Mande v Nkumba University (Civil Appeal 69 of 2020) [2024] UGHCCD 67 (8 April 2024)

#### THE REPUPLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# [CIVIL DIVISION]

## CIVIL APPEAL NO. 69 OF 2020

[Arising from Chief Magistrates Court of Entebbe MA No. 23 of 2020 and Civil Suit No. 25 of 2020]

MANDE ALFRED =============================== APPELLANT

#### VERSUS

NKUMBA UNIVERSITY ========================= RESPONDENT

# **BEFORE; HON. JUSTICE EMMANUEL BAGUMA**

# **JUDGMENT**

#### **Background**

This appeal arises from the ruling and orders of Her Worship Phionah Birungi a Magistrate Grade one at Entebe Chief Magistrates court where the Respondent sued the Appellant by way of summary procedure for recovery of 13, 000,000/= being balance of purchase in a land transaction, general damages, interest and costs of the suit. The Appellant applied for leave to appear and defendant the suit but the same was dismissed on ground that it did not disclose triable issue to warrant grant of leave to defend.

The Appellant being dissatisfied with the ruling, judgment and orders of the trial appealed to this court on the following grounds; -

- *1. The learned trial Magistrate erred in law and fact in failing to find that the Appellant's application for leave to appear and defend the suit had raised triable issues justifying grant of the application by the court.* - *2. The learned trial Magistrate misdirected herself in law when she dismissed the Appellant's application for leave to appear and defend the suit and entered judgment and decree for the respondent without taking into consideration issues of illegality raised by the Appellant against the*

*Respondent involving dishonest/fraud, abuse of Court Process and bad faith.*

- *3. The learned trial Magistrate misdirected herself in law and fact in failing to take into consideration the fact that the contract sought to be enforced and executed against the Appellant by the Respondent by instituting Civil Suit No. 23 of 2020 is registered land comprised in Busiro LRV 1312 Folio 10 Block 422 Plot 9 at Bukandekande that is the same land that is subject of litigation between the Appellant and the Respondent in Civil Suit No. 289 of 2018 that is still pending in the High Court, Land Division.* - *4. The learned trial Magistrate misdirected herself when she failed to properly evaluate the evidence on record and as a result dismissed the Appellant's application for leave to appear and defend the suit and this was prejudicial to the Appellant.* - *5. The learned trial Magistrate erred in law and fact in awarding costs of the suit to the Respondent when there was no basis for her to do so.*

#### **Legal Representation.**

Counsel Henry Rwaganika represented the Appellant while counsel Kabakubya Bashir represented the Respondent.

At the hearing parties agreed to file written submissions and their details are on record

## **Duty of first Appellant Court**.

The duty of the first appellate court was stated in the case of **Kifamunte Henry Vs Uganda SC, (Cr) Appeal No. 10 of 2007,** where it was held that;

*''…the first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and makeup its own mind not disregarding the judgment appealed from but carefully weighing and considering it…''*

This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

Counsel for the appellant indicated that he will argue all the five grounds together by framing one issue for court's determination to wit; -

*Whether there was a triable issue or whether this was a proper case for judgment to be entered for the Respondent in the main suit.*

## **Submission by counsel for the Appellant.**

*Whether there was a triable issue or whether this was a proper case for judgment to be entered for the Respondent in the main suit.*

Counsel submitted that the agreement relied upon by the Respondent in Civil Suit No. 25 of 2020 was tainted with fraud and illegalities and as such does not fall within the provisions of order 36 rule 2(a) of the CPR. He referred to the case of **Jimmy Kisule VS Steel Rolling Mills [1995] KARL 646** where it was held that; -

# *"it is trite law that summary procedure should only be resorted to in clear and straight forward cases where the demand is liquidated and where there are no points for court to try".*

Counsel submitted that the considerations for grant of leave to appear and defend were stated in the case of **Maluku Inter grobal Trade Agency Ltd Vs Bank of Uganda [1985] HCB 65** where it was held that; -

# *"before leave to appear and defendant is granted the defendant must show by affidavit or otherwise that there are bona fide triable issues of fact or law"*

Counsel contended that there were bona fide triable issues as the contract was tainted with fraud, illegality and bad faith which should have been a basis for court to grant leave to the Appellant to appear and defend. The same constitute a triable issue within the meaning of order 36 (2) (a) of the CPR.

Counsel prayed that the appeal be allowed, judgment and orders of the trial Magistrate be set aside and the appellant granted leave to appear and defend CS No. 25 of 2020.

#### **Submissions by counsel for the Respondent**

# *Whether there was a triable issue or whether this was a proper case for judgment to be entered for the Respondent in the main suit.*

Counsel submitted that order 36 rule 2 of the CPR caters for claims where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising upon a contract.

Counsel defined a liquidated demand according to **Black's law dictionary, 5th Edition, pg 839** ; -

# *"A figure readily computed, based on terms of an agreement or is fixed by operation of law. It is in a nature of a debt, a specific sum of money due and payable under or by virtue of a contract which is either already ascertained or capable of being ascertained as a mere matter of arithmetic".*

Counsel submitted that CS No. 25 of 2020 was for recovery of Ugx. Shs. 13,000,000/= pursuant to a contract executed between the Appellant and the Respondent on the 20th October 2019 which contract was breached by the Appellant herein and thus the suit.

