Nambasa & 4 Others v Nkoola (Miscellaneous Application 1412 of 2024) [2025] UGCommC 11 (13 January 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO.1412 OF 2024 (ARISING FROM CIVIL SUIT NO.0692 OF 2024)**

#### **1) CHRISTINE ELIZABETH NAMBASA**

**2) JAMES KALIBALA**

**3) EDWARD MASEMBE**

**4) REV. CANON ERIA LUZINDA**

15 **5) ESEZA NAKAMATTE ] APPLICANTS**

### **VERSUS**

**DANIEL NKOOLA KISAUZI ] RESPONDENT**

# **Before: Hon. Justice Ocaya Thomas O. R**

#### **RULING**

## **Introduction:**

- 25 This application was brought by way of a Notice of Motion under Order 36 Rule 3, Order 52 Rule 1 and 3 of the Civil Procedure Rules, SI 71-1 seeking the following orders: - (1) That the Applicants be granted unconditional leave to appear and defend Civil Suit No. 0692 of 2024. - (2) Costs of this application be provided in the cause. - 30

The Respondent/Plaintiff commenced Civil Suit No. 0692 of 2024 by way of summary procedure in this court against the Applicants/Defendants who are the executors of the estate of the late Eseza Mpagi for the recovery of UGX 175,000,000 arising from a land sale contract between the Respondent and he deceased and a payment memorandum of


5 understanding for the claimed amount herein plus interest; entered into by the Applicants and the Respondent to refund the money.

This Application is supported by the affidavit of Mr. James Kalibala the 2nd Applicant whose grounds briefly state –

- 10 1. That the Applicants are not indebted to the Respondent to the sum claimed in the summary suit as he completely failed to present any documents to support his claim against the late Eseza Mpagi which was a condition in the Memorandum of Understanding attached to the Plaint in the summary suit. - 2. That the Applicants have a good and plausible defense to the suit (A copy of the 15 Drafted Written Statement of Defense is Annexed as Annexure A) - 3. That there are triable issues as to whether the applicants are in any way indebted to the Respondent given that the actual amount owed to the Respondent is not known since there is no evidence on the court record that the deceased entered into a sale agreement with the Respondent or any evidence of payments made to the deceased. - 20 4. That it is in the interest of justice and equity that the application for leave to appear and defend is allowed so that the suit is heard and determined on its merits and to avoid a multiplicity of suits.

## **Representation and Submissions:**

25 The Applicants were represented by the law firm of NOMREK Law Consultants & Advocates while the Respondent was represented by law firm M/S Maldes Advocates. The Applicants filed a Written Submission in court whereas the Respondent did not file his submissions but did file an affidavit in reply which is on Court record and shall be considered.

#### **Evidence:**

The Applicants led evidence by way of an affidavit deponed by the 2nd Applicant Mr. James Kalibala in support of the Notice of Motion and an Affidavit in rejoinder. The Respondent equally led evidence by way of an Affidavit in reply deponed by himself.

#### 5 **Decision**

The gist of the Applicants case in the affidavit is that the Applicants are not indebted to the Respondent to the tune of UGX 175,000,000/= as claimed in the summary suit No. 0692 of 2024 by the Respondent and that the Respondent has not provided any evidence of the genesis of the debt as in terms of the contract entered into between the Respondent and the

10 deceased Eseza Mpagi whose Estate the Applicants are administrator of.

Further that they have plausible defense to the claim of the liquidate amount of UGX 175,000,000/= as claimed in the summary suit and attached a draft copy of the Written Statement of Defense in annexure A of the affidavit in support.

The Respondent in the affidavit in reply contested the Applicants' claim as being full of falsehoods and intended to mislead the Court and further that the Applicants have no defense to the summary suit to warrant the grant of the leave to appear and enter a defense.

