[2025] UGCommC 97

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 2353 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 1223 OF 2024)**

## **ARMOUR TRADING COMPANY LIMITED::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

### **AFRICA GLOBAL LOGISTICS UGANDA LTD:::::::::::::::::::::::::::::::::RESPONDENT**

15 **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

#### **RULING**

The applicants brought this application by way of notice of motion under section 98 of the Civil Procedure Act and Order 36 Rule 2 and 3, and 52 rule 1,2 and 3of 20 the Civil Procedure Rules S. I. 7l-1. The applicants seek orders that they be granted unconditional leave to appear and defend *Civil Suit No. 1223 of 2024 Armour Trading Company Limited vs Africa Global Logistics Uganda Ltd*; and that costs for the application be provided for.

25 The background to this application is that the respondent filed *Civil Suit No. 1223 of 2024 Africa Global Logistics Uganda Ltd vs Armour Trading Company Limited* for recovery of a liquidated sum of USD 264,134 (United States Dollars Two Hundred and Sixty Four Thousand One Hundred and Thirty Four) that arose out of a contract for logistics services for goods that were imported by the 30 applicant/defendant. The respondent/plaintiff alleged that he delivered the applicant's/defendant's goods worth USD 279,134 and the applicant/defendant only paid up USD 15,000 and defaulted on clearing the balance of USD 264,134 despite numerous reminders; hence the civil suit to recover the same. The applicant/ defendant herein subsequently filed this application seeking to be 35 granted leave to appear and defend the said civil suit.

## 5 **Representation at the hearing**

The applicant was represented by Kyazze, Kankaka & Co. Advocates; while the respondent was represented by OSH Advocates. The parties were granted leave to file written submissions which are on Court record.

## 10 **Issue for determination**

The issue for determination is whether the applicants have disclosed a triable issue of fact or law thereby entitling them to a grant of leave to appear and defend *Civil Suit No. 1223 Of 2024*.

## 15 *Determination of court*

The submissions of the parties have been taken into consideration. The submissions will, however, not be reproduced here. This matter is decided as follows:

Applications for leave to appear and defend are premised on Order 36 rules 3 and 4 of the Civil Procedure Rules SI 71-1, as amended. Order 36 rule 3(1) of the Civil Procedure Rules provides that upon the filing of an endorsed plaint and service of the same on the defendant, the defendant shall not appear and defend the suit 25 except upon applying for and obtaining leave from the court. Further, Order 36 rule 4 of the Civil Procedure Rules provides that the application for leave to appear and defend the suit shall be supported by affidavit which shall state whether the defence alleged goes to the whole or to part only, and if so, to what part of the plaintiff's claim.

- 30 The applicant is required to demonstrate to court that there are issues or questions of fact or law which ought to be tried. This requirement aims at ensuring that a defendant with a triable issue is not shut out. (See *M. M. K Engineering vs Mantrust Uganda Ltd Miscellaneous Application No. 128 of 2012;* and *Bhaker Kotecha vs Adam Muhammed [2002]1 EA 112*) - 35 An applicant that seeks to be granted leave to appear and defend a suit must demonstrate that there is a bona fide triable issue of fact or law that he/she will

5 advance in defence of the suit. This was the principle stated in the case of *Maluku Interglobal Trade Agency vs Bank of Uganda [1985] HCB* 65, at 66 where court stated that:

*"Before leave to appear and defend is granted, the defendant must* 10 *show by affidavit or otherwise that there is a bonafide triable issue of fact or law. When there is a reasonable ground of defence to the claim, the defendant is not entitled to summary judgment. 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* 15 *which ought to be tried and the court shall not enter upon the trial of issues disclosed at this stage."*

In this particular application, the respondent/plaintiff filed *Civil Suit No. 1223/2024* on the ground that there was a breach of a contractual obligation by the 20 applicant/defendant when they only paid USD 15000 out of an expected USD 279,134. The applicant, on the other hand, denies that there was any contractual relation with the respondent and that the respondent's claim is unfounded and baseless as no service was provided. The applicant further disputes the provision and receipt of logistics services from the respondent. This in effect, shows that the 25 alleged breach is denied thereby warranting a trial on its merits

Order 36 rule (4) and (8) of the Civil Procedure Rules, provide that unconditional leave to appear and defend a summary suit will be granted where the applicant shows that he or she has a good defence on the merits; or that a difficult point of 30 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 an account to determine or any other circumstances showing reasonable grounds of a bona fide defence (see *Makula Inter global Trade Agency v. Bank of Uganda [1985] HCB 65*). In the circumstances I find that the applicant has disclosed reasonable grounds that

35 warrant a grant of leave to appear and defend.

In the premises, this application is determined as follows:

- 5 1. The applicant is granted leave to appear and defend *Civil Suit No. 1223 of 2024*. - 2. The applicant shall file their defence and serve it on the respondent/plaintiff within fourteen days from the date of this ruling. - 3. The costs of this application will abide the outcome of the main suit.

I so order.

*Dr. Ginamia Melody Ngwatu* 15 *Ag. Judge 26 th May 2025*

*Ruling delivered via ECCMIS*