[2024] UGCommC 145

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION No. 0199 OF 2023 (ARISING FROM CIVIL SUIT No. 1118 OF 2022)**

**BAMWINE QUILLINO …………………………………… APPLICANT/DEFENDANT**

#### **VERSUS**

**TRIDENT IMPEX UGANDA LTD ……………………… RESPONDENT/PLAINTIFF**

### 15 **BEFORE: HON. LADY JUSTICE SUSAN ABINYO**

### **RULING**

#### Introduction

This application was brought by Notice of Motion under the provisions of Order 36 Rule 3(1) of the Civil Procedure Rules SI 71-1, and section 98 of the Civil Procedure

- 20 Act Cap 71, seeking orders that: - 1. Unconditional leave to appear and defend Civil Suit No. 1118 of 2022 be granted to the Applicant. - 2. Costs of this application be provided for.

Facts

25 The application is supported by the affidavit of Mr. Bamwine Quillino the Applicant, deponed in paragraphs 1-14 and summarized as follows: -

That whereas the Applicant executed an Agreement for the service as averred in the affidavit, it is not true that he failed to deliver on the Agreement.

That immediately after the engagement as per the Agreement, the Applicant 30 commenced the activities, and managed to secure an allocation from the Minister of State for Urban Development of 20acres of land as per the Agreement,

5 which was communicated to the Respondent. A copy is herein attached, and marked Annexture "B".

That in the year 2021, the Applicant secured the extra 3.5 acres' allocation of land to the Respondent as seen in the letter of the Minister attached herein, and marked Annexture "C".

- 10 That at first the process of titling the land was moving on smoothly from the Ministry of Lands but the Government all over a sudden changed policy on the intervention of Cabinet, and there was a halt in the processing of titles, and allocations for the land in the Nakawa – Naguru area. That the entire process was frustrated therefore, rendering it impossible for the Applicant to deliver as per the - 15 Agreement; a copy of the letter from the Minister of Lands is attached, and marked Annexture "E".

That failure to deliver to the terms of the contract thus far, cannot be attributed to any of the actions or conduct but an intervening event due to the change in Government Policy regarding the land in the area in question, which information

20 is in public domain, and the Court will take Judicial notice of the fact that the President, Parliament, and Courts have intervened by halting any further processes, and instituting investigations with directives to stop further dealing in the land in the Nakawa- Naguru estate.

That as a result the contract has to that extent been frustrated, and as such the 25 Applicant cannot be held accountable for the actions beyond his control.

That the Applicant has a good defence to the Plaintiff's claim, and that the suit raises several issues of law and fact, which ought to be investigated by this Honorable Court

That it is in the interest of justice that this application be granted with costs.

30 The Respondent's affidavit in reply is deposed in paragraphs 1-5 by Mahmud Bharwani the Director of the Respondent Company, and summarized hereunder:

That the Applicant has admitted to entering an Agreement with the Respondent Company on the 3rd day of December 2019, wherein he was supposed to facilitate the acquiring of 20 acres of land in the Naguru, and or Nakawa estate 35 by 31st March, 2020.

5 That it is not true that the Applicant indeed met his obligation under the Agreement, since to date the Respondent Company has never been allocated the land, and has further never been in utilization of the same.

That the letters from the Ministry of State for Urban Development are false documents intended to hoodwink this Honorable Court.

10 That the Applicant has no genuine defence to the Respondent's claim, and that this Honorable Court ought to dismiss this application.

### Representation

The Applicant was represented by Counsel Tumwesigye Wycliffe of M/S TALP Advocates and the Respondent was represented by Counsel Jagwe Ibrahim of

15 T-Davis Wesley& Co. Advocates.

# Issues for determination

Counsel for the Applicant did not frame the issues for Court's determination however, in accordance with Order 15 Rule 3 of the Civil Procedure Rules, SI 71- 1, this Court framed the issues as below:

- 20 1. Whether the Applicant disclosed sufficient grounds to merit the grant of leave to appear and defend the suit? - 2. What remedies are available?

#### Submissions

Counsel for the Applicant submitted that briefly the grounds are that there are 25 triable issues, and a plausible defence. That in paragraphs 3, 4, and 9 of the affidavit in support of this application, these are intervening factors that require investigation by this Court i.e. whether the Applicant delivered on the contract by letters attached as Annextures B, C, D1, and E, which raise triable issues.

Counsel further submitted that there is a defence as stated in paragraphs 7, and 30 10 that work was done, and land was allocated, and cited the case of *Isse Shekhnor Roble & Anor Vs M. M. M. Agro Dealers Ltd, HCMA No. 514 of 2014(Arising from HCCS No. 361 of 2014)* on the proposition that where there is a bonafide triable issue of fact or law, the Defendant would be allowed to defend unconditionally.