- 20 The Respondent raised some points of law on the propriety of the affidavit in support deponed by Mr. James Kalibala and the time of filing the Application in support wherein he pointed that: - - 1) That the Application is filed out of time as prescribed by the Civil Procedure Rules. - 2) That the Affidavit in support to the Application deponed by Mr. James Kalibala offends 25 the rules of Civil Procedure as it was deponed for and on behalf of the rest of the Applicants yet the deponent did not show the authority he obtained to depone for and on behalf of the rest of the Applicants.

The foregoing, as raised by the Respondent in his affidavit in reply are preliminary points of 30 law and that a Court ought to ascertain and entertain the assertion of the points raised which in themselves has the potential to dispose of the matter. See *Mukisa Biscuit Manufacturing Ltd V West End Distributors Ltd (1969) E. A 697* and *Quick Enterprises Ltd V Kenya Airways Corporation, High Court (Kisumu) Civil Case No. 22 of 1999*.

5 A preliminary objection must originate from the pleadings filed by the parties and must be based on pure points of law with no facts to ascertain and affidavits in this application are the pleadings.

The court shall ascertain the Points of the law raised as follows:

# *Filing out of time*

This being an application for leave to enter and defend in a summary suit/special endorsed plaint under Order 36 Rule, this procedure does not confer an automatic right to defend the suit for it is believed that the Defendant does not have a defense to the claim.

Under Order 36 Rule 3, a defendant to a summary suit who is served with the summons, ought to file an application for leave to appear and defend within the timelines indicated in the summons. The timeline is 10 days from the date of receipt of the summons.

20 The Applicants stated that the Respondents were served with the specially endorsed plaint summons on the 2nd July 2024 and filed their applications after the lapse of ten days which is contrary to the directions of Order 36 Rule 3.

The 2nd Applicant filed an affidavit in rejoinder wherein paragraph 4, he contends that the 25 Application was filed within the 10 days required by the statute. Court upon perusal of the documents filed in this Application and the filings in the main suit and computation find that, the Applicant's Application for leave to appear and defend was filed on the 15th of July 2024.

It is trite law that statutory timelines set are creatures of the statute and cannot be dealt with 30 at a whim. See Hon. Justice Christopher Madrama (as he was) in *Stop and See (U) Ltd V Tropical Africa Bank Ltd Miscellaneous Application No. 333 of 2010.*

Per the Court's computation of days, the statutory 10 days' period for filing an application lapsed on Friday, the 12th July 2024 which would make the application for leave to appear 35 and defend the summary suit late by 3 days from the date it was supposed to be filed.

5 It is trite law that time prescriptions in the statutes have to be followed to the latter and this is a limitation of action underlined by the phrase "*once statute-barred, always statutebarred*".

In the present case, whereas Order 51 r 6 provides:

- 10 *"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application* - 15 *shall be borne by the parties making the application, unless the court shall otherwise order."*

The filing for leave to appear and defend out of time without any prior application for an extension of time makes such an application a candidate for an *in-limine* ruling. Court further notes that even when the point was raised by the Respondent, the Applicants made no effort

20 to explain away the circumstances leading to the late filing and or move court seeking an extension of time. The Applicants just contended that the matter was filed within time. Whereas not as I have shown.

Therefore, this Preliminary Point of law raised by the Respondent is upheld and succeeds.

For completeness and having made the above finding on filing out of time in disregard to Order 36 Rule 3, I shall resolve the other issues for determination before the Court for in this Application and they are obiter.

30 *Swearing affidavit on behalf of the other Applicants without authorization.*

The Respondent argued that the 2nd Applicant, James Kalibala swore the Affidavit in support for and on behalf of the other Applicants without getting authorization from the other Applicants. The 2nd Applicantin his Affidavit in support contends that the affidavit in support was sworn on his behalf and not of the rest of the Applicants based on the knowledge he has

Page **5** of **10**

35 of the matter which knowledge is also well within that of the other Applicants.


