[2025] UGCommC 53

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 2169 OF 2024 (ARISING OUT OF CIVIL SUIT NO. 1156 OF 2024)** 10 **RAMZAN KAWEESI SENGENDO ::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

**ALI MOTORS (U) LTD :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

### **RULING**

## 15 Introduction

This application was brought by way of Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282), Order 36 rules 3 and 4** and **Order 52 rules 1 and 2 of the Civil Procedure Rules SI 71-1** seeking orders that:

- 20 1. The Applicant be granted unconditional leave to appear and defend *Civil Suit No. 1156 of 2024*. - 2. Costs of the application be provided for.

#### Background

The background of this application is contained in the affidavit in support 25 deponed by **Mr. Ramzan Kaweesi Sengendo**, the Applicant, and is summarised below:

- 5 1. That on 2nd August, 2023, he acquired a business loan from Post Bank and his property at Bujaasi Cell, Maya-Ward, Kyengera Town Council, Wakiso District was used as security. - 2. That he entered into an agreement with the Respondent for the purchase of the Respondent's excavator Reg. No. UBP 706B, Engine - 10 No.5135088, Chassis No. CAT0320CCBRX01080 and explained to him the purpose of the machine and that he had acquired a loan to help him deposit UGX 60,000,000/=. - 3. That relying on the Respondent's statement that the excavator was in a good condition and fit for the business he wanted to start, he 15 executed the agreement. - 4. That the Respondent misrepresented himself at the time of entering the contract which he considers illegal, as the purchased machine has never worked due to mechanical problems that the Respondent was aware of. - 20 5. That he has spent a lot of money repairing the mechanical problems to have the excavator work. - 6. That on 18th December, 2023, he communicated to the Respondent about the fact that the excavator has never worked ever since he took possession, but the Respondent has never responded yet it is aware 25 of the problem. - 7. That the Respondent was also aware that the balance was to be cleared from the business which was to be operated with the assistance and help of the purchased machine. - 8. That the application raises triable issues warranting the grant of 30 leave to appear and defend the suit.

- 5 In reply to the application, the Respondent through its Managing Director **Mr. Amer Iqbal,** opposed the application contending that: - 1. The application was filed out of time, as a default judgment had already been entered by this Court, and the Applicant did not seek leave to file out of time as prescribed by the law. The Applicant was 10 served with summons on 3rd October, 2024, which is 31 days late. - 2. That on 2nd September, 2023, the Respondent sold to the Applicant an excavator Reg. No. UBP 706B for UGX 300,000,000/=, with a down payment of UGX 60,000,000/=. The Applicant agreed to pay the balance of UGX 240,000,000/= over twelve months in monthly instalments of UGX 20,000,000/= from 1st October, 2023 to 1st 15 October, 2024. - 3. The Applicant has never remitted even a single coin ever since he purchased the excavator from them and has no valid defence. - 4. The Applicant and his mechanics inspected the excavator and 20 purchased it after they were satisfied that it was in a proper working condition and fit for the work, they wanted. - 5. The Respondent owed no obligation after delivering the excavator in a good working condition to the Applicant and did not remain with any duty of maintaining it wherever he took it to work, but only 25 waited to receive the balance as per the agreement. - 6. The assertion that the excavator has never worked since December, 2023 is false and is meant to obstruct the delivery of justice because soon after serving him with the summons and a plaint in a summary suit on 3rd October, 2024, the Applicant sent the Respondent videos 30 of the same machine in the field working on 14th October, 2024.

5 7. The only relationship the Respondent has with the Applicant is a contractual one wherein he sold the vehicle on credit to the Applicant and it expects the Applicant to pay the balance as agreed.

In rejoinder, the Applicant reiterated his previous averments and further contended that:

- 10 1. The application for leave to appear and defend was filed within time having filed the same on 16th October, 2024 as per the Court record. - 2. Upon filing, due to the delay of its endorsement by the Registrar, he printed an unsigned copy and effected service onto the Respondent. - 3. He has been making several follow-ups to have the application 15 admitted and endorsed by the Registrar. - 4. The same was admitted and endorsed on 12th November, 2024 and the same document which was properly filed under other documents on the Court record was placed again under pleadings.

# Representation

20 The Applicant was represented by **M/s Bananda Associate** while the Respondent was represented by **M/s Kagona Advocates and Legal Consultants**.

# Issues for Determination

- 1. Whether the Applicant has raised sufficient grounds to warrant the - 25 grant of unconditional leave to appear and defend *Civil Suit No. 1156 of 2024*? - 2. What remedies are available to the parties?

The parties were directed to file their written submissions however only the Applicant complied with the directives and the same have been 30 considered by this Court.

5 In its affidavit in reply, the Respondent raised a preliminary objection that, this application was filed out of time without leave of Court.