- 5 On the other hand, Counsel for the Respondent submitted that the background to this suit is that the Respondent filed the main suit for breach of contract, and that the Respondent has never been allocated any land as indicated under paragraph 2 of the affidavit in reply. That in the circumstances of this case, the Minster of Lands cannot allocate land as indicated under paragraph 2 (d) of the - 10 affidavit in reply.

Counsel relied on the case of *Oburu Benard & 3 Others Vs Miyabele Atanani Fidel & Anor, HCMA No. 1038 of 2016(Arising from HCCS No. 778 of 2016)* on the proposition that an Applicant's application for leave to appear, and defend a summary suit should disclose in the application itself, and the affidavit in support

15 that he or she has a plausible defence to the claim in the summary suit, and that the action is not frivolous or vexatious to submit that in this case, the Applicant has not disclosed, and or does not have a plausible defence to the suit.

In rejoinder, Counsel for the Applicant submitted that the fact that there is an allegation of other parties occupying the land obtained by the Applicant in itself 20 raises an issue that there are other people in occupation; that this calls for the

Court's intervention to inquire into this issue of fact.

Counsel contended that the letters that are attached require evidence to be led, and this Court can make this inquiry, when the Applicant has been granted leave to appear, and defend.

25 Decision

# Issue No.1: Whether the Applicant disclosed sufficient grounds to merit the grant of leave to appear and defend the suit?

I have considered the evidence adduced by the parties in their respective affidavits, and the submissions of Counsel for the parties herein above, to find

30 hereunder:

The law as provided under Order 36 Rule 3 (1) of the Civil Procedure Rules SI 71-1, is that a Defendant served with summons, issued upon the filing of an 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 35 leave from Court.

# It is settled law that in an application of this nature, the Applicant has to show by affidavit or otherwise that there is a bonafide triable issue of fact or law and a plausible defence to the suit. *(See Souza Figuerido & Co Ltd Vs Moorings Hotel Co*

5 *Ltd (1959) EA 426,* cited with approval in the case of *Isse Shekhnor Roble & Anor Vs M. M. M. Agro Dealers Ltd(supra)*

In the case of *Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda [1985] HCB 65, at 66*, the Court held that:

*"Before leave to appear and defend is granted, the defendant must show* 10 *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 which ought to be tried and the court shall* 15 *not enter upon the trial of issues disclosed at this stage."* [Emphasis is mine]

In the given circumstances of this case, I find that the contention by the parties herein, as to whether the said land was allocated or not, is a question of fact, which has to be proved.

It's trite law that the Court is not required to determine the merits of the case at 20 this stage, and that the Applicant has to be given the opportunity to prove the questions of fact or law during trial. *(See Geoffrey Gatete & Anor Vs William Kyobe (2007) HCB 55*)

I have taken into further consideration the Court of Appeal decision in **Kotecha v. Mohammed [2002] 1 E. A 112,** where the Court held that;

25 *"The summary procedure on specially endorsed plaint under Order 33 of our Civil Procedure Rules is similar to a writ specially endorsed under Order 3, rule 6 (Order 14, rule 1) of the English Rules of the Supreme Court. Therefore, English authorities on that rule are of persuasive authority and provide (a) useful guide. Under the English Rule the Defendant is granted* 30 *leave to appear and defend if he is able to show that he has a good defence 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 reasonable grounds of a bona fide defence.* 35 *See Saw V Hakim 5 TLR 72; Ray v Barker 4 Ex DI 279."* [Emphasis is mine]

In the circumstances of this case, this Court finds that the documents in Annextures B, C, D1, and E, attached as evidence in support of this application, which are contested by the Respondent under paragraph 3(c) on grounds that they are false documents raises questions of both fact, and law.

5 In addition, I have looked at the draft written statement of defence attached to the affidavit in support of this application, in which the Applicant indicates the circumstances that led to the halt of the entire process, and pleads frustration as a defence.

It is my considered view that these factors stated under paragraph 4 of the draft 10 defence, amounts to a plausible defence by the Applicant.

For the forgoing reasons, this issue is answered in the affirmative.

Issue No. 2: What remedies are available?

I agree with the proposition that Order 36 was enacted to facilitate expeditious disposal of cases involving debts, and contracts of a commercial nature to

15 prevent Defendants from presenting frivolous or vexatious defences in order to unreasonably prolong litigation; cited by Counsel for the Respondent in *Post Bank (U) Ltd Vs Abdu Ssozi, SCCA No 08 of 2015.*

This Court having found issue (1) above in the affirmative therefore, finds that the application has merit.

Accordingly, this application is allowed, and Court makes the following Orders that:

1. The Applicant is granted unconditional leave to appear and defend in Civil

- 25 Suit No. 1118 of 2022. 2. The Applicant shall file a written statement of defence within 10 days from the date of this order. - 3. The costs of this application shall be in the cause.

Ruling delivered electronically this 2nd day of April, 2024.

SUSAN ABINYO **JUDGE 02/04/2024**

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