Magembe David v Ssemaganda Wilber (Miscellaneous Application No. 1052 of 2024) [2025] UGHCCD 59 (15 May 2025)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

# MISCELLANEOUS APPLICATION NO. 1052 OF 2024 (ARISING OUT OF HIGH COURT CIVIL SUIT NO. 0403 OF 2024)

MAGEMBE DAVID ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

### VERSUS

SSEMAGANDA WILBER :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

#### BEFORE: HON. JUSTICE SIMON PETER M. KINOBE

#### RULING

#### BACKGROUND

The Applicant brought this application under Sections 98 of the Civil Procedure Act Cap. 282 and Order 36 Rule 4 and Order 52 Rules 1 & 3 of the Civil Procedure Rules S. I 71-1, for orders that;

- 1. Unconditional leave be granted to the applicant to appear and defend Civil Suit No. 0403 of 2024. - 2. The costs of the application be provided for.

15 May 2025

The facts leading up to this application are as follows;

- a) The parties entered into two separate land purchase agreements, one for I acre of land comprised in Kyadondo block 156, plot 252 for a price of UGX 75,000,000 (Seventy-Five million Uganda Shillings Only) for which the applicant made a deposit of UGX 45,000,000 (Forty-Five Million Uganda Shillings Only). - b) The second one was for land measuring 23 decimals at a price of UGX 20,000,000 (Twenty Million Uganda shillings only) for which the applicant made a deposit of UGX 10,000,000 (Ten Million Uganda Million Shillings only). - c) The respondent failed to hand over vacant possession, deliver the titles and also started to avoid the applicant. - d) The matter was then reported to the police upon which it was established that the respondent sold to the applicant, land for which he was not the owner. - e) The respondent then made several efforts to recover the down payment of UGX 65,000,000 (Sixty-Five Million Shillings only) made on the land in vain. - f) Aggrieved by the applicant's actions, the respondent filed Summary Suit Civil Suit No. 403 of 2024 against the applicant for recovery of a liquidated sum of UGX 65,000,000 (Sixty-Five Million Shillings Only).

In response to the above, the Applicant has filed this application for unconditional leave to appear and defend the suit.

The grounds of the application are specifically set out in the affidavit of the applicant but briefly are that;

a) The applicant does not owe the respondent the sum claimed.

15 May 2025

- b) That the main suit was premature, misconceived and based on an illegality. - c) That the applicant has a Bonafide defense with triable issues of fact and law. - d) That the sum claimed is not a liquidated sum capable of being recovered under summary procedure and that it is in the interest of justice that the application is granted.

In opposition to the application, the respondent filed an affidavit in reply, and it states briefly that;

- a) The applicant sold land to him which he had never owned. - b) That the applicant intended to defraud him by receiving money for land which did not belong to him. - c) That he declined to pay the balance on the land because he had established, after conducting due diligence, that the applicant did not own the land. - d) That the applicant has no defense to the main suit. - e) That the application is an abuse of court process and intended to deny him recovery of his money. - f) That his money became recoverable the day he discovered that the applicant had no right to sell the land.

#### REPRESENTATION

The applicant was represented by Mr. Bwire Denis while the respondent was unrepresented but present in court.

#### ISSUE FOR DETERMINATION

15 May 2025

Whether the applicant has a *bonafide* triable issue of fact or law to justify the grant of leave to appear and defend Civil Suit No. 0403 of 2024.

#### DETERMINATION

I have had the opportunity to read the application and the affidavit in support of the application, the one in reply and in rejoinder together with the submissions of both parties as noted above.

It is agreed by both parties that they entered into two land sale agreements, for land comprised in Block 156 Plot 252 Kyadondo. The respondent paid UGX 65,000,000/= (Uganda Shillings sixty-five million only) as part payment of the consideration.

That the respondent filed summary suit HCCS No. 0403 of 2024, to recover the part payment he had paid to the applicant.

The applicant seeks leave of court to appear and defend High Court Civil Suit No. 0403 of 2024 (summary suit) on the grounds that there are triable issues and that he has a viable defense to the suit.

He contends that;-

- 1. The respondent failed/declined to pay the balance of money causing the applicant undue inconvenience. - 2. The consideration paid was for purposes of processing the certificate of title. That the process of processing the titles was not time bound. - 3. There was no time limit within which the certificate of title would be delivered to the respondent.

15 May 2025

- 4. The respondent was aware that the subject property was in the names of a different third party. - 5. Therefore, High Court Civil Suit No. 0403 of 2024 is premature and illegal. - 6. The triable issue that must be resolved is who of the parties is in breach of the contract. This must be answered before this Honorable Court can delve into the question of transferring the certificate of title into the respondent's name. - 7. there is no ascertained liquidated amount, which is a requirement in a summary suit under 0rder 36 of the Civil Procedure Rules SI 71-1

The applicant relies on a variety of authorities.

