Nalubega Joyce Ssentongo and Others v Mukasa Herbert Malinda and Another (Miscellaneous Application No. 595 of 2024) [2024] UGCommC 385 (13 December 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 595 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 272 OF 2024)**

**1. NALUBEGA JOYCE SSENTONGO**

## **2. SSENTONGO BENON**

**3. MUWOMYA TIMOTHY SSENTONGO ::::::::::::::::::::: APPLICANTS**

*(Administrators of the estate of the late Ssentongo Benon)*

#### **VERSUS**

## **1. MUKASA HERBERT MALINDA**

## **2. MADIA BUKENYA MUKASA ::::::::::::::::::::::::::::::: RESPONDENTS**

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

#### **RULING**

#### Introduction

This application was brought by way of Notice of Motion under **Order 36**

- 25 **rules 3** and **4** and Order **52 rules 1** and **3 of the Civil Procedure Rules SI 71-1,** for orders that: - 1. The Applicants be granted unconditional leave to appear and defend *Civil Suit No. 272 of 2024.*

2. Costs of this application be provided for.

#### Background

35 The background of this application is contained in the affidavit in support deponed by **Mr. Ssentongo Benon**, the 2nd Applicant herein, but briefly summarized below:

- 5 1. That the suit does not disclose a cause of action against them as Administrators of the estate, as the entire estate was distributed to all the beneficiaries of the estate of the late Ssentongo Benon. - 2. That the Respondents indeed purchased land comprised in Block 10 130 Plots 6 and 7 at Funve Islands in Kalangala from his father, the late Ssentongo Benon for a total consideration of UGX 300,000,000/=, took the land and had it registered in their names and, have no further claim against the estate in respect thereof. - 15 3. That before purchasing and paying for the land, the Respondents carried out due diligence and were satisfied that the land belonged to his late father, the seller. - 20 4. That it is not true that Plot 7 Funve is part of Lukalu Central Forest as alleged in paragraph 3.6 of Mr. Mukasa Herbert's affidavit in support of the plaint. - 25 5. That the Respondents have not demonstrated that the National Forestry Authority (NFA) has threatened to evict them, the land titles are in the process of being cancelled or that their interest in the land is under threat. - 30 6. That the said land is still registered in the Respondents' names and until the land title is successfully challenged or cancelled, the Respondents remain the registered proprietors of the said land. - 7. That the suit cannot be fairly determined without hearing from NFA 35 and the District Land Board of Kalangala which issued the lease to the late Ssentongo Benon. - 8. That the proper Court with geographical jurisdiction is Masaka High Court since this matter involves land situated in Kalangala District which falls under that Court.

In reply to the application, the 1st Respondent **Mr. Mukasa Herbert Malinda**, deponed an affidavit opposing the application that:

- 1. The suit discloses a cause of action against the Applicants 10 notwithstanding the purported distribution, for the following reasons: - i. The Applicants acknowledge that a total consideration of UGX 300,000,000/= was paid to their late father, to whose estate 15 they were appointed Administrators. Two of the Administrators, including the deponent of the affidavit in support, witnessed the agreement and even received some funds. - 20 ii. One of the transfer forms, of the property was signed by all the Applicants as Administrators of the estate. - iii. The Applicants participated in various meetings seeking a 25 remedy for the Respondents following the NFA revelations as to the status of the property. - 2. Distribution does not prejudice the right of any creditor or claimant to follow the assets, or any part of them, in the hands of the persons 30 who have received them. - 3. The suit for refund flows from the breach of clause 5 of the agreement for the sale of land being NFA's claim to the property. - 4. This is a commercial dispute for a refund arising from an agreement drawn in Kampala, as per the receipts since the payments were made in Kampala and both parties to the agreement are residents in Kampala within the jurisdiction of this Court.

- 5 5. In light of NFA's claims, the Applicants cannot deny that there was a breach of the agreement and therefore the refund is due from them. - 6. The Applicants do not have any triable issues that merit consideration by this Court.

# Representation

The Applicants were represented by **M/s KRK Advocates** while the Respondents were represented by **M/s Etica Advocates.**

- 15 Issues for Determination - 1. Whether the application raises sufficient grounds to warrant the grant of leave to appear and defend *Civil Suit No. 272 of 2024?* - 2. What remedies are available to the parties? - 20

Both parties were directed to file their written submissions which they did and the same have been considered by this Court.

