[1992] UGHC 34

Mr. Justice Egonda Ntendp

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. $167/90$

ABUBAKAR KATO KASULE ::::::::::::::::::: PLAINTIFF

VERSUS

TOMSON MUHWEZI :::::::::::::::::::::::::::: DEFENDANT

Before: The Hon. Mrs. Justice M. Kireju

## Ruling:

$\overline{1}$

This is an application brought by Notice of Motion under Or. 33 rr. 3 and 4 and Or. 48 rr 1, 2 and 3 of Civil Procedure Rules, seeking leave to appear and defend the suit. The application was presented by Mr. Owiny-Dollo of M/S Owiny-Dollo Tibai juka & Co. Advocates and was supported by the affidavit of the applicant/defendant Tomson Muhwezi dated 28/6/91.

The respondent/plaintiff was represented by Mr. Lubega Matovu of M/S Lubega - Matovu & Co. Advocates and there was an affidavit in reply affirmed by Abubakari Kato Kasule dated 21/8/91.

The brief background to this application is that the applicant in in Misc. Application No. 49/89 Tomson Muhwezi vs. Abubakari Kato Kasule and Safiya Babirye Kasule sought to nullify the termination by the respondents of the applicant's lease over the suit premises and cancellation of the re-entry made by the Registrar of Titles. This application was dismissed by his Lordship Justice Ntabgoba P. J. on $5/1/90$ , confirming that the re-entry by the respondent was The applicant appealed against the said ruling to the proper. Supreme Court on 19/4/91 was struck out as having been filed out of the prescribed time. The applicant then made an application for review of Justice Ntabgoba's ruling of $5/1/90$ but this was dismissed by the judge on $18/11/91$ . The applicant has filed an application for leave to appeal against that ruling of $18/11/91$ to the Supreme Court, this application has not been heard and is still pending in this court. In the meantime the plaintiffs/respondents have filed a suit under Or. 33 seeking an order directing the defendant to handover vacant possession of the suit premises to the plaintiff,

$...$ /2..

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arrears of rent for 12 years of the conclused rent, costs of the suit and monthly rent at she 400 000 = from the time of re-entry and respossession up to the time of surrender of the premises. This is the suit the applicant now seeks to defend. The plaint was filed on $9/3/90$ .

Mr. Owiny-Dollo's first ground on which this application is grounded is that the subject matter in the instant suit is the same subject matter in Misc. Appl. No. 49/89 an earlier $\checkmark$ suit which is not yet disposed of. He contended that this other suit is referred to in the affidavits of the applicant and the respondent. Counsel contended that although the court recognised the re-entry made by the plaintiffs as landlord, that there has not been actual re-entry and thats why the plaintiff was bringing has this suit. That the applicant., made an application to appeal against the decision of Principal Judge of 18/11/91, and the matter is still pending. Counsel argued that while that application is still pending the plaintiff/respondent has filed this suit seeking the eviction of the applicant. That if this case was allowed to proceed, y Supreme Court decision in Civil Suit No. 49/89 may become contradictory to the decision in this case. The Supreme Court decision would also determine this case. To allow this suit to go underfended would create judicial cunfusion which will not serve the ends of justice.

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Secondly counsel for the applicant submitted that the proposed defence in this suit is that the issue in this case is already adequately being handled by this court. Counsel contended that if the applicant is not allowed to defend this case whatever remedy he may get from the Supreme Court will be in vain. He concluded by saying that the points of : law raised should be tussled out at full hearing.

Mr. Lubega-Matovu went through the history of this case as narrated in the affidavit in reply and as already sammarised above. Counsel submitted that the issues of law relied on by the applicant to appear and defend are not bonafide as shown by the history of this case. Counsel contended that the fact

that there was an app Ixo :: for le?-.- - to appeal against the Principal Judge's ruling ^J ^s net t; . ^x ?cuclon. That the applicant was moi interested in continued ocGU^c.'tion of the premises. The ruling was made on 18/11/91 but up to now almost a year later he has never fixed the application for hearing.