The respondent on the other hand contends that; -

- 1. He made a part payment of the consideration, and the balance was to be paid upon provision of the certificate of title. - 2. To date, he has not received the certificate of title for the land he purchased. - 3. The applicant has been avoiding him and not taking his calls - 4. After doing due diligence, he discovered that the land for which the applicant had received money did not belong to him. - 5. He therefore filed High Court Civil Suit No. 0403 of 2024 to recover the money he had paid to the applicant, - 6. The applicant has no defense to the suit and that there are no triable issues. - 7. There is an ascertained liquidated amount of money had and received by the applicant of UGX 65,000,000/= (Uganda Shillings sixty-five million only), - 8. The respondent only seeks to recover money received by the applicant falsely pretending to sell land to the respondent that did not belong to the applicant.

15 May 2025

The basis of an application for leave to appear and defend was laid out in the case of *Imaging The Worlds Africa and Anor Vs Juliet Nagawa HC-MA No-336 of 2023*, where it was stated,

*"The foundation for applications for leave to appear and defend is premised under order 36 rules 3 and 4 of the civil Procedure Rules which provides that upon the filing of an endorsed plaint and consequent service on the defendant, the defendant shall not appear and defend the suit except upon applying for and obtaining leave from court.*

*Order 36 rule 4 of the Civil Procedure Rules further provides that the application for leave to appear and defend the suit shall be supported by affidavit which shall state whether the defense alleged goes to the whole or to part only and if so to what part of the plaintiff's claim.*

*The above provisions are premised on the fact that the plaintiff has failed to establish a prima facie case for summary judgment and thus the summary judgment should not be granted or entered. The defendant (applicant) is required to satisfy the court that "there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial"*

*If the applicant raises a triable issue or if there is a good reason why there should be a trial, he will be given unconditional leave to defend. If he is not able to show that there is a triable issue or cannot satisfy the court why the case should be tried, then the plaintiff will be granted a summary judgment.*

*The applicant does not need to satisfy the court that he is more likely to succeed on the issue or question. He/she merely has to satisfy the court that there is a question or issue which can only be properly determined at a proper trial. It is not for the court hearing the application to determine or investigate the merits of the issues raised by*

15 May 2025

*the applicant. The court should only ascertain whether an issue has been raised which should be tried. The duty of the court is to carefully examine the facts in order to ascertain whether there is truly a triable issue."*

In *Corporate Insurance Co. Ltd vs Nyali Beach Hotel Ltd [1995-1998] E. A 7 (cited in Imaging The Worlds Africa And Anor Vs Juliet Nagawa HC-MA No-336 of 2023* with approval) the Court of Appeal of Kenya ruled that, *"leave to appear and defend will not be given merely because there are several allegations of fact or law made in the defendant's affidavit. The allegations are investigated in order to decide whether leave should be given. As a result of the investigation, even if a single defense is identified, or found to be bonafide, unconditional leave should be granted to the defendant".*

## In the case of *Maluku Interglobal Trade Agency vs Bank of Uganda [1985] HCB 65, at 66* it was held that;

*"Before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a bonafide triable issue of fact or law. When there is a reasonable ground of defense to the claim, the defendant is not entitled to summary judgment. The defendant is not bound to show a good defense 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 issues disclosed at this stage."*

I agree with the position in the above authorities and find no reason to depart from them.

15 May 2025

I find that there is a liquidated amount of UGX 65,000,000/= (Uganda Shillings sixtyfive million only), as money had and received by the applicant a fact admitted by both parties.

From a reading of the affidavits, attendant to the application I also find that there are two land sale agreements for land to the respondent. I note that this land did not belong to the applicant. The applicant was neither in possession nor was he the registered proprietor of the land he purported to sale. An interaction with the applicant indeed revealed that the applicant did not own the land he allegedly sold to the respondent. While the applicant is not bound to show a good defense on the merits, he should satisfy the court that there is an issue or question in dispute which ought to be tried. I find that there is no issue or question for trial and all the assertions by the applicant are properly answered in this application.

Additionally, I also note that this court cannot turn a blind eye to an illegality once the same is brought to its attention. (See; *Makula International Ltd v His Eminence Cardinal Nsubuga & Anor Supreme Court Civil Appeal No. 4 of 1981*). Selling what does not belong to you would amount to an illegality as you cannot pass title.

There is no reasonable doubt that the respondent herein is entitled to judgment, and it is inexpedient to allow the applicant herein to defend the suit as this would not only be a waste of courts time but is intended to delay proceedings and improperly deprive the respondent of judgment. This is a typical case of abuse of court process to defeat, delay or even deny the respondent expedient judgment.

I find that the applicant has no defense to High Court Civil Suit No. 0403 of 2024 and that the applicant has failed to demonstrate any *bonafide* triable issue of fact or law

15 May 2025

to justify the grant of leave to appear and defend High Court Civil Suit No. 0403 of

#### 2024.

I accordingly dismiss this application with costs to the respondent.

I, so order.

…………………………………………………

SIMON PETER M. KINOBE

JUDGE

DATE: 15 May 2025