- 5 The courts have severally held that an Affidavit is defective by reason of being sworn on behalf of another without showing that the deponent had the authority of the other. See *Taremwa Kamishana Tomas V Attorney General H. C. M. A No. 38 of 2012* and *Vincent Kafeero and 11 Others V Attorney General H. C. M. A No. 48 of 2012.* - 10 Under Order 3 Rule 1 of the Civil Procedure Rules which provides that:- Any application to or appearance or act in any Court required or authorized by the law to be made or done by a party in such a court may except where otherwise expressly provided by any law for the time being in force, to be made or done by the party in person, or by his or her recognized agents or by an advocate duly appointed to act on his or her - 15 behalf; except that any such appearance shall if the court so directs, be made by the party in person.

Order 3 Rule 5(2) provides that: -

The appointment of an Agent under sub-rule (1) of this Rule may be special or general, and shall be made by an instrument in writing signed by the principal, and the instrument,

20 or, if the appointment is general, a certified copy of it, shall be filed in court.

In this instant, the 2nd Applicant did not state that he is swearing the affidavit in support on and on behalf of the other Applicants however, the Respondent's objection is construed by the fact that the Application has 5 individuals listed as Applicants and only one of them 25 deponed an affidavit which understandably can be implied that he is deponing for and on behalf of the other Applicants.

However, given the origin of this suit being a claim for money under a specially endorsed plaint against the estate of a deceased, then it is the executors to be claimed against as it is in

30 Succession law; and the powers of the executors in the course of administrating the estate is exercised in unison in the case of more than one executor.

In the principle of exercising powers in unison, the affidavit in support of the suit against the estate ought to be deponed by all the executors of the estate or with the authorization of the

35 others when it is one of them deponing.

5 Ordinarily, the affidavit in reply would be struck out for being defective however, in my view, the Court would have exercised its discretion under Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act which empowers this Court with the authority to issue any remedy, known or new in the interest of Justice. See *Kagumaho Musana V Rama and 3 Other HCMA 933 of 2019* and *Tullow Uganda Limited and Another V Jackson Wabyona*

10 *and Others HCMA 443 of 2017.*

In my view, the affidavit in support would have been, in the interest of Justice allowed so that the Court could determine the actual matter of whether the applicants' have a defense to the Respondent's claim against the estate.

## *Whether the Applicants have a plausible defense to the Respondent's claim.*

The rationale for the summary procedure has been summarized in the decision of **Post Bank (U) Ltd v Abdul Ssozi SCCA 8/2015** where the Supreme Court held that: -

Order 36 was enacted to facilitate the expeditious disposal of cases involving debts and 20 Contracts of a commercial nature to prevent defendants from presenting frivolous or vexatious defenses in order to unreasonably prolong litigation. Apart from assisting the courts in disposing of cases expeditiously, Order 36 also helps the economy by removing unnecessary obstructions in financial or commercial dealings. See also *Zola and Another V Ralli Brothers Ltd and Another [1969] EA 691.*

This instant application is brought for unconditional leave to appear and defend the main suit and Order 36 Rule 4 provides that: -

An application by a defendant served with a summons in Form 4 of Appendix A for leave to appear and defend the suit shall be supported by an affidavit, which shall state whether the

30 defense alleged goes to the whole or part only, and if so, to what part of the Plaintiff's claim.

It follows that if the defendant shows that he has a defense or that there is a matter to try, the summary procedure is untenable. In *Kotecha v. Mohammed [2002] 1 EA 112*, the threshold for grant of leave to appear and defend was laid out:

- 5 Therefore, English authorities on that rule are of persuasive authority and provide a useful guide. Under the English Rule, the Defendant is granted leave to appear and defend if he is able to show that he has a good defense on the merit(s); 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 - 10 reasonable grounds of a bona fide defense. See *Saw v Hakim 5 TLR 72; Ray v Barker 4 Ex DI 279."* See also *Churanjilal & Co. v. A. H. Adam (1950) 17 EACA, 92, Hasmani v. Banque du Congo Belge (1938) 5 EACA 89 at 89, Pamela Anyoti v Root Capital Inc HCMA 844 of 2023*. - 15 However, it is not enough for the Defendant to simply deny indebtedness as that does not constitute a sufficient plausible defense. See *Order 6 Rule 8* and *Ecobank Uganda Limited v Kalson's Agrovet Concern Ltd & Anor HCCS 573 of 2016.*

Therefore, an Application for leave to appear and defend must show that there is a triable 20 issue, whether this is a contestation caused by their defense to the claim or some other issue of fact or law affecting the matter.