## **Order 6 rule 28 of the Civil Procedure Rules**, stipulates that:

*"Any party shall be entitled to raise by his or her pleadings any point of law, and any point so raised shall be disposed of by the Court at or* 10 *after the hearing; except that by consent of the parties, or by order of the Court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."*

It is therefore trite that where there is a preliminary objection capable of disposing of the matter in issue, it is judicious to determine the objection 15 before embarking on the merits of the case. (See: *Uganda Telecom Limited Vs ZTE Corporation SCCA No. 03 of 2017*). Guided by the above, I shall proceed with determining the preliminary objection so raised.

The Respondent's preliminary point is that this application was filed out 20 of time. **Order 36 rule 3(1) of the Civil Procedure Rules** is to the effect that upon the filing of an endorsed plaint and affidavit, the Court shall cause the service of summons in **Form 4 Appendix A of the Rules**. The period provided in **Form 4** (summons in summary suit) within which the Defendant ought to file his/her application is ten (10) days from the date 25 of service of summons.

The Applicant herein contends that he filed his application within time on 16th October, 2024 but filed the same under 'other documents' instead of under 'pleadings'. That this mistake was rectified on 12th November, 2024 after several follow-ups. In evidence, he relied on annexure "**B**" attached to 30 the affidavit in rejoinder.

5 As per the affidavit of service by Ms. Kagoya Shamim, a Court Process Server, on 3rd October, 2024, the Applicant was served with the summons. In proof, the Respondent presented an acknowledgement of receipt of the same signed by the Applicant.

## **Order 51 rule 8 of the Civil Procedure Rules** provides that:

10 *"In any case in which any particular number of days not expressed to be clear is prescribed under these rules or by an order or direction of Court, the days shall be reckoned exclusively of the first day and inclusively of the last day."*

The ten (10) days within which to file the application were set to expire on 15 14th October, 2024.

As per the Court record, this application was filed on 16th October, 2024, which was after the statutory timeframe for filing the application for leave to appear and defend *Civil Suit No. 1156 of 2024.* The Respondent vide the letter dated 18th October, 2024 wrote to Court praying that a default 20 judgment be entered against the Defendant on account of the fact that the Defendant had not applied for leave to appear and defend the suit as required by law.

As emphasised by several authorities, the time within which to file and serve Court documents is of essence and this application ought to be 25 dismissed.

However, in the case of *Patrick Katto Vs Dirk Ten Brink HCMA No. 791 of 2023* **Hon. Justice Ocaya Thomas** while determining an application that was filed late, held that: 5 *"In my view, it is in the interest of justice to set aside the default judgment in order to enable determination of the dispute between the parties on the merits, subject to the limitations imposed by summary procedure. Whereas this prejudices the Respondent which, by no fault of his had obtained a default judgment, such prejudice is one that can* 10 *be atoned in an award of costs."*

In the instant case, given that the application was filed late, after only two days, the facts of this case and in the interest of administering substantive justice pursuant to **Article 126(2)(e) of the Constitution of the Republic of Uganda, 1995** and avoiding multiplicity of suits, the instant application 15 is validated and the default judgment entered by Court on 21st October, 2024 is hereby set aside. I shall now proceed with the determination of the application on its merits.

Issue No.1: Whether the Applicant has raised sufficient grounds to warrant the grant of unconditional leave to appear and defend *Civil Suit No. 1156*

20 *of 2024*?

## Applicant's submissions

Counsel for the Applicant first relied on the law under which this application was brought. For the principles for the determination of whether leave should be granted, Counsel relied on the case of *Miter*

25 *Investments Limited Vs East African Portland and Cement Company Limited Misc. Application No. 534 of 2012*, where **Hon. Justice Christopher Madrama** (as he then was), cited with approval the case of *M. M. K Engineering Vs Man Trust Uganda Ltd Misc. Application No. 128 of 2012,* for principles that; the Applicant must demonstrate to Court 30 that there is or are triable issues or questions of fact or law which are in

5 dispute and which ought to be tried, that where the Court is doubtful whether the proposed defence is being made in good faith, the Court may order the Defendant to deposit money in Court before leave is granted to him or her.

Based on the above, Counsel submitted that the Applicant has a plausible 10 defence in *Civil Suit No. 1156 of 2024*. That the excavator purchased from the Respondent was not fit for purpose. That the problem was communicated to the Respondent who was less concerned but wants the money being made from the use of the machine however, the same has never worked. That the Applicant has spent a lot of money purchasing new 15 spare parts and labour for mechanical work. To that, Counsel reiterated that the Applicant has a good defence against the Respondent in the suit.

In his conclusion, Counsel prayed for the grant of this application.

