Musisi v Kawalya & 2 Others (Miscellaneous Application 155 of 2023) [2024] UGHC 273 (16 April 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO

# **MISCELLANEOUS APPLICATION NO. 155 OF 2023**

(Arising from CIVIL SUIT No. 74 of 2023)

MUSISI AMOS BATANDA ========== APPLICANT /DEFENDANT

#### **VERSUS**

1. JAMES MUJABI KAWALYA

2. NAKIWEEWA SHARON

3. MARY KALULE ===============RESPONDENTS/PLAINTIFFS

(Suing through their lawful attorney LUVUMA FARUK **MUHAMED and**

**MUSINGUZI JOHN)**

#### BEFORE HON. LADY JUSTICE JACQUELINE MWONDHA

## **RULING**

This application for unconditional leave to appear and defend civil suit No.74 of 2023 was brought by Higenyi, Ngugo and Wadamba Advocates.

It was brought under Order 36, rules 3 and 4 of the Civil Procedure Rules, Section 98 of the Civil Procedure Act Cap 71 and Order 52 Rules 1 and 3 of Civil Procedure Rules S. I 71-1.

The application was brought seeking orders that:

1. The applicant be granted unconditional leave to appear and defend civil suit NO.74 of 2023 before this honorable court.

2. Costs of this application be provided for.

The grounds upon which this application is premised are contained in the affidavit of MUSISI AMOS BATANDA and they include;

a) That the applicant is not in breach of contract as claimed by the respondent in the suit.

b) That the applicant is not indebted to the respondents as claimed in the summary suit.

c) The Applicant intends to raise a counter claim for breach of contract against the respondents.

d) That the pleadings constituting the summary suit in civil suit NO. 74 of 2023 before this honorable court are incurably defective, barred in law and an abuse of court processes.

e) That there are triable issues of law and fact raised in this case.

f) That the applicant has a plausible defense to the entire claim in the suit.

g) That the respondents' claim against the applicant is baseless, Windy 2029 frivolous and vexatious and intended to waste court's time. 2 | Page

h) That it is just and equitable that the applicant be granted unconditional leave to appear and defend this suit.

Counsel for the applicants submitted that the applicant has the burden to show that there is a bonafide triable issue of law or fact. That where there is reasonable ground of defense to the claim, the plaintiff is not entitled to a summary judgement. That the defendant is not bound to show a good defense on the merits but should satisfy court that there is an issue or question in dispute which ought to be tried.

Counsel further submitted that the applicant adduced evidence that on $30<sup>th</sup>$ May 2022, the 1<sup>st</sup> and 2<sup>nd</sup> respondents signed a contract of sale of land with the applicant committing to pay a total sum of Ug. Shs.95,000,000 as the purchase price for the subject. That to date the $1^{st}$ and $2^{nd}$ respondent have only paid Ug. Shs. 60,000,000 and a balance of Ug. Shs. 35,000,000 has never been paid despite the contractual period of $2.5$ months having elapsed and this is breach of contract by the $1^{st}$ and $2^{nd}$ respondents.

That the applicant also adduced evidence in paragraph 9 of his affidavit in support of this application that on $3<sup>rd</sup>$ June 2022, the $3<sup>rd</sup>$ respondent signed a contract of sale of land with the applicant committing to pay total sum of Ug. Shs.35,000,000 as the purchase price for subject land. That to date the 3<sup>rd</sup> respondent has only paid Ug. Shs.15,000,000 and the balance of Ug. Shs.20,000,000 has never been paid despite the contractual period of 3 months for paying the

Wildow Sease

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balance having elapsed and this amounts to breach of contract by the $3<sup>rd</sup>$ respondent.

It was also the applicant's submission that he intends to raise a counter claim for breach of contract against the plaintiffs as evidenced by the draft written statement of defense attached to the applicant's affidavit and this raises a triable question of who is in breach of contract between the applicant and the respondent and the court ought to grant this application and allow the applicant to file a defense.

In response to the above, counsel for the respondents relied on the case of David Lugva Lutalo and Another v Admark Management Services Misc. Application No.7 of 2020 where it was noted that summary judgement should not be based on mere assertions of probable defense available to the defendant but rather he or she should take a step further and show court the evidence he or she intends to rely on to prove his on her defense.

Counsel further averred that the applicant has not set out any evidence of a triable issue as there is no evidence speaking to the breach of contract by the respondents as alleged by the applicant or evidence to show that the applicant has not breached the contract but instead the evidence of the applicant's breach is glairing, instead the respondent asserts breach. It was also counsel for the respondent's submission that the respondents could not have possession since attainment of the possession was conditioned to to luonal poor first making full payment of the contractual sum but he has adduced

no evidence to contradict the fact that upon demand of the said balance of Ug. Shs. 35,000,000 and Ug. Shs. 20,000,000 by the respondents on 19<sup>th</sup> August, 2023. The respondent wrote back to the applicant agreeing to effect payment of the said balance in each case at the applicant's time and place of convenience by $23<sup>rd</sup>$ August, 2023 but the applicant declined to heed to the same and at which point he was already nowhere to be seen and he therefore cannot assert that the respondent failed to pay after 2.5 months since it is him who declined to heed to payment of the balance.

