[2025] UGCommC 99

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 2177 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 1117 OF 2024)**

# **1. INTERNATIONAL MEDICAL LINK**

# **2. DR. POSSY MUGYENYI LWABUTAKU**

## **3. NAMAZZI MARIAM::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

## **VERSUS**

15 **EQUITY BANK (U) LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

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

#### **RULING**

- 20 The applicants brought this application under Section 33 of the Judicature Act, section 98 of the Civil Procedure Act and Order 36 Rules 3 and 4 of 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. 1117 of 2024* and that costs for the application be provided for. - 25 The background to this application is that the respondent filed a summary suit vide *Civil Suit No. 1117 of 2024 Equity Bank (U) Limited vs International Medical Link & 2 Others* against the applicants under Order 36 rule 2 of the Civil Procedure Rules SI No. 71-1, as amended. for recovery of a liquidated sum of Ugx 4,146,128,481.53 being the outstanding balance on loan facilities extended to the applicants, interest at a rate of 20.5% per annum from the date of filing 30 the suit until recovery in full and costs of the suit. The respondent's cause of action against the applicants is that the 1st applicant and the 2nd and 3rd applicants as guarantors, failed to repay the loan debt which amounted to a breach of the loan agreement that the parties had entered into. The respondent sought to recover the same from the applicants and filed *Civil Suit No. 1117/2024*. The applicants subsequently filed this application to be granted leave to appear and - 35 defend the said suit.

#### 5 **Representation at the hearing**

The applicant was represented by Mr. Andrew Oluka of Muwema & Co. Advocates; while the respondent was represented by Mr. Golooba Mohammed of Simul 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. 1117 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:

20 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 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 25 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.

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.* 30 *128 of 2012;* and *Bhaker Kotecha vs Adam Muhammed [2002]1 EA 112*)

For an applicant to be granted leave to appear and defend a suit, the applicant must show that there is a bona fide triable issue of fact or law that he/she will advance in defence of the suit. This principle was 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 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* 40 *merits but should satisfy the court that there was an issue or question in dispute which ought to be tried and the court shall not enter upon the trial of issues disclosed at this stage."*

- 5 There is no contention that the respondent advanced several loan facilities to the first applicant; while the 2nd and 3rd applicants provided continuing and personal guarantees on the same. The dispute emanates, on the one hand, the respondent's claim that the 1st applicant and the 2nd and 3 rd applicants as guarantors failed to repay the loan debt amounting to the sum of Ugx 4,146, 128,481.53; hence a breach of the loan agreement and its attempt at recovery of the said sum the - 10 same from the applicants. The applicants, on the other hand, are in disagreement and contest the respondent's claim. The applicants dispute the amount claimed by the respondent in the plaint, which requires the taking of an account to determine the correct status of the applicant's loan obligations; hence, this application for a grant of unconditional to appear and defend the claim made by the respondent. - 15

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 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

- 20 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*). The applicant has demonstrated that there is a dispute as to the amount claimed which requires taking an account to determine. I find that there are grounds disclosed that entitle the applicant to the relief sought. - 25 In the premises, this application is determined as follows: - 1. The applicant is granted leave to appear and defend *Civil Suit No. 1117 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 results of the suit.

I so order.

*Dr. Ginamia Melody Ngwatu* 35 *Ag. Judge 23rd May 2025*

*Ruling delivered via ECCMIS*