Moha Construction Limited v Kabuye Gideon Kirumira (Misc. Application No. 179 of 2025) [2025] UGCommC 145 (30 April 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 179 OF 2025 (ARISING FROM CIVIL SUIT NO. 23 OF 2025)** 10 **MOHA CONSTRUCTION LIMITED :::::::::::::::::::::::::::::::::::: APPLICANT VERSUS KABUYE GIDEON KIRUMIRA :::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

### **RULING**

# 15 Introduction

This application was brought by way of Notice of Motion under **Order 36 rules 3 and 4** and **Order 52 rules 1 and 3 of the Civil Procedure Rules, SI 71-1,** seeking orders that:

1. The Applicant be granted unconditional leave to appear and defend

- 20 *Civil Suit No. 23 of 2025.* - 2. Costs of the application be provided for.

# Background

The background of the application is contained in the affidavit in support and supplementary affidavit in support deponed by **Mr. Kitaka** 25 **Muhammad**, the Applicant's Managing Director, and is summarized below:

1. That around 8th February, 2019, he owned land comprised in Busiro Block 1344 Plot 349 land at Nalumunyi in Wakiso District.

- 5 2. That around 4th September, 2019, he sold and transferred the land to the Respondent's name at a consideration of UGX 150,000,000/= (Uganda Shillings One Hundred Fifty Million Only). - 3. That there were some squatters on some parts of the land whom he found on the land and passed them on to the Respondent. - 4. In August, 2020, the Respondent approached him requesting him to repurchase the land claiming that he had failed to settle with the squatters and therefore, could not use the land as he wanted. - 5. That he personally did not have money, so he contacted his fellow 15 directors in the Applicant Company who purchased the said land from the Respondent at a consideration of UGX 300,000,000/= (Uganda Shillings Three Hundred Million Only) which money was paid in cash at the execution of the Sale Agreement.

20 6. That for and on behalf of the Applicant, the Respondent handed to him the original duplicate certificate of title, signed transfer forms, the national identity card, passport photos and all necessary requirements for the transfer of the said land into the name of the Applicant.

- 25 7. That he has never signed any agreement in the sum of UGX 750,000,000/= (Uganda Shillings Seven Hundred Fifty Million Only) on behalf of the Applicant in regard to the land comprised in Busiro Block 1344 Plot 349 land at Nalumunyi. - 8. That the agreement attached to the affidavit in support of the 30 summary suit is a forgery and is written in English, a language whose command is unknown to him. - 9. That the consideration for the suit land was paid in full and no balance remained unpaid as alleged by the Respondent.

- 5 In reply, the Respondent **Mr. Kabuye Gideon Kirumira** opposed the application contending that: - 1. The application was brought outside the allowed time frame and ought to be dismissed. - 2. The deponent alleges the existence of an agreement executed 10 between the parties, but deprives the Court the benefit of seeing it by attaching it, yet confidently wishing the Court to acknowledge and rule that the same exists. - 3. The Applicant through its directors especially the deponent, duped him into handing over signed transfer forms and the certificate of 15 title on a gentleman's understanding that the transfer will only be made upon completion of the agreed purchase price which understanding was violated. - 4. The Applicant made mere assertions with no evidence to prove the same. - 20 **Mr. Kitaka Muhammad**, deponed an affidavit in rejoinder reiterating his earlier averments and added that: - 1. He filed this application on 4th February, 2025 after being served with the summons on 27th January, 2025, which was within the 10 stipulated days. - 25 2. The allegation by the Respondent that the Applicant duped him into handing over the certificate of title is a clear admission of an existence of a trial issue warranting the Applicant to be granted unconditional leave to appear and defence the main suit.

#### 5 Representation

The Applicant was represented by **M/s Mudiobole & Co. Advocates,** while the Respondent was represented by **M/s Galisonga & Co. Advocates**.

The parties were directed to file written submissions, which they did, and the Court has considered the same.

### 10 Issues for Determination

- 1. Whether the Applicant has raised sufficient grounds to warrant the grant of unconditional leave to appear and defend *Civil Suit No. 23 of 2025*? - 15 2. What remedies are available to the parties?

In his affidavit in reply and submissions, the Respondent, raised two preliminary points of law to the effect that the application was filed out of time and that the affidavit in support and rejoinder contravene **Section 1 of the Oaths Act, Cap.19** hence should be struck out with costs.

- 20 As provided under **Order 6 rule 28 of the Civil Procedure Rules**, a point of law that is pleaded when so raised is capable of disposing of the suit, may by consent of the parties or by order of the Court on the application of either party, be set down for hearing and disposed of at any time before the hearing. - 25 As to whether to dispose of a preliminary point first before hearing the merits of the matter, the Supreme Court, in the case of *Uganda Telecom Ltd Vs ZTE Corporation, SCCA No. 3 of 2017*, held that a trial Court has the discretion to dispose of a preliminary point either at or after the hearing. However, the exercise of discretion depends on the circumstances

5 of each case. It is therefore trite that where a preliminary objection raised is capable of disposing of the matter in issue, it is judicious to determine the objection before embarking on the merits of the case.

