Kiwanuka v Kasumba (Miscellaneous Application 1984 of 2024) [2024] UGHCLD 240 (17 October 2024)

## **THE REPUBLIC OF UGANDA**

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

# **[LAND DIVISION]**

#### **MISCELLANEOUS APPLICATION NO. 1984 OF 2024.**

## *(ARISING FROM CIVIL SUIT NO. 0629 OF 2024)*

**KIWANUKA ROBERT :::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## **KASUMBA FREDICK COSMAS :::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **RULING.**

### *Introduction:*

1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act Cap 282, Order 36 rules 3 & 4, Order 52 rules 1,

2& 3 of the Civil Procedure Rules (CPR) for orders that: -

- i) The Applicant be granted unconditional leave to appear and defend Civil Suit No. 0629 of 2024. - ii) Costs of this application be provided for.

# *Background;*

- 2. That the Respondent instituted Civil Suit No. 0629 of 2024 against the Applicant for recovery of **Ug shs. 203,000,000/= (Uganda Shillings Two Hundred Three Million Only).** The Applicant and the Respondent executed a sale agreement dated 30th November 2022 for land comprised in Busiro Block 278 Plot 39 at Muyomba at a consideration of Ug shs 800,000,000/=. - 3. At the execution of the agreement the Applicant made a part payment of Ug shs 500,000,000/= leaving an outstanding balance of Ug shs 300,000,000/= to be paid within a period of 3 months upon delivering the certificate of title. - 4. The Respondent contends that the applicant made other payments leaving an outstanding balance of **Ug shs. 203,000,000/= (Uganda Shillings Two Hundred Three Million Only)** which he seeks to recover however the same is contested by the Applicant thus this application for leave to appear and defend Civil Suit No. 0629 of 2024.

# *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavits in support of the application deposed by **KIWANUKA ROBERT** the Applicant and are briefly that: - i) That I am not indebted to the Respondent in the sum claimed in the suit. That the land sale agreement was executed between myself

and the Respondent on 30th November 2022 in respect to land comprised in Busiro Block 278 Plot 39 at Muyomba at a consideration of Uganda shillings Eight Hundred million (Ug shs 800,000,000) and at the signing of the agreement Ug shs 500,000,000 was transferred onto the Respondent's account.

- ii) That I agreed to pay the balance of Uganda shillings Three Hundred Million (Ug shs 300,000,000) after a period of three (3) months after the certificate of title was ready, however the certificate of title was delivered on the 6th day of June 2023. - iii) That by the 06th day of June 2023, indeed I had paid the Respondent a total sum of Uganda shillings Ninety-Seven Million (Ug shs 97,000,000) as evidenced in paragraph 6 of the Respondent's affidavit in verification of the specially endorsed plaint. - iv) That on the 08th day of July 2023, I transferred Uganda Shillings Seven Million (Ug shs 7,000,000) to the Respondent and on 5th September 2023, I transferred Uganda Shillings One Million Fifty Million (Ug shs 150,000,000) to the Respondent's bank account. - v) That the Respondent's balance as per the payment made by myself is Uganda Shillings Forty-Six Million (Ug shs 46,000,000) which sum I haven't refused to pay but the Respondent according to the

land sale agreement breached clause 1 wherein he has up to date failed to grade the suit land and that I haven't received actual possession of the suit land.

vi) That I have a good defence to the suit and copy of my draft written statement of defence is attached and it is in the interest of justice and equity that this application for leave to appear and defend is allowed so that the suit is heard and determined on its merits.

## *Respondent's evidence;*

- 6. The application is opposed to by an affidavit in reply deposed by **KASUMBA FREDRICK,** the Respondent and are briefly that: - i) That the application was filed out of time and I shall raise a preliminary point of law to that effect to have this Application dismissed with costs and the orders prayed for in the summary suit be granted. - ii) That the summons and plaint in the main suit were served onto the Applicant on 12th July 2023, the application was filed on 23rd July, 2023 but only served onto the Respondent on 30th August 2024 who had through his lawyers applied for a default judgement on 30th July 2024.

- iii)That to the best of my knowledge, the Applicant did not seek and or obtain any orders from this court to extend the time for filling his application, its barred and thus constitutes a clear violation of court process. - iv) That in reply to paragraph 5 of the Applicant's affidavit in support, the certificate of title for the subject land (Block 278 Plot 39) was always available since 1999 when I got registered thereon but I could not hand it over to the applicant because he had not completed payment of the purchase price. - v) That the Applicant eventually convinced me to hand over to him in good faith my duplicate certificate of title and transfer forms signed in his favour before he paid my balance of the purchase price, and persuaded me under the pretext that he was going to subdivide and sell the land to several prospective buyers and he needed the certificate of title in his names for the transactions to be concluded successfully. - vi) That the Applicant being a land sale businessman, lured me to believe that this is industry practice and I would eventually get paid my money upon subdividing and selling the plots of land. The Applicant went ahead to transfer his portion of the land into his names and

proceeded to sell, subdivided plots to unknown third parties yet he has not paid my balance to date.