On the issue as to why the respondcnt/plaintiff filed this suit, counsel submitted that there was a legal problem. The application under Misc. Appl. No. ^zⁱ-9/89 was an application for nullifying the re-entry and cancelling the plaintiff'^s re-entry in the land office and in that application there was no way the plaintiffs could ask for vacant possession of the suit premises. Counsel submitted that although there was book entry in the land office the applicant/defendant has refused to give physical re-entry hence this suit. That there was no contradiction between the two suits. On the issue of resjudicata counsel submitted that although the..parties were the same in both suits, the issues raised were different in each suit and therefore, the.doctorine of. resjudicata did not arise.

On the ground that if this suit went underfended it would prejudice the applicant/defendant's anticipated appeal to the Supreme Court, counsel submitted that the appeal did Jjot stand a chance of success as the application was dismissed on 3 different grounds each of which was sufficient to dispose of the application. Counsel submitted that there was no merit in the defendant's defence and was bringing this application to delay the course of justice and he prayed that the application be rejected and judgement and decree be entered in favour of the respondent/plaintiffs.

Mr. Owiny-Dollo in reply submitted that he agreed with counsel for the respondent that an application to appeal was not a bar to execution but contended that the matter before court was not a matter of execution and therefore the law of execution did not apply as this was a completely 'jii-.-w suit. Counsel \* submitted that there are only two ways of how re-entry can be made, one, by physical entry and another one through action in court .... A,

The land office only notes re -cry in tne register. Counsel **fwrCtx»jr argued** that the appeal of the defendant to the Supreme Court was based on the fact that there has never been a re-entry as claimed by the plaintiffs. Counsel argued that the issue in both suits was the same, namely whether the plaintiff was entitled to physical possession of the suit premises. Counsel contended that the fact that the ruling to be appealed from was dismissed on ³ different grounds was not important as the Supreme Court can overrule all of them.

Having narrated the submissions by both counsel and given them due consideration, together with all supporting affidavits in favour and against this application, my tast is to decide whether on evidence before court the defendant should be allowed to appear and defend this suit. In the case of Maluku Int ^c r^lo^b al Trade Agency Ltd, vs. Bank of Uganda 19^3 HCB 63 Justice 0doki as he then was set out some facts to be taken into account when considering application under Or.³³ r. ⁴ of C. P. H. The defendant is required to show by affidavit or otherwise that there is ^a bonafide triable issue of fact or law. The defendant/applicant is not bound at this stage to show a good defence on the merit but should satisfy the court tnat there is an issue or question i. in dispute which the court ought to try and the court should not enter upon the trial of the issue or issues disclosed. Where it appears to court that there is ^a reasonable ground of defence to the claim the plaintiff is not entitled to summary judgement• The court is also required to study the defence raised and ascertain whether it raises ^a real issue and not ^a sham one in the sense that if the facts alleged by the defence were ostablishet there would be a plausible defence. If the defendant has got a plausible defence, he will be allowed to defend unconditionally as was stated in court of Appeal case of Souza Fjguerido & Co^A Ltd. vs. Moorings Hotel Co. Ltd. /'i959/ ^B^a 423\*

Applying the above guideline to the present application, I am of the considered opinion that the defendant has presented triable issues on point of law. and considering the chequered history of this suit involving the same parties it would not be wise to allow this suit to proceed undefended. This is a now suit not just execution proceedings. Issues involved in thio case cannot be properly adjudicated upon without giving the defendant a chr.nce to be heard.

I accordingly grant the application as prayed.

The applicant/defendant is given ¹⁰ days from the date hereof within which to file his written statement of defence and let the case be set dosn for hearing on merit. Costs of this application will be in the cause. I so order.

M. KIREJU r

U D G E 13/10/92

13/10/92: 2.30 p.m.

Mr. Lubega - Matovu of Lubega - Hatovu & Co. Advocates hr the plaintiff.

**Mr. Owiny -** hollo for the Applicant/defondant absent.

Mr. Oburu - Court Clerk\*»

Mr. Owiny hollo appears in the course of delivering the\* ruling\* Ruling delivered before the above.

w *\i* -■ //v-M. KIhEJU ^v

J\_U D ^G E 13/10/92