Guided by the above authorities, I shall resolve the preliminary points raised.

10 (i) Whether this application was filed out of time?

Learned Counsel for the Respondent did not submit on the said preliminary point of law. I therefore infer that the same was abandoned. Nonetheless, the affidavit of service deponed by Mr. Beteege Juma in *Civil Suit No. 23 of 2025*, adduced as annexure "**RR A**" attached to the 15 affidavit in rejoinder, shows that the Applicant was served with the summons on 27th January, 2025. As per the Court record, this application was filed on 4th February, 2025 which was within the stipulated 10 days as provided under **Order 36 rule 3** and **Form 4 of Appendix A of the Civil Procedure Rules**.

20 (ii) Whether the affidavit in support and rejoinder should be struck off the record?

#### Respondent's submissions

Learned Counsel for the Respondent submitted that the affidavit in support and rejoinder contravene **Section 1 and Form B of the Oaths** 25 **Act**. He argued that the obligation under the above provision is personal to the Commissioner for Oaths and cannot be delegated as portrayed in the case of *Oloo Paul Vs Dr. Lokii John Baptist & Another Election Petition No. 06 of 2021*. However, that in the instant case, the affidavits

5 have no certification/jurat and or statement by the Commissioner for Oaths to the effect.

#### Analysis and Determination

**Section 1 of the Oaths Act, Cap. 21** provides for oaths to be taken. To that effect, **Form B** of the First Schedule to the Act, provides for the form 10 of the jurat where a third person has read the affidavit to an illiterate deponent and it reads as follows:

#### "*Form of Jurat*

*(Where a third person has read the affidavit to the deponent)*

*Sworn at \_\_\_\_\_ in the district of \_\_\_\_\_\_\_ this \_\_\_\_\_ day of \_\_\_\_\_, before* 15 *me, and I certify that this affidavit was read over in my presence to the deponent he (or she) being blind or illiterate and the nature and contents of the exhibits referred to in the affidavit explained to him (or her) in the \_\_\_\_\_\_\_ language. The deponent appeared perfectly to understand the same and made his (or her) mark (or signature) thereto* 20 *in my presence*.

Commissioner for Oaths"

In the instant case, the deponent of the affidavit in support and rejoinder Mr. Kitaka Muhammad presented himself as an illiterate. Before 25 appending his signature, the contents were translated to him by a one Nassali Maria Mirembe and a certificate of translation was made to that effect and attached to his affidavits, which I hereby reproduce;

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

#### 5 *"Certificate of Translation*

*I NASSALI MARIA MIREMBE of C/o M/S Mudiobole & Co. Advocates being conversant in both English and Luganda having been instructed by Kitaka Muhammad the Applicant herein, do hereby certify that I have interpreted the contents of* 10 *this Application to the deponent in the Luganda language understood by him and he appeared to have fully understood its contents before appending his signature on the Affidavit in support of the Application.*

*…………………………………..*

#### 15 *NASSALI MARIA MIREMBE"*

*Affirmed at Kampala This……. day of…..2025 By the dais Kitaka Muhammad*

*…………………..* 20 *Affirmant*

*Before me*

*…………………….. Commissioner for Oaths*

- 25 From the foregoing, it is shown that the jurat in the affidavits in issue deviated from the form provided under Section 1 and Form B of the First Schedule to the Oaths Act which requires not only the interpreter but the Commissioner for Oaths to also confirm that the interpreter properly interpreted the contents of the affidavit and the oath administered to him. - 30 In the case of *Namboowa Rashiida Vs Bavekuno Mafumu Godfrey Kyeswa and Another, Election Petition Appeal No. 69 of 2016*, the Court of Appeal was faced with a similar issue whereby the trial Judge had

- 5 expunged 83 affidavits from the Court record for non-compliance with the then **Illiterates Protection Act, Cap. 78** and the **Oaths Act, Cap. 19**. In its determination, the Court of Appeal, quoted **Sir Charles Newbold, P** in the case of *Nanjibhai Prabhudas & Co. Ltd Vs Standard Bank Ltd [1968] EA 670*, wherein he stated that: - 10 "*The Courts should not treat any incorrect act as a nullity, with the consequence that everything founded thereon is itself a nullity, unless the incorrect act is of a fundamental nature. Matters of procedure are not normally of a fundamental nature*." - Further, the Court relied on its decision in the case of *Hon. Lillian* 15 *Nakatte Segujja and Another Vs Nabukenya Brenda, Election Petition Appeals No. 17 and 21 of 2016*, wherein it stated that:

"*We are therefore satisfied that the certification of the jurat by the interpreter, instead of the Commissioner for Oaths as provided for in Form B of the First schedule to the Act, should be considered an* 20 *insubstantial deviation; which never seriously flouted the intention of the Legislature. We believe that where a Commissioner for Oaths administers an Oath in an affidavit to a deponent after a third party instead of the Commissioner for Oaths, has effectively interpreted the contents of the affidavit to the deponent to his or* 25 *her understanding, the affidavit should not be regarded as irredeemably defective as to be rejected. Parliament could not have intended such an insubstantial deviation from the statutory provision should suffer such a consequence.*" 5 In its holding, the Court of Appeal found that the Learned trial Judge erred in law and fact when he expunged the said affidavits for non-compliance with the provision in issue.

Having considered that the provision in issue was enacted to protect an illiterate person from endorsing an affidavit without understanding its 10 contents, which could be detrimental and guided by the above authorities, I have noted that the Applicant herein understood the contents of the affidavit as interpreted to him and the affidavits in issue are not prejudicial to any party.

Accordingly, I find that the affidavit in support and rejoinder are valid. 15 Therefore, this preliminary point is overruled.

Issue: Whether the Applicant has raised sufficient grounds to warrant the grant of unconditional leave to appear and defend *Civil Suit No. 23 of 2025*?

## Applicants' submissions

- 20 Learned Counsel for the Applicant relied on **Order 36 rule 3 of the Civil Procedure Rules** and the cases of *Sterling Travel & Tours Services Ltd & Another Vs Millenium Travel & Tour Services Ltd Misc. Application No.116 of 2013*, *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda [1985] HCB 65* and *Omonyi William Watmon Vs Habib Bar &* - 25 *Lounge Ltd Misc. Application No.730 of 2020*, for the proposition that in such an application, the Applicant must prove that there is a bonafide triable issue of fact or law. That in the case of *Jamil Ssenyonjo Vs Jonathan Bunjo HCCS No. 180 of 2012*, a triable issue was defined as one that only arises when a material proposition of law or fact is affirmed 30 by one party and denied by the other.

- 5 Relating to this application, Learned Counsel for the Applicant contended that as per paragraphs 10-12 of the affidavit in support, the deponent never signed any agreement in the sum of UGX 750,000,000/= on behalf of the Applicant in regard to land comprised in Busiro Block 1344 Plot 349 land at Nalumunyi and that the agreement attached to the summary suit - 10 is a forgery, which is a triable issue, whose particulars are shown in the affidavit in support. That the deponent added that he is illiterate yet the agreement was written in English.

Learned Counsel also contended that the Respondent has not denied the above facts and that in light of the above, this application should be

15 granted.

## Respondent's submissions

In reply, Learned Counsel for the Respondent also referred to the cases of *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda (supra), Children of Africa Vs Sarick Construction Ltd HCMA No. 134 of 2016,*

- 20 *Bunjo Vs KCB Bank (Uganda) Ltd HCMA No.174 of 2014, Corporate Insurance Co. Ltd Vs Nyali Beach Hotel Ltd [1995-1998] 1 EA 7* and *Imaging the World Africa (ITWA) Limited and Another Vs Nagawa Juliet Luggya HCMA No.111 of 2023,* for the principles regarding such applications. - 25 Learned Counsel then submitted that the application does not raise any triable issues of law or fact since in its affidavit in support, the Applicant only raised general denials of liability.

Further, that the allegations that the agreement was obtained by fraud or forgery was not corroborated by any evidence. That no defence was

5 attached to show the triable issues. To that effect, Learned Counsel for the Respondent prayed that the application be dismissed.

## Analysis and Determination

I have considered the pleadings, evidence submissions, and the authorities therein.

10 **Order 36 rule 3(1) of the Civil Procedure Rules,** stipulates that a Defendant served with summons, issued upon the filing of an endorsed plaint and an affidavit under **rule 2** of this Order endorsed, "summary procedure", shall not appear and defend the suit except upon applying for and obtaining leave from Court. For leave to appear and defend to be 15 granted, an Applicant must show by affidavit or otherwise that there is a bonafide triable issue of fact or law. (See: *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda (supra).*

A triable issue is one capable of being resolved through a legal trial, that is, a matter that is subject or liable to judicial examination in Court. It has 20 also been defined as an issue that only arises when a material proposition of law or fact is affirmed by one party and denied by the other. (See: *Jamil Ssenyonjo Vs Jonathan Bunjo (supra).*

A triable issue must be differentiated from a mere denial. Therefore, the defence raised must not be a sham intended to delay the Plaintiff from 25 recovery of his/her money. A defence raised by the Applicant should not be averred in a manner that appears to be needlessly bald, vague or sketchy. If the defence is based upon facts, in the sense that material facts alleged by the Plaintiff in the plaint are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues 30 or to determine whether or not there is a balance of probabilities in favour

5 of one party or the other. In essence, where an Applicant raises a good defence, the Plaintiff is barred from obtaining summary judgment.

