Irumba v Kazooba (Miscellaneous Application 53 of 2024) [2024] UGHC 940 (28 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC. APPLICATION NO. 053 OF 2024 (ARISING FROM HCT-01-CV-CS-0036 OF 2024)**

**STEPHEN IRUMBA :::::::::::::::::::: APPLICANT**

**VERSUS PETER KAZOOBA ::::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

The applicant filed this application through a notice of motion under provisions of section 98 of the Civil Procedure Act Cap. 282, Section 33 of the Judicature Act Cap. 16, Order 52 Rule 36 and Order 52 Rule 1, 2 & 3 of the Civil Procedure Rules. The applicant seeks the following orders:

- a) Unconditional leave to appear and defend Civil Suit No. 36 of 2024. - b) Costs of the application.

#### **Background**

The respondent filed a summary suit vide Civil Suit No. 36 of 2024 against the applicant for recovery of a liquidated sum of UGX. 190,000,000/=. The respondent's claim against the applicant is that on the 22nd of November 2023, he sold to the applicant property situate at Rwengoma in Fort Portal Tourism City at a consideration of UGX. 380,000,000/=. The applicant made a part payment of UGX. 210,000,000 but did not pay the outstanding balance on time contrary to the terms of the sales agreement despite taking vacant possession of the property.

In this application, the applicant seeks leave to appear and defendant Civil Suit No. 36 of 2024 under provisions of order 36 Rule 4 of the Civil Procedure Rules.

#### **Grounds in Support of the Application**

The grounds in support of the application are set out in the affidavit of Stephen Irumba, the applicant herein, the gist of which is that;

- a. On the 22nd day of November 2023, the applicant bought the respondent's property comprised in FRV KBO 204 Folio 1 Plot 13, land situate at Kyabukonkoni Road, Rwengoma Ward, Central Division Fort Portal Tourism City at a consideration of UGX. 380,000,000/=. - b. The terms of the agreement included, among other things; the applicant pays UGX. 170,000,000/= by 5th December 2023, the respondent was to complete the outstanding works on the building per the building plan; and the applicant was to pay the outstanding balance of UGX. 210,000,000/= by 31st March 2024, upon which the applicant would take full possession of the property. - c. The applicant paid the respondent UGX. 170,000,000/= per the terms of the sales agreement but the respondent did not complete the outstanding works on the property by 31st March 2024. - d. The applicant instructed his lawyers who filed Civil Suit No. 37 of 2024 against the respondent for breach of contract. - e. The applicant has never failed or refused to pay the outstanding balance of UGX. 190,000,000/= as claimed by the respondent but it is the respondent who has failed to complete the remaining works on the property as per the terms of the sales agreement.

- f. The applicant has a plausible defence with a high chance of success. - g. If this application is not allowed, Civil Suit No. 37 of 2024 will be rendered nugatory.

The Respondent filed an affidavit in reply opposing the application on the following grounds.

- a. The applicant has failed to pay the outstanding balance as per the terms of the sales agreement despite taking vacant possession of the property. - b. The respondent complied with the terms of the agreement, but the applicant deliberately refused to pay the outstanding balance. - c. The application is devoid of merit and should be dismissed with costs to the respondent.

## **Representation and hearing.**

Mr. Patrick Nyakaana represented the applicant while Mr. Timothy Atuhaire represented the respondent. Counsel for the applicant filed written submissions which I have considered in this ruling.

## **Issues for determination**

- 1. Whether the application raises sufficient grounds for this court to grant unconditional leave to the applicant to appear and defend Civil Suit No.36 of 2024. - 2. What remedies are available to the parties?

## **Resolving issues**

**Issue 1:** Whether the application raises sufficient grounds for this court to grant unconditional leave to the applicant to appear and defend Civil Suit No.36 of 2024.

## **Submission by Counsel for the Applicant on Issue 1**

Counsel for the applicant argued that the principles governing the grant of unconditional leave to appear and defendant were listed in the case of *Miter Investments v. East African Portland Cement Co. Ltd HCMA 336 of 2012* and they include; issues or questions of law which are in dispute and which ought to be tried; a state of facts which leads to the inference that at the trial of the action, the applicant may be debarred of all the powers to defend the demand upon him; and a genuine defence of fact or law.

Counsel for the applicant further argued that each party was accusing each other of breach of contract, which is an issue that can only be resolved in a full trial.

Counsel for the applicant also argued that there is a triable issue in the instant case which merits the grant of the application. Counsel referred this court to the case of *Makula Interglobal Trade Agency v. Bank of Uganda [1985] HCB 65.*

## **Court's Determination of Issue 1**

Under Order 36 Rule 4 of the Civil Procedure Rules, a defendant who is served with a summons under Order 36 Rule 2 of the Civil Procedure Rules may seek leave to appear and defend the suit.

It is trite law that for an application for leave to appear and defend to be granted, the applicant must show the court that there is a bonafide triable issue of fact or law that he or she shall advance at the trial. In the case of *Makula Interglobal Trade Agency v. Bank of Uganda (supra),* the court held that:

> *"Before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. When there is a reasonable ground of defence to the claim, the plaintiff is not entitled to a summary judgement. The defendant is not bound to show a good defence on the merits but should satisfy the court that there was an issue or question in dispute which ought to be tried, and the court shall enter upon the trial of issues disclosed at this stage."*

In the case of *Harold Wejuli (Administrator of the Estate of the Late George Alex Wejuli) & Another v. Agrrey Bwire HCMA Nos. 656 and 657 of 2019,* Hon Justice Ssekaana Musa, quoting the case of *Children of Africa v. Sarick Construction Ltd HCMA No. 134 of 2016* held that:

> *"In an application for leave to appear and defend a summary suit, there must be sufficient disclosure by the applicant of the nature and grounds of his or her defence and the facts upon which it is founded. Secondly, the defence so disclosed must be both bonafide and good in law. A court that is satisfied that this threshold has been crossed is then bound to grant unconditional leave. Where court is in doubt whether the proposed defence is being made in good faith, the court may grant conditional leave, say by ordering the*

## *defendant to deposit money in court before leave is granted."*

In the instant case, the applicant by way of affidavit has shown the court that the contract from which the respondent's claim arose is one of the sale of property where the respondent himself is alleged to have breached the terms of the agreement and therefore he is not entitled to the liquidated sum as sought in the summary plaint. The applicant has already filed Civil Suit No. 37 of 2024 against the respondent, which is premised on the same facts, for breach of contract.

Having addressed my mind to the facts as pleaded in the affidavit in support of this application and the averments in plaint vide Civil Suit No. 37 of 2024, it is my considered view that the applicant has demonstrated to this court that he has a bonafide defence which raises a triable issue. Therefore, the respondent is not entitled to a summary judgement.

In the premises, unconditional leave is hereby granted for the applicant to file a written statement of defence. Costs of the application shall be in the cause.

I so order.

Dated at Fort Portal this 28th day of August 2024.

**Vincent Emmy Mugabo Judge**