Nile Bank v Nafeero (Civil Suit 601 of 1992) [1993] UGHC 31 (18 January 1993)

## the republic cf no rm\*?

## IN COURT CF UG ,ND\ VX.

## CIVIL SUIT NO. 601/92

NILE 3\NK PL ilNTIFFS

VRS.

MRS. AL'JX M\LCNGO NiFEERO DEFENDANT

BEFORE: THE HON. MR. JUSTICE . M. OKELLO

## RULING:

This application is by Notice of Motion brought under *OJJ* r. 48 R. 4 of the CPR. It seeks orders

- (a) thv.it the defendnnt/Applic-int be printed unconditional leave to j.ppe ir. and defend the suit against her. - ■(b) that the costs of this Application be provided for aid do /.bide the event of the main suit. The application is based on the following grounds:- - (i) on the grounds which are contained in the accompanying affidavit of Mrs. ilex Nilongo Kafeero. - (ii) That the loin but to her children Ruth Nantonro and William Kityo. was minted not to the defendant personally - infact not a lo-n but medical disbursement for the treatment of the s-iid children. (iii) That the loan was - (iv) that the defendant's Account with the Pliintiff was merely <sup>t</sup> used for convenience as Ruth Nanton^o '-s an omployoo/of the plaintiff.

In contrast to that affidavit, there is an affidavit in Reply deponed by Andrew Nsen<ra the Director of Credit with the Plaintiff Bank. affidavit which was deponed by The application was supported by the the ipplicant/Defendant Alex Nalonvo Kafecro on 12/10/92.

Tho application as pointed out earlier, seeks orders for unconditional leave The law under which the application Before I proceed to consider tho merits of this I observation whichZdeem a ppii ca ti on, I to appear and. defend the summary suit which was brought an-ainst her under <33 of the CPR. (SI 65-3). have an "•33 r. 48\*4 CPR". proper to make now <-1 this stage. is brought is cited as

The above is incorrect because t}3 of the CPR. has only 11 rulus. Rule 48 is not available under 033. I think it is incumbent upon every counsel to ensure that every document he filed is in order. In the instant case, I think the order and rules intended are 033 rr • <sup>4</sup> 048 r.l of the CPR. a nd 8,

I now t»>rn to consider the merits of the "pplicatinn. Tho Principle applicable. in deciding whether or not to rrant unconditional leu.ve to a defendant in summary suit to appear and defend is clear.. It is that the applicant has to show that there is a d?finite triable issuo either of fact or law.

Sir Graham Paul, Vice-President of the defunct Court of Appeal for Eastern \* frica s.-iid:- 1 n c--lu.r?<niil.il> <sup>a</sup> nd Co. Vs. i. B. Adam (1950) 17 rC.-i.92,

•' a defendant who has \ stateable and arguable defence must be driven it before the court. All the defendant h's to show is that there is a definite triable issue of fact or law. <sup>n</sup> the opportunity to state it and arcrue

hrs since been consistently followed by Courts in the Region. It was followed in Kirat ^inrh Sc Co. Vs. Pun <sup>j</sup> \_ Methjii\_Jk Sons (1932) 193-iCA 33; Kundanlala Restaurant Maluku Interylobal Trade Arency Ltd. in Nile Bark (U) Ltd. It is a ^ood law and I follow it. Th it principle vs • Devshi & Co. (1932). 193ACA 77; vs . Bank of \_Uranda\_ (^1983)\_ HCD 53 3nd vs. Bakund.a (U) Ltd. HOGS No. 600/92 Unreported.

I

I .1 I

**i**

In appiyin the snpportincr affidavit and the affidavit in reply t<sup>o</sup> see if there is any triable issue shown. the above principle to the facts of the inst nt case, I shall proceed to examine

*5*

From the applicants supporting affidavit, the applicant denied

- (1) That she is indebted to the Plaintiff at all and claim to rely on the doctrine of Estoppel (p.ira~: affidavit). This refutes the the Respondent's affidavit in reply on how the applicant became indebted. This is an oath against an oath and the court cannot decide one way or the other. Evidence must be adduced and the witnesses subjected tn cross examination to determine which of the two is tellin the truth on this issue. It is not my duty to who is tellinr 'the truth at this st^-re. ruph > of the oupportinr-. decide on explanation in paragraph 4-6 of - t?.) The applicant also asserted in hur affidavit that the money claimed loan but a medical disbursement advanced by the Plaintiff Bank to the applicant's children one of who w.^e an employee of the Plaintiff Bank, for the treatment of those children. uffidavit). This by the Plaintiff Bank (paragraph 8 of the .ffidavit in Reply). It is not disp"ted however that Ruth Nantonfso, children of the Applicant was an employee of the Plaintiff Bank. "he was stated to be Account "Executive. Whether that money was advanced to the applicant's children as medical disbursement as the Plaintiff Bank is an issue th.-t ci-n only be decided when evidence is adduced from both sides. The court can not decide one way In my view the above constitute definite triable or the other. issues. (paragraphs 4,5,6, and 7 of the applicant's *,* assertion 4 was denied was not a c-n oath and a denial on oath. one of the •\s it is, there is assertion a condition of service of one of the children employed with

..4..

Having found that the Applicant has by her affidavit shown that there are definite triable issues, the Plaintiff is not entitled to a decree. The applicant/Defendant must be given opportunity to present and armue her defence before court. For those reisons the application is allowed with cost which shall abide the result of the main suit. The defendant is to file her written statement of defence within ten days from the date of this Ruling.

G. M. CKELLO JUDGE.

$18/1/93$ .

$19/1/93:$

Court:

Mr. Butagira for the Respondent Mr. Muwaire for the Applicant Adele Interpreter.

Ruling delivered.

H. WCLAYO DEPUTY