In the case of *Bhaker Kotecha Vs Adam Mohammed [2002] 1 EA 112* it was held that where a suit is brought under summary procedure on a specially endorsed plaint, the Defendant is granted leave to appear and 10 defend if he/she can show that he/she has a good defence on 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 bonafide defence.

15 Furthermore, in the case of *Geoffrey Gatete & Another Vs William Kyobe SCCA No. 7 of 2005*, the Court noted that in such a case:

*"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* 20 *the trial of issues disclosed at this stage."*

Turning to the present case, the Respondent vide *Civil Suit No. 23 of 2025* sued the Applicant for recovery of UGX 450,000,000/= being the outstanding principal amount accruing from breach of an agreement between him and the Applicant, and costs of the suit.

25 The claim was premised on the facts that the Respondent and the Applicant entered into an agreement to sale and purchase the suit land wherein the Applicant offered to buy land from the Respondent. That the Applicant was obligated to pay UGX 750,000,000/= as the purchase price for land comprised in Block 1344 Plot 349, land at Nalumunyi in two 30 instalments of UGX 300,000,000/= and UGX 450,000,000/=, respectively.

- 5 However, that the Applicant only paid UGX 300,000,000/= and that to date the Applicant has failed to pay the 2nd instalment. That as per the agreement, the Respondent gave the Applicant the certificate of title and the transfer forms to enable the buyer effect the transfer. - In its pleadings, the Applicant disputed indebtedness to the Respondent 10 contending that the agreement attached to the affidavit in support of the summary plaint is a forgery as the agreement signed by the deponent on behalf of the Applicant and the Respondent stipulated that the consideration was only UGX 300,000,000/=, which was paid at the time of execution of the land sale agreement. The Applicant also contended that 15 the land sale agreement being relied upon in the main suit was written in - English yet the Applicant's representative is an illiterate.

As portrayed in the affidavit in support of the application, the Applicant disputes indebtedness to the Respondent, contending that the deponent never signed any agreement of UGX 750,000,000/= on behalf of the 20 Applicant. That the land was purchased at UGX 300,000,000/=, which

- they paid, hence the agreement presented by the Respondent is a forgery. It is now trite that allegations of forgery cannot be resolved by way of affidavit evidence. - In addition, I have examined annexure **"A"** attached to the affidavit in 25 support of the summary plaint showing that the Applicant agreed to purchase the suit land from the Respondent at UGX 750,000,000/=. However, the agreement does not show who signed on behalf of the Applicant.

As espoused in the authorities discussed above and as laid out in the case 30 of *Twentsche Overseas Trading Co. Ltd Vs Bombay Garage [1958] EA*

- 5 *741*, summary procedure is resorted to in clear and straightforward cases where the demand is liquidated and there are no issues for determination by the Court except for the grant of the claim. - However, in the instant case, the Applicant disputes the agreement in 10 issue, contending that it is a forgery. As evidenced by the affidavit in support of the application and the rejoinder thereto, the deponent, who purportedly acted on behalf of the other directors, is presented as an illiterate. He insists that he never entered into any agreement of UGX 750,000,000/=. The above raise questions of whether the Applicant is - 15 indebted to the Respondent and whether the agreement in issue is genuine. The said questions raise issues of law and fact that require the Court investigation, hence placing the plaint outside the ambit of **Order 36 of the Civil Procedure Rules**.

## Issue No.2: What remedies are available to the parties?

- 20 According to the case of *Churanjila & Co. Vs A. H Adam (1) [1950] 17 EACA 92*, the East African Court of Appeal held that a Defendant who has a stateable and arguable defence must be allowed to state and argue it before the Court and that all the Defendant has to show is that there is a definite triable issue of fact or law. - 25 In the premises, I find that the Applicant has raised triable issues of law and fact that merit the grant of this application. Therefore, the Applicant is entitled to unconditional leave to appear and defend *Civil Suit No. 23 of 2025.*

Accordingly, this application is granted with the following orders:

30 1. The Applicant is hereby granted unconditional leave to appear and defend *Civil Suit No. 23 of 2025.*

- 5 2. The Applicant shall file and serve its Written Statement of Defence within fifteen (15) days from the date of this Ruling. - 3. The Respondent shall file his reply to the Written Statement of Defence within fifteen (15) days from the date of service of the Written Statement of Defence. - 10 4. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered electronically via ECCMIS this **30th** day of **April, 2025**.

15 Patience T. E. Rubagumya **JUDGE** 30/04/2025