China State Construction Engineering Corporation Limited v Kisekka & 4 Others (Miscellaneous Application 209 of 2023) [2023] UGCommC 206 (30 August 2023)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (coMMERCtAL DTVTSTON)

# Mtsc. APPLTCATTON NO. 0209 0t 2023

#### (ARTSTNG FROM CrVrL SUrT NO. 0059 OF 2023)

### CHINA STATE CONSTRUCTION ENGINEERING

CORPORATION LTD APPLICANT

#### VERSUS

1, DANIEL KISEKKA

2. PETER KATATAGA

3. KATO LABAN SSERWADDA

4. GLADYS NAKIBUULE KISEKKA

5. LILIAN SAGALA ABI RESPONDEN

### (Before: Hon. Justice Patricia Mutesi)

#### RULING

### Background

The Respondents filed Civil Suit No. 0059 of 2023 ('the main suit') by way summary procedure seeking recovery of UGX 50,000,000/= (Uganda Shillings Si Million) in rent arrears and costs of the suit from the Applicant. of

### The Application

The Applicant brought this application by way of a Notice of Motion under Or 36 rules 3 and 4 of the Civil Procedure Rules seeking unconditional leave appear and defend the main suit on grounds that it has a valid defence to the and it is in the interest of justice that it be heard. The application is supported the affidavit of Mr. Jiang Bo, the Applicant's Project Manager. The Respond opposed the application through an affidavit in reply sworn by the er to it by nt td Respondent, Mr. Kato Laban Sserwadda. The L't and 2nd Respondents, and Ronald Sebuguzi Kisekka, also filed Supplementary Affidavits supporting application. he r

ln the supporting affidavit, Mr. Jiang Bo stated that the Applicant had paid claimed rent arrears to the family's new bank account after receiving for instructions to do so from the family. ln the affidavit in reply, Mr. Kato contes the existence of the alleged formal instructions to change bank accounts. supplementary affidavits confirmed that the family had arrears and issued a receipt for the same to the Applicant. received the cla <sup>i</sup> ed he ed he al

## Representation

The Applicant was represented by Mr. Oluka James of M/s llukor Advocate Solicitors. The 3'd - 5'h Respondents were represented by Ms. Namanda lri who has holding brief for Sekidde Simon Peter from M/s Ssekidde Associa Advocates. & ah ed

## lssues arising from the Application

1. Whether this Application raises a bonafide defence or any triable iss warranting the grant of leave to appear and defend the main suit. es

2. What remedies are available to the parties.

## Decision

#### 1. Whether this Application raises a bonafide defence or any triable iss warranting the grant of leave to appear and defend the main suit. es

Leave to appear and defend a summary suit will be granted where an appli shows that he or she has a good defence on the merits, or that a difficult poin law is involved, or that there is a dispute which ought to be tried, or a real dis as to the amount claimed which requires taking into account to determine or other circumstance showing reasonable grounds of a bonafide defence (Mal lnteglobal Trade Agency v Bank of Uganda [1985] HCB 65). nt of te ny ku

At this stage, an Applicant need not convince the Court that there is a <sup>g</sup> defence on the merits and the court should not delve into a detailed analysi od of the merits or demerits of the applicant's defence. lt is sufficient for an applic to simply convince the Court that there is a bonafide triable issue of fact or that merits consideration by the Court through a full trial. nt

The main suit was commenced by the Respondents who are the beneficiaries 'representatives'of the deceased joint owners of the land comprised in Kyado Block 121 Plot 48 situate at Kitegomba, Nangabo Sub county, Kasangati T Council, Wakiso District. The Plaint does not clarify if the Respondents have ta out any probate or administration proceedings in respect of the estates of sa id deceased joint owners. n n e