Issue No. 1: Whether the application raises sufficient grounds to warrant 25 the grant of leave to appear and defend *Civil Suit No. 272 of 2024?*

# Applicants' submissions

Counsel submitted that under **Order 36 rule 4 of the Civil Procedure Rules**, an application for leave to appear and defend a suit may be granted

30 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 claimed which requires taking into an account to determine or any other circumstances showing reasonable grounds of a bonafide defence.

Counsel also quoted the case of *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda [1985] HCB 65*.

- 5 Counsel further submitted that in the instant case, the Applicants filed this application for leave to appear and defend the Respondents' claim against them for a refund of UGX 170,000,000/= that they paid to the late Ssentongo Benon for the purchase of land comprised in FRV MSK283 Folio 21 Block 130 Plot 7 at Funve Island, Kyamuswa, Kalangala District. - 10 That the Respondents allege that after transferring the suit land into their names, they received a notice from NFA that the land formed part of the Lukalu Central Forest Reserve and further claimed that the late Ssentongo Benon failed to pass good and unencumbered title for the 170 acres. - 15 Counsel contended that the application raises several triable issues, which cannot be resolved at this stage and without hearing evidence from the Applicants. That the averments under paragraph 7 of the affidavit in support raise a question as to whether the said land forms part of the 20 alleged forest reserve as stated by the Respondents, and that this cannot be completed without the Respondents leading evidence as against the documents presented by the Applicants showing that the land does not form part of the said forest reserve. - 25 That as per paragraph 2 of the affidavit in support of the application, the Applicants have since exercised their administrator role over the estate of the late Ssentongo Benon and have since distributed the estate as per the copy of the inventory filed on 20th December, 2021. That this averment raises another question of law as to whether the main suit can be 30 sustained against the Applicants who have since completed their administration roles of the deceased's estate and the estate from which the Respondents seek to recover, has since been distributed and is no more. Furthermore, that paragraph 9 of the affidavit in support shows that the suit land is registered in the Respondents' names who purchased it after

- 5 carrying out due diligence and the Respondents never demonstrated the alleged eviction threats by NFA. That another serious question of law raised is whether the suit can be concluded without allowing the Applicants to cause the appearance of Kalangala District Land Board which leased the land to the deceased Ssentongo Benon. That another - 10 question of law is the jurisdiction of the subject matter being in Kalangala hence the suit ought to be handled by the Masaka High Court.

In conclusion, Counsel submitted that the above present bonafide triable issues of law and fact demonstrating and disclosing plausible grounds of

15 defence to the Respondents' claim. That therefore this a proper case for granting unconditional leave to appear and defend the suit.

# Respondents' submissions

20 In reply to the Applicants' submissions, Counsel for the Respondents submitted that it is trite law that for an Applicant to be granted leave to appear and defend, he/she must show the existence of a bonafide triable issue of fact or law.

Counsel then submitted that in this case, the Applicants have failed to 25 show a genuine issue that warrants a full trial. That the Respondents have established that the certificate of title for the 170 acres was invalidated due to its status as part of a protected forest reserve and is to be cancelled. That the Applicants, as the Administrators to the suit land, have not raised sufficient defence to challenge this claim except that the estate property 30 was distributed to the beneficiaries. It is the Respondents' submission that the Applicants are liable as Administrators of the estate of the late Ssentongo Benon and have never been discharged from their duties. Counsel referred to the case of *Anecho Haruna Musa Vs Twalib Noah & 2 Others HCCS No.09 of 2008*. - 5 That the Applicants' conduct, reluctance to address the Respondents' claim and their assertion that the estate has been fully distributed without providing proper documentation like filing final accounts verified by an affidavit undermine the credibility of their defence and demonstrate that they remain Administrators, as outlined in the authorities above and - 10 neither do they deny being Administrators of the late Ssentongo Benon's estate. That hence no bonafide issue, that should prevent a decree from being entered in favour of the Respondents, has been presented by the Applicants.

## Analysis and Determination

- 15 **Order 36 rule 3(1) of the Civil Procedure Rules**, stipulates that a Defendant served with summons, issued upon the filing of a specially endorsed plaint and 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. - 20

For leave to appear and defend a summary suit to be granted, an Applicant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. (See: *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda (supra).*

As defined in the case of *Jamil Ssenyonjo Vs Jonathan Bunjo, H. C. Civil Suit No. 180 of 2012,* a triable issue only arises when a material proposition of law or fact is affirmed by one party and denied by the other. Therefore, it is capable of being resolved through a legal trial, which is a 30 matter that is subject or liable to judicial examination in Court.

A defence raised by the Applicant should not be averred in a manner that appears to be needlessly bald, vague or sketchy. A triable issue must be

- 5 differentiated from mere denial. Therefore, the defence raised must not be a sham intended to delay the Plaintiff from recovery of his/her money. 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 or to 10 determine whether or not there is a balance of probabilities in favour of - one party or the other.