In this instant Application, the Applicants attached the draft of their intended defense in annexure A of the affidavit in support in paragraph 4 the Applicants stated that: -

- 25 That in the meeting held on Monday, the 6th day of June 2022, a meeting between the lineal beneficiaries of the late Festo Musoke and the plaintiff together with his wife was held at the premises of NOMREK IN' Consultants & Advocates. During this meeting, it was made clear that although a Memorandum of Understanding had been entered into between the parties, the defendants (now Applicants) had no power to do so and that the land comprised in - 30 Kyadondo Block 249 Plots 64 and 88 at Bunga which is the genesis of this matter of did not form part of the estate of the late Esther Mpagi.

That it was further explained that the late Esther Mpagi could not transact on the land without the consent of other beneficiaries of the estate of the late Festo Musoke.

- 5 That the defendant's dispute is that the amount of money the plaintiff claims in the suit is not a liquidated sum capable of being recovered under a summary suit. The defendants further contend that there is no evidence of how the plaintiff computed the amount to the tune of UGX 175,000,000 as the defendants had already made a payment of UGX 5,000,000/=. - 10

Further, the defendants contend that the payments made were done erroneously since they later learned that they were under no obligation to pay any money since they had no legal authority to transact or deal in the estate property of the late Esther Mpagi.

- 15 That the Plaintiff failed to adduce evidence to support any of his claims in the summary suit. That no documentary evidence was adduced except for a payment receipt of UGX. 60,000,000/=. No sale agreement is on the court record and thus there is no way of ascertaining the terms of the agreement between the plaintiff and the deceased. - 20 Given the foregoing contentions raised in the Applicants draft defense, it is in view that it is necessary to try the issue of the ownership of the land in question here and ascertain the actual owners as well the authority the deceased, Eseza Mpagi had to sell the said land to the Respondent as the Applicants admitted to there being evidence of payment of UGX 60,000,000/= by the Respondent to the deceased. - 25

# *Security:*

**Order 36 Rule 8** of the CPR provides thus.

Leave to appear and defend the suit may be given unconditionally, or subject to such terms as to the payment of monies into court, giving security, or time or mode of trial or

30 otherwise, as the court may think fit.

Some of the situations where this provision can be invoked are where the defense has, in its presentation at this stage, been somewhat doubtful or less persuasive or barely met the legal threshold. See *Joseph Muyinza Bunoli v William Tumusiime HCMA 820/2023,*

35 *Pamela Anyoti v Root Capital Inc HCMA 844/2023*


- 5 As noted above, the Applicant's defense is doubtful and not entirely persuasive but raises a few triable issues that require adjudication. I accordingly find that this is a proper case for the grant of conditional leave to appear and defend as such, the applicants shall pay 20% of the claimed amount of UGX 175,000,000/=. - 10 Owing to the above and without prejudice, I find that, whereas parts of the Applicant's intended defense are prima facie unsatisfactory. The draft defense raised, would have been considered triable issues that would warrant determination before the court for which conditional leave would have been granted but for the Applicant's filing of their application for leave out of time. - 15

## **Conclusion**

In the premises, the Applicant's application fails and I make the following order:

- a) The Applicants filed their application for leave to appear and defend out of the prescribed 10-day period under Order 36 Rule 3. - 20 b) This Application is dismissed with costs to be paid to the Respondent. - c) Judgment is hereby entered for the Respondent in HCCS 692 of 2024 for the sums claimed therein and costs of the suit.

I so order.

Delivered electronically this\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2025 and uploaded on ECCMIS. 13th January


30 **Ocaya Thomas O. R Judge, 13th January 2025.**