Section 254 of the Succession Act Cap 162 (as amended) reserves the power sue on an estate's behalf, or to otherwise represent a deceased person, for administrator of the deceased's estate or the executor of the deceased's However, there is also a narrow rule established by the Supreme Court in lsr Kabwa v Martin Banoba Musiga, SCCA No. 52 of 1995 which permit beneficiary to sue in order to safeguard the estate from peril while he or pursues the grant of probate or letters of administration. to he a e

ln the absence of formal grants of probate or letters of administration in the m suit, it is important for this Court to investigate, as a preliminary matter, mandate under which the Respondents purport to represent their respect estates. The narrow rule in lsrael Kabwa (supra) can only save the main suit if Respondents show that, at all material times, they have been vigilantly pursu formal grants for the said respective estates. For this reason, I find that there <sup>i</sup> latent question of law and fact regarding the Respondents' /ocus standi in main suit which necessitates full consideration by this Court before any order be issued in their favour. in e i,s a e n

ln this case, the issue of proper representation of the respective estates is criti for practical reasons too. This case is not about non-payment of rent. lt is abou disagreement in the Respondents' family over the rightful recipient(s) of <sup>r</sup> from the Applicant. Even if this Court orders the Applicant to pay the arre claimed, a new group of beneficiaries could still crawl out of the woodwork a f months later and claim the same rent again. To entertain and conclusi rs ly a

determine the main suit, this Court ought to first ascertain whether that suit been presented by persons who are duly authorised to represent the respe deceased joint landlords in the suit tenancy. s

Regarding the claimed debt, it is not in dispute that the Applicant has already p the UGX 60,000,000 which the Respondents seek to recover in the main suit. Applicant adduced a receipt from the family dated 2nd January 2023 and a fa resolution dated 9th January 2023 confirming the payment. ln the Supplemen Affidavits it is acknowledged that the family received the rent arrears money. Respondents in their written submissions also conceded that the Applicant <sup>h</sup> paid the arrears but they contend that it was paid to the wrong persons and the wrong bank a cco u nt. t rY d to id

The change in bank accounts was communicated to the Applicant by the fa through a letter dated 19th November 2022. Upon verification of the signatu and information of the signatories to the attached resolution which dissolved t Respondents'estate management committee and appointed a new bank acco with new signatories, the Applicant duly paid the rent arrears of UGX 50,000, The 3'd Respondent denied any knowledge of the said family meeting <sup>a</sup> resolution in which the changes were approved. However, the 1't and Respondents acknowledge that the meeting took place and that the chang were duly approved by the family. ly t

Since it is an uncontested fact that the Applicant paid the claimed arrears, and t dispute now remains on only whether or not the payment was made to the rig account and persons, my view is that there is a real risk that the Applicant will vexed twice to pay arrears which it has already paid. lf this Court does not all the Applicant to appear and defend itself against the summary suit, there is a hi likelihood that there will be double payment and unjust enrichment on the part the Respondents' family.

ln the premises, lfind that the Applicant has a bonafide defence to the main <sup>s</sup> which is that it duly paid all the rent which has fallen due under the tenancy. T hypothesis merits this Court's consideration through a fulltrial. 5 Before I take leave of this matter, another critical issue that merits scrutiny is alleged impropriety of the Respondents' advocates' instructions. The 1st and Respondents, through their Supplementary Affidavits, denied instructing Ssekidde Associated Advocates to represent them in any action against Applicant. lt is apparent to me that M/S Ssekidde Associated Advocates may have had proper instructions to represent the 1't and 2nd Respondents. <sup>T</sup> concern points to potential professional misconduct and it needs to be f investigated at tria l. e nd e is ly

## 2. What reliefs are available to the parties.

Having found that this Application raises triable issues of law and fact, I make t following orders:

- i. This application is hereby allowed and the Applicant is grant unconditional leave to appear and defend the main suit. - . The Applicant shall file its defence to the main suit within 15 (fiftee days from the date of this ruling and duly serve the same upon t Respondent. - t. Costs of this Application sha ll abide by the outcome of the main suit.

Hon. Justice Patricia Mutesi JUDGE

(3olo8l23l