Further, in the case of *Kotecha Vs Adam Mohammed [2002] 1 EA 112,* it was held that where a suit is brought under summary procedure on a

15 specially endorsed plaint, the Defendant is granted leave to appear 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 20 reasonable grounds of a bona fide defence.

Furthermore, in the case of *Geoffrey Gatete & Another Vs William Kyobe Supreme Court Civil Appeal No. 7 of 2005*, the Court noted that 25 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 the trial of issues disclosed at this stage.*"

30 In the instant case, the Respondents vide *Civil Suit No. 272 of 2024* under a summary plaint instituted a claim against the Applicants for recovery of UGX 170,000,000/= (Uganda Shillings One Hundred Seventy Million Only) being the purchase price that they paid to the late Ssentongo Benon for the purchase of 170 acres of land comprised in FRV MSK283

5 Folio 21 Block 130 Plot 7 Funve Island, Kyamuswa, Kalangala, together with costs of the suit.

The suit was premised on the background that on 6th March, 2018, the late Ssentongo Benon executed an agreement with the Respondents for the sale of the above-described land. That the Respondents paid the full 10 purchase price and subsequently, transferred the property into their names on 13th August, 2018. That on 24th May, 2019, the Plaintiffs received a notice from NFA notifying them that the land comprised in the above property is part and parcel of the protected area of Lukalu Central Forest Reserve (CFR) which was gazetted as a central forest reserve. That 15 NFA further advised that Lukalu CFR has never been de-gazetted and that the exploitation, surveying, leasing, allocation of plots, alienation and issuance of certificates of land titles in the central forest reserve including the Respondents' certificate of title was illegal as it offended the Constitution and other laws.

- 20 According to the Respondents, the late Ssentongo Benon was in fundamental breach of the agreement when he failed to pass good and unencumbered title in the suit land resulting in total failure of consideration; hence the instant claim for a refund of UGX 170,000,000/= being the purchase price in respect of the 170 acres by the estate of the 25 deceased. That the family of the deceased was informed about the above before obtaining the letters of administration but they ignored the same, - hence the suit in which the Applicants now seek leave to appear and defend contending that as per annexure **"A"** to the affidavit in support, they distributed the whole estate to the beneficiaries and filed an inventory 30 to that effect.

- 5 On the other hand, the Applicants contended that Plot 7 Funve is not part of Lukalu Central Forest reserve as alleged and that the Respondents are still the registered proprietors of the suit land and have not presented any evidence that the titles are being challenged. - 10 The principle espoused in the authorities discussed above and as laid out in the case of *Twentsche Overseas Trading Co. Ltd Vs Bombay Garage [1958] EA 741*, summary procedure is resorted to in clear and straightforward cases, where the demand is liquidated and there are no 15 issues for determination by Court except for the grant of the claim.

As analyzed above, the facts and the evidence adduced in the attachments by both parties disclose issues that need to be proved. This application raises several triable issues starting with whether the Applicants are still

- 20 the Administrators, whether the Respondents were bonafide purchasers and whether at the time of the purchase, the suit land was gazzeted as a forest reserve. Also, the Applicants have raised an issue regarding the jurisdiction of this Court to handle this matter. In my considered view, these issues require further investigation by Court in a full trial for 25 effective resolution of the same. In the circumstances, the Applicants have raised triable issues of law and fact and they also have a defence to the suit hence placing the plaint outside the ambit of **Order 36 of the Civil Procedure Rules**. - 30

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

The East African Court of Appeal in the case of *Churanjila & Co. Vs A. H Adam (1) [1950]17 EACA 92*, held that a Defendant who has a stateable 35 and arguable defence must be allowed to state it and argue it before the

5 Court. That all the Defendant has to show is that there is a definite triable issue of fact or law.

In the premises, having found that the application has raised triable issues of law and fact, it merits its grant. As such, the Applicants are entitled to 10 unconditional leave to appear and defend the suit and accordingly the

- application is granted with the following orders: - 1. The Applicants are hereby granted unconditional leave to appear and - 15 - defend *High Court Civil Suit No. 272 of 2024***.** - 2. The Applicants are ordered to file their Written Statement of Defence within fourteen (14) days from the date of this Ruling. - 3. Costs of the application shall be in the cause. - 20 It is so ordered.

Dated, signed and delivered electronically via ECCMIS this **13th** day of **December**, **2024.**

Patience T. E. Rubagumya **JUDGE**

13/12/2024

30