[2003] UGHCCD 4

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **MISCELLANEOUS APPLICATION NO. 312 OF 2003**

## **(Arising from HCCS No. 285 of 2003)**

#### **GREENLAND BANK (IN LIQUIDATION)... PLAINTIFF**

## VERSUS

DEFENDANT **JAMES BAKAINE Before The Hon. Mr. Justice E. S. Lugayizi**

#### RULING

This ruling is in respect of an application for Court's orders below,

- 1. That the decree passed against the applicant in Civil Suit No. 285 of 2003 be set aside. - 2. That execution ofthe above decree be stayed. - 3. That Miscellaneous Application No. 312 of 2003 seeking leave to appear and defend be heard and determined on its merits.

- 4. That the applicant be granted leave to defend the head suit. - 5. That the costs ofthis application be provided for.

An affidavit that Mr. Alex Cwinya swore on 30/6/2003 accompanied the application.

In an affidavit filed on 21/10/2003 Mr. Benedict Sekabira opposed the application.

Briefly, the background to the application is as follows. Before the closure of the respondent it lent the applicant a sum of shillings 2,500,000/=. The applicant did not bother paying back the said loan and by 31/3/2003 his indebtedness to the respondent stood at shillings 6,942,815/=. As a result, the respondent filed HCCS No. 285 of 2003, under summary procedure, against the applicant and claimed the above sum ofmoney (i.e. shillings 6,942,815/=). The respondent duly served the applicant with summons and later applied to the Deputy Registrar of the Commercial Court for judgment/decree. On 19/6/2003 the Deputy Registrar obliged. The applicant felt aggrieved and, therefore, made the application that is the subject of this ruling with a view to obtaining Court's orders referred to above. Roughly, that is the background to the application.

At the time of hearing the application Mr. Byamugisha Kamugisha represented the applicant and Mr. Lumonya together with Ms. Bushara represented the respondent. However, counsel for the respondent pointed out quite early that although the respondent was now satisfied that the applicant filed the application for leave to defend the head suit in time, the respondent still intended to oppose the application on other grounds.

Be that as it may, in his submissions Mr. Byamugisha Kamugisha pointed out that the affidavit that accompanied the application was good in law and that it had merit in the sense that it raises triable issues. For example, Mr. Byamugisha Kamugisha revealed that the applicant intended to show that he paid off the whole debt and does not owe the respondent any money. Mr. Byamugisha Kamugisha further insisted that the interest Court ordered the applicant to pay on the decretal sum from 1999 until payment in full was imposed in error because it was double interest. Mr. Byamugisha Kamugisha finally called upon Court to grant the applicant , yQ, the orders referred to above.

**o .0V** Mr. Lumonya was of a different view. He vehemently opposed the application. He submitted that Mr. Cwinya's affidavit was defective. In his opinion Mr. Cwinya swore to matters he did not know. For example, 1° Mr. Cwinya being simply a process server he could not have known whether or not the application that is the subject of this ruling raised triable issues. Secondly, Mr. Lumonya submitted that it was not true that the applicant paid off the debt in question. The attachments to the plaint revealing the state of the applicant's account at the time of filing the head suit confirm that fact. Thirdly, Mr. Lumonya insisted that it goes without saying that the applicant was supposed to pay interest on the bank loan he took. For the moment the applicant signed that he would take the loan it meant he also agreed to pay the interest arising from it. Mr. Lumonya therefore, prayed Court not to grant the orders sought, but instead dismiss the application with costs.

From the foregoing it is apparent that the application that is the subject of this ruling raises three basic issues, namely:

- 1. Whether the application is fundamentally defective. - 2. Whether the application raises triable issues. - 3. The remedies available.

Court will discuss each ofthe above issues in the light ofthe evidence on record in turn.

With regard to the first issue **(i.e. whether the application is fundamentally defective)** Court has this to say. In its understanding when something is described as being **"fundamentally defective"** it means it has a very serious flaw that goes to its roots and damages them

**...**

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to the extent that such thing becomes irretrievably bad and, therefore, useless. If such thing is an application before a court of law it means it is even unintelligible and nothing can be done to improve it. For that reason, it cannot stand as the basis of any remedy in court. The important question to answer is whether the application that is the subject of this ruling falls within the above definition? Court thinks that it does not. Although it is possible to say that the application in question might not be perfect and could have been formulated in a different way, it would be unfair to say that it is unintelligible, for that is not the case. The application cites the correct law. It is couched in the language of Court (i.e. English); and its purpose is very clear (i.e. to obtain Court's orders earlier on referred to herein). That aside, the areas of the application the respondent's counsel mainly attacked (i.e. paragraphs 7-10 of Cwinya's affidavit, which are to the effect that the application raises triable issues) admittedly found their way into the application through information Cwinya got from the applicant's advocates. Court sees nothing wrong with that.

All in all, Court thinks that the application that is the subject of this ruling is not fundamentally defective. This is particularly so, when one remembers that courts are enjoined under Article 126(e) of the Constitution to administer justice without undue regard to technicalities. It seems Mr. Lumonya paid no attention to that constitutional provision before attacking the form of the application. However, if Court were to dwell on form alone it is doubtful whether Mr. Lumonya would have gone far in opposing the application, for Mr. Benedict Sekabira's affidavit, which is the basis of the reply Mr. Lumonya made is also not dated.

With regard to the second issue **(i.e. whether the application raises triable** issues) while the applicant alleges that he paid off the debt in question, the respondent insists that he did not. That aside, there is also the disagreement between the parties in respect of interest payable on the principal debt. In essence, the applicant alleges that the respondent charged interest twice in its claim against him. However, the respondent disputes that allegation. It insists that the interest payable on the principal sum as expressed in the judgment/decree has nothing wrong with it and should therefore remain as it is. Of course, as things stand now Court cannot tell which of the two parties is right on any of those issues. That means Court must inquire into the said issues ifit is to put them to rest. In

the circumstances, it is clear that the application that is the subject of this ruling raises triable issues.

With regard to the third issue (i.e. **the available** remedies), since Court has decided the first two issues in favour of the applicant it means the application that is the subject ofthis ruling has succeeded. For that reason Court must grant the applicant the remedies he is seeking; and, therefore, Court hereby makes the following orders:

- 1. The decree that was entered against the applicant in High Court Civil Suit No. 285 of 2003 is set aside. - 2. The process of execution that was put in motion following the above decree is also set aside. - 3. The applicant is granted leave to defend the head suit; and he may file his defence within 15 days from today. - 4. The costs ofthe application shall abide the outcome ofthe head suit.

*79* . S. LugayiziV 17/11/2003

Read before: At 9.41 a.m.

Mr. Byamugisha Kamugisha for the applicant

Mr. Sewanyana c/clerk

E. S. Lugayizi/ 17/11/200'