Counsel for the respondent also contended that the applicant failed to account by evidence breach of Clause 4(a) and 5(a) of the $1^{st}$ , $2^{nd}$ and 3<sup>rd</sup> respondents' purchase agreement which both provide that the vendor warrants that there is no material fact that may adversely affect this sale and or their power to enter into this agreement. That the respondents have pleaded under paragraph 7(i) of the specially endorsed plaint that the land was found with third parties (Kibanja holder) who claim for the subject land. The applicant did not disclose this fact to the respondents in the same regard, therefore the applicant would also not have the power to enter this agreement since he is technically not the owner of the suit land this in breach thereof.

#### **ANALYSIS**

The law regarding summary suits is well settled under Order 36 of the Civil Procedure Rules S. I 71-1. I will reproduce the order in part 43/4010412024<br>43/4010412024 for emphasis.

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It specifically stipulates that all suits: (a) where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising

- $(i)$ upon a contract, expressed or implied (as, for instance, on a bill of exchange, hundi, promissory note or cheque, or other simple contract debt) - $(ii)$ on a bond or contract written for payment of a liquidated amount of money; - (iii) on a guaranty where the claim against the principal is in respect of a debt or liquidated amount only; - $(iv)$ on a trust; or - upon a debt to the Government for income tax; or $(b)$ being $(v)$ actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for nonpayment of rent, or against persons claiming under the tenant, may, at the option of the plaintiff, be instituted by presenting a plaint in the form prescribed endorsed "Summary Procedure Order XXXVI" and accompanied by an affidavit made by the plaintiff, or by any other person who can swear positively to the facts, verifying the cause of action, and the amount claimed, if any, and stating that in his or her belief there is no defense to the suit.

Order 36 of the Civil Procedure Rules is intended to enable a plaintiff with a liquidated claim to which there is no defense to obtain a quick and summary judgement without being kept from what is due him by tactics of the defendant. Adina Zola and Another v Ralli Brothers Limited and Standard Bank Limited Another Civil Appeal No.4 of 1969 EACA.

The law on leave to appear and defend is encapsulated in Order 36 rule 4 which stipulates that an application by a defendant for leave to appear and defend the suit shall be supported by an affidavit which shall state whether the defense alleged goes to the whole or to part only and if so what part of the plaintiff's claim and the court also may allow the defendant making the application to be examined on oath.

In Makula Interglobal Trade Agency v Bank of Uganda (1985) HCB **65** court stated that before leave to appear and defend is granted, the defendant must show by affidavit or otherwise that there is a bonafide issue of fact or law.

In Board of Governors of Nebbi Town S. S. S V Jaker Food Stores Limited Miscellaneous Civil Application No.0062 of 2016 it was held that under Order 36 rule 4 unconditional leave to appear and defend the suit will be granted where the applicant shows that he or she has a good defense on the merits or that a difficult point of law is involved or that there is a dispute as to the amount claimed which requires taking an account to determine or any other circumstances Bland's or showing reasonable grounds of a bonafide defense such as where

- a) The applicant demonstrates to the court that there are issues or questions of fact or law in dispute which ought to be tried. - b) The applicant shows a set of facts which leads to the inference that at the trial of the action he may be able to establish a defense to the plaintiff's claim in which case he ought not to be debarred of all power to defeat the demand upon him - c) Where court is in doubt whether the proposed defense is being made in good faith the court may order the defendant to deposit money in court before leave is granted. - d) Wherever there is a genuine defense either to fact or law the defendant is entitled to leave to appear and defend - e) The defendant may in answer to the plaintiff's claim rely upon a setoff or counterclaim

I have addressed by mind to the evidence and submissions of the applicants and respondents.

The land sale agreement between the applicant and James Mujabi Kwalya Kironde and Nawkiweewa Sharon indicates that the first installment of the purchase price for the land was made on 18<sup>th</sup> May 2022 and the last installment was to be paid with in a time span of two and a half months from that date on which the agreement was signed. The land sale agreement between the applicant and Kalule Gatrude indicates that the first installment of the purchase price was made on $2^{nd}$ June, 2022 and the last installment was to be paid within a period of 3 months from the date on which the agreement was signed.

The applicant alleged that the respective balances of the purchase price were never paid and the contractual period stipulated under the land sale agreements elapsed. The respondents on the other hand allege that all efforts to have the applicant receive the balance were frustrated by the applicant.

It is pertinent to ascertain who of the parties is actually in breach of the sale of land agreement which matter cannot be well resolved in a summary suit.

I have considered both the submissions from the Applicant and respondent and the evidence provided, I find that there is a triable issue raised in this application for unconditional leave to appear and defend and I accordingly allow it.

The applicant shall file his defense in respect of the of the respondents' claim within fifteen days from the date of this ruling.

Costs shall be in the cause.

# I SO ORDER

Huards.

**JACQUELINE MWONDHA**

JUDGE

Windbare

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