[2021] UGCommC 91

## **THE REPUBLIC OF UGANDA**

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

#### **(COMMERCIAL COURT)**

#### **M. A NO. 255 OF 2020**

#### **(Arising from civil suit No. 901 of 2019)**

**KANZIRA NKOKO MOSES:::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**BARCLAYS BANK (U) LTD::::::::::::::::::::::::::::::::::::::RESPONDENT**

# **BEFORE: HON . JUSTICE DUNCAN GASWAGA**

## **RULING**

- [1] This is an application brought under, order 36 rules 3 and 2 and order 52 rules ¹ and 3 of the Civil Procedure Rules SI 7-1 as well as section 98 of the Civil Procedure Act; that leave be granted to the applicant to appear and defend Civil Suit No. 901 of 2019 and costs of the application to be provided for. - [2] The grounds of the application are set out in the affidavit of **Christine Shemerirwe** and are that; the main suit raises triable issues of fact and law which must be adjudicated upon by this honorable court; the applicant has a good, valid and meritorious defence to Civil Suit No, 901 of 2019: the loan transaction, the applicant is acting as a guarantor to the principal debtor ; the principal debtor is still ready and willing to pay off the debt; that the first respondent should not come to this honorable court trying to summarily enforce the terms of a personal guarantee yet there are valid matters of law and fact yet to be determined by court in a prior suit at the High court of Mukono Vide Civil Suit No. 224 of 2017 in which both the applicant and the

respondent are defendants; that the summary suit is brought in bad faith for failure to disclose that the mortgaged property has unresolved court dispute in court.

[3] This application raises one issue.

## **(i) Whether the application raises triable issues for which the applicant should be granted leave to appear and defend Civil Suit no. 901 of 2019.**

- [4] Counsel submitted by way of written submissions. Counsel for the applicant relied on the case **of Makula Interglobal Trade Agency vs Bank of Uganda HCCS No 950 of 1985** where it was held that in a summary suit before leave to appear and defend is granted, the defendant must show there is a bonafide triable issue of fact or law. Counsel went ahead to submit that in paragraph 3 of the applicant' affidavit the applicant is being sued as a guarantor of the loan obtained by the 2nd respondent from the 1st respondent bank and that the 1st respondent is ignoring the pending dispute affecting the respondents. That it is an abuse of court process for the 1st respondent to file the present suit well aware of the pending suit where there are serious and unresolved matters. - [5] Counsel for the respondent on the other hand submitted that the applicant is not being truthful in his application for leave to appear and defend and counsel relied on order 36 of the CPR where he stated that 'once the applicant is served with a plaint in summary procedure, the law obliges the Applicant to file for leave to appear and defend the suit within (10) days from the date of service armed with a reasonable defence. Counsel further quoted Mulyagonja, J, (as she then was) where she set out the law and procedure pertaining order 36, in the case of **Begumisa George Vs. East African Development Bank M. A No. 451 of 2010** cited with approval in the case of **Zola & Anor Vs. Ralli Brothers Ltd & Anor [1969] EA 691 at 694,** a decision about Kenya equivalent of our then Order 36 where it was held that Order 35 is intended to enable a plaintiff with a

liquidated claim to which there is clearly no good defense, to obtain a quick and summary judgment should place evidence by way of affidavit before the judge showing some reasonable ground of defence.

- [6] Counsel then submitted that the 2nd Respondent was advanced loan facilities of Ushs. 400,000,000/= and 98,000,000/= respectively which he faulted on the due dates and 547,584,908/= which too was due and outstanding. The applicant in a brief rejoinder stated that the 2nd respondent halted payments of the loan it obtained because of the dispute concerning the subject loan/mortgage. - [7] ^I have carefully considered the Applicant's application, the affidavit evidence for and in opposition to it, the written submissions of counsel and the law. The settled law is that for an application for leave to appear and defend to be granted, the applicant has to show that there is a bonafide triable issue of fact or law that he will advance in defense of the suit which in this application is the pending suit in the High Court of Uganda at Mukono **(Civil Suit No. 224 of 2017 Ayepei Stephen Ryan Vs. Atai Jennifer, Osie Peter, Zirode Consulting Company Ltd & Barclays Bank Ltd). Prudence** requires that the first suit is attended to since the applicant has shown that the issues for discussion therein are of direct consequence herein. **See Makulla Inter Global Trade Agencies Ltd Vs. Bank of Uganda (supra).** - [8] Accordingly, ^I find that this Application discloses bonafide triable issues in essence indicating a plausible defence to the claim. ^I find this application meritorious and it is in the circumstances granted. Costs shall be in the cause.

#### **^I so order**

**Dated, signed and delivered at Kampala this 23rd day of March 2021**

**Duncan Qaswaga**

**JUDGE**