Counsel referred to the case of **Africa One Logistics Ltd Vs Kazi Food Logistics (U) Ltd MA No. 964 of 2019** where court held that; -

*"the purpose of the law is that under order 36 rule 4 of the CPR, unconditional leave to appear and defend a suit will be granted where the applicant shows that he or she has a good defence on the merits; or that a difficult point of law is involved; or that there is a dispute which ought to be tried or a real dispute as to the amount".*

Counsel defined a triable issue as per the case of **Visare Uganda Limited Vs Muwema & Co. Advocates and ors MA No. 826 of 2023** to mean; -

# *"An issue capable of being resolved through a legal trial i.e. a matter is subject or liable to judicial examination in court".*

Counsel contented that the Plaintiff /Respondent's claim for recovery of a liquidated sum pursuant to an agreement attached to the plaint executed with the Appellant/Defendant. The terms and conditions upon which the said agreement was entered are clear and not contested and there is co contention regarding how much had been paid or what the actual balance was.

Counsel submitted that the Appellant admitted the same terms of the agreement and stated that there was a balance which when he went to pay the same past the 6 months the officials of the Respondent rejected it. The said agreement does not relate to CS No. 289 of 2018 pending in Land Division and the agreement does not contain a close to consent in the said suit.

Counsel argued that the agreement the subject of this suit is independent from the suit at Land Division. He contended there was no arguable defence demonstrated by the Appellant and prayed that this appeal be dismissed.

In rejoinder, counsel reiterated his submissions in chief.

## **Analysis of court.**

*Whether there was a triable issue or whether this was a proper case for judgment to be entered for the Respondent in the main suit.*

In the case of **Kotecha Vs. Mohammed [2002] 1 EA 112** the court of appeal held that;-

*"the defendant is granted leave to appear and defend if he is able to show that he has a good defence on the merit or that a difficult point of law is involved; or a dispute as to the facts which ought to be tried: or a real dispute as to the amount claimed which requires taking an account to determine: or any other circumstances showing reasonable grounds of a bona fide defence".*

In the instant case, the appellant argues that the agreement which is the subjected of this appeal was tainted with fraud and illegalities and as such does not fall within the provisions of order 36 rule 2(a) of the CPR. He added that the agreement concerns land comprised in Block 422 Plot 9 LRV 1312 Folio 10 at Bukandekande which landa is also a subject of a dispute in land Division between the Appellant and the Respondent, he argued that upon purchase, parties were supposed to sign a consent judgment to settle the suit and land division and not a sale agreement. On the contrary the Respondent submitted that the agreement was entered freely and its terms are very clear. That the Appellant himself complied with the same to some extent until he breached the agreement. That the sale agreement is independent of the dispute in land division.

From the evidence on record, it is not in dispute that both the Appellant and the Respondent have a pending suit vide CS 289 of 2018 pending at Land Division. it is also not disputed that the suit concerns the same land comprised in Block 422 Plot 9 LRV 1312 Folio 10 at Bukandekande which is also the basis of the sale agreement dated 20th October 2019, the genesis of Civil Suit No. 25 of 2020, where the Respondent filed a summery suit to recover the balance of 13,000,000/= upon which the Appellant applied for leave to appear and defend but the same was denied.

The Appellant in his application for leave to appear and defendant claimed that he discovered that he had signed a sale agreement instead a consent judgment settling the dispute at Land Division.

From the facts and circumstances of this case, there is a triable issue as to whether the sale agreement dated 20th October 2019 was for buying land or intended to settle the land dispute in land division.

It is this court's finding that the trial Magistrate was wrong in holding that the applicant did not demonstrated triable issues/plausible defence. The appellant/applicant did not have to show a good defence with a likelihood of success at this stage but what the applicant had to demonstrate is that there was an issue for court to investigate.

The fact that the sale agreement was for purchase of land which is the subject of a land dispute at land division between the same parties and it is the same sale agreement where the Respondent wants to recover the balance of 13,000,000/=, this raises a triable issue which warrants grant of leave to appear and defend.

The trial Magistrate erred in holding that there were no triable issues/ plausible defence advanced by the Appellant to warrant grant of leave to appear and defend.

## **Conclusion**.

In the final result, this appeal succeeds with the following orders; -

- 1. This appeal is hereby allowed - 2. The ruling and orders of the trial Magistrate in MA No. 23 of 2020 and CS No. 25 of 2020 are hereby set aside. - 3. The appellant is granted unconditional leave to appear and defendant CS No. 25 of 2020.

- 4. The Appellant is given 15 days from the date of this Judgment to file a Written Statement of defence in CS No. 25 of 2020. - 5. Let Civil Suit NO. 25 of 2020 be allocated to a different magistrate to hear it on merit. - 6. The Appellant is awarded the costs of this appeal.

Dated, signed, sealed and delivered by email on this **8 th** day of **April 2024**

Emmanuel Baguma

Judge.