- vii) That whereas we executed the sale agreement for 8 acres of the subject land, the actual land that the applicant in fact took was 9 (nine) acres, which he does not allude to in his application and supporting affidavit and as a result of taking that one extra acre, the Applicant owes me an additional payment equivalent to Ug shs 100,000,000/=. - viii) That in November 2023, I together with the Applicant and in the presence of a witness reconciled the outstanding balance owed to be over 203,000,0000/=. - ix)That in response to paragraph 6 of the Applicant affidavits in support, my averment under paragraph 6 of the affidavit of the summary suit that the Applicant paid me Ug shs 97,000,000 was made in error. The Applicant in fact paid to me Ugx 47,000,000 (Uganda Shillings Forty-Seven Million only) in several installments laid down as follows; Ug shs 7,000,000 paid to me, Ug shs 10,000,000 paid to my son Francis and Ug shs 30,000,000 paid to the surveyor. - x) That contrary to his allegations under paragraph 9 of the affidavit in support, the Applicant in fact took possession of all the land,

subdivided and sold plots which were curved out of my land that I sold to him, he also excavated the land and sold the marram dug from it.

- xi)That this Application does not disclose any triable issues to merit the grant of unconditional leave to appear and defend, it is merely aimed at frustrating recovery of my money which the applicant is well aware he owes me. - xii) That the Applicant has already admitted to owing me a sum of Ug shs 46,000,000 and judgment should be entered on admission for that sum and that in alternative, should this Honourable Court feel inclined to grant this Application for leave to appear and defend, such leave should be conditional and the Applicant should be ordered to deposit the sum of Ug shs 203,000,000 in court as security for due performance.

## *Representation;*

7. The Applicant was represented by Counsel Mugerwa Marcos of M/s Justus Kato Advocates & Solicitors whereas the Respondent was represented by Counsel Edward Sekamate of M/s Kiwuuwa & Co. Advocates.

# *Issues for determination;*

Whether the Applicant has by Affidavit disclosed a triable issue of fact or law to grant him unconditional leave to file a defence?

# *Resolution and determination of the issue;*

**Whether the Applicant has by Affidavit disclosed a triable issue of fact or law to grant him unconditional leave to file a defence?**

- 10. Section 98 of the Civil Procedure Act empowers Court to make such orders as may be necessary for the ends of justice. - 11. In the case of **Children of Africa Vs Sarick Construction Ltd HCMA**

**No. 134 Of 2016** Justice Mubiru highlighted the grounds for leave to defend a summary suit as follows; The Applicant should demonstrate to Court that there are Issues or questions of fact or law in dispute which ought to be tried. The Applicant must disclose the nature and grounds of his or her defence and the facts upon which it is founded and the defence so disclosed must be both bonafide and good in law. In the same case, Court went on to define a triable issue as one capable of being resolved through a legal trial, it was also defined as an issue that only

arises when material proposition of fact or law is affirmed by one party and denied by another.

- 12. In the case of **Maluku Inter Global Agency Ltd Vs Bank of Uganda (1985) HCB pg 65,** The Court emphasised that ''before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a triable issue of fact or law. When there is a reasonable ground of defence to the claim, the defendant 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 not enter upon the trial of the issues disclosed at this stage. - 13. The Applicant disputes the amount claimed in the application, the basis of the whole claim is an agreement for sale of land where both parties raise issues of breach on either side thus raising bonafide triable issues which merit full trial by this Honourable Court. - 14. Whereas the Applicant adduced evidence to the effect that he made further payments and the only outstanding balance is Ug shs 46,000,000 (Uganda Shillings Forty-Six million) the Respondent seeks to recover Ug shs. 203,000,000/= (Uganda Shillings Two Hundred Three Million Only).

- 15. In the premises, this court is convinced that this application raises triable issues of fact which definitely would require a hearing. - 16. Court therefore, grants the Applicant unconditional leave to defend HCCS No. 0629 of 2024. - 17. Costs of the application to be in the main cause.

# **I SO ORDER.**

# **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

# **17/10/2024**

# **Delivered electronically via Eccmis on the 18th day of October, 2024**