:
"Where leave, whether conditional or unconditional, is given to appear and defend, the
court shall have power to give all directions and make all orders as to pleadings, issues,
and any further steps in the suit as may appear reasonable or necessary, or may order
the suit to be immediately set down for hearing."
If the respondents counsel’s submission is accepted, it would imply that a plaintiff who applies
for summary suit cannot file an application for the preservation, or maintenance of the status quo
pending the hearing of the suit. The contention is that there would be no hearing unless and until
leave to appear and defend the suit has been granted.
I have carefully considered the submissions. Upon the application of the respondent for leave to
appear and defend the suit, there is technically a suit pending between the parties. I must
emphasise that a suit is defined under section 2 of the Civil Procedure Act to mean all civil
proceedings commenced in any manner prescribed. The word "prescribed" means prescribed by
the rules. An application for leave to appear and defend the suit is indeed a suit within the
meaning of a suit under the Civil Procedure Act. The respondent's counsel further submitted that
it would be regular if the applicant was seeking an injunction pending the hearing of the
application for leave to appear and defend the suit. In that respect he complains about the manner
the order which is sought is phrased. The orders sought are pending disposal of the substantive
application.
It is my humble ruling that the submissions of the respondents counsel is on the merits of the
applicant’s application. So long as a suit has been filed in does not matter whether it is a
summary suit or an ordinary suit. In case a summary suit has been filed, a default judgement
cannot be entered where there is an application for leave to appear and defend the suit. In a
perfect situation, the application should be heard expeditiously. However with the court saddled
with the so many applications and civil suits to determine, it may not be possible to hear an
application for leave to appear and defend the suit expeditiously or as fast as may be desired by
the applicant. In such cases the court still retains its inherent jurisdiction to hear parties in an
application for any interim remedies which are available to parties in an ordinary suit. This
includes applications for preservation of property, temporary injunctions etc as the needs of the
case and the circumstances of the case may dictate. The orders which are made or the powers
prescribed in the rules under order 36 after leave whether conditional or unconditional is granted
under rule 10 of order 36 only come into operation after hearing the main application for leave.
Specifically order 36 rules 10 of the civil procedure rules makes it possible for the court to
invoke the jurisdiction under that rule after granting either conditional or unconditional leave.
Supposing that the applicant in the application for leave to appear and defend the suit has not
fixed it for hearing, should the plaintiff who is seeking a summary relief be barred from filing an
application for preservation orders? I do not think so. Whenever there are proceedings between
the parties in the nature of a suit, any of the parties can seek interim relief under order 41 of the
Civil Procedure Rules.
In those circumstances, the objections of the respondent in miscellaneous application number
340 of 2013 are misconceived and overruled. Costs shall be in the cause.
Ruling delivered on the 31st of May 2013 in open court
Christopher Madrama Izama
Judge
Ruling delivered in the presence of:
G.S Lule appearing with Peter Alan Musoke for the Applicant
Godfrey Sentongo MD represents the applicant in court
Nestor Byamugisha appears for the respondent.
Ginners present in court are:
1.
2.
3.
4.
5.
Richard Barwot ginner of Rhino Camp
Philip Upakawoth from Rhino Camp
Bwambale Adam from Nyakatonzi
Amdan Khan from Rwenzori
Rwatlal Jain from Olan Ginnery
6. Ogen Bob Alberto from East Acholi Coop Ltd
7. Narendra Patel from CN Cotton Ltd
8. Hitesh Panchmatia from Bon holdings Ltd
9. Wehoganzi Barnard from Bonhold ltd
10. Mrs Jolly Sabuni MD of cotton development organisation which regulates the cotton
subsector.
Charles Okuni: Court Clerk
Christopher Madrama Izama
Judge
31st May 2013