## Analysis and Determination

I have taken into consideration the affidavit in support, the affidavit in 20 reply and the affidavit in rejoinder to the application together with the submissions and the authorities thereto.

**Order 36 rule 3(1) of the Civil Procedure Rules**, stipulates that a Defendant served with summons, issued upon the filing of an endorsed plaint and affidavit under **rule 2** of this Order endorsed, "summary 25 procedure", shall not appear and defend the suit except upon applying for, and obtaining leave from Court.

It is therefore trite that for leave to appear and defend a summary suit to be granted, an Applicant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law.

- 5 A triable issue is one capable of being resolved through a legal trial that is, a matter that is subject or liable to judicial examination in Court. It has also been defined as an issue that only arises when a material proposition of law or fact is affirmed by one party and denied by the other (See: *Jamil Ssenyonjo Vs Jonathan Bunjo HCCS No. 180 of 2012*). - 10 A defence raised by the Applicant should not be averred in a manner that appears to be needlessly bald, vague or sketchy. If the defence is based upon facts, in the sense that material facts alleged by the Plaintiff in the plaint are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or determine whether or not 15 there is a balance of probabilities in favour of one party or the other. In essence, where the Applicant raises a good defence, the Plaintiff is barred from obtaining a summary judgment as portrayed under **Order 36 rule 7 of the Civil Procedure Rules** and the cases of *Kotecha Vs Adam Mohammed [2002] 1 EA 112* and *Geoffrey Gatete & Another Vs* 20 *William Kyobe, SCCA No.7 of 2005*.

In the instant application the Respondent vide *Civil Suit No. 1156 of 2024*, instituted a summary suit against the Applicant for recovery of UGX 240,000,000/=. The claim is based on the background that on 2nd September, 2023, the Respondent sold to the Applicant an excavator Reg. 25 No. UBP 706B, for UGX 300,000,000/=, with a down payment of UGX 60,000,000/=. That the Applicant agreed to pay the remaining UGX 240,000,000/= over twelve months in monthly instalments of UGX 20,000,000/= from 1st October, 2023 to 1st October, 2024 but to date, no payment has ever been effected.

30 The Applicant herein filed this application disputing the Respondent's claim. He states that he entered into a contract with the Respondent for

- 5 the purchase of the excavator as evidenced by annexure **"A"** attached to the affidavit in reply. However, he contends that the machine was not fit for purpose. He claims that before entering into the agreement, he explained to the Respondent the purpose of the machine. However, that the Respondent misrepresented to him that the excavator was fit for 10 purpose. That since its purchase, the machine has had several breakdowns that have not enabled the Applicant to raise the money to pay the balance. That he has spent about UGX 79,050,000/= in purchasing spare parts and payment for labour. - In evidence, the Applicant relied on annexures "**C**" and "**D**" (pictures of said 15 excavator and the receipts of spare parts purchase and repair respectively) attached to the affidavit in support. He also contends that the Respondent was informed of the same but no response was received. In evidence, he referred to the WhatsApp communication with dates from 18th December, 2023 to 24th March, 2024 as contained in annexures "**B"** and **"C**" attached 20 to the affidavit in support. Though the Respondent contends that the - Applicant's allegations are false, it did not respond to the said annexures.

Upon evaluation and consideration of all the evidence above, the Applicant's argument and the facts of the case raise questions that need to be investigated by Court before the matter is determined. The Court 25 needs to ascertain the circumstances under which the excavator was bought, the condition it was in at the time of purchase, the representations made by the Respondent if any, whether the machine was fit for purpose at the time of its purchase and whether either party is entitled to any relief. These in my view, are material questions that raise triable issues of law 30 and fact that require further investigation by Court and interpretation of the Contracts Act and Sale of Goods and Supply of Services Act among

5 others before conclusive determination of the matter in the interest of justice.

As espoused in the authorities discussed above and as laid out in the case of *Twentsche Overseas Trading Co. Ltd Vs Bombay Garage [1958] EA 741*, summary procedure is resorted to in clear and straightforward cases, 10 where the demand is liquidated and there are no issues for determination by the Court except for the grant of the claim.

In the instant case, since the Applicant has raised triable issues of law and fact regarding the circumstances prior to the agreement, state of the excavator at the time it was purchased and whether there was 15 misrepresentation by the Respondent; it is in the interest of justice that the Applicant be granted leave to appear and defend hence placing the plaint in *Civil Suit No. 1156 of 2024* outside the ambit of **Order 36 of the Civil Procedure Rules.**

## Issue No.2: What remedies are available to the parties?

- 20 According to the case of *Churanjila & Co. Vs A. H Adam (1) (1950) 17 EACA 92*, the East African Court of Appeal held that a Defendant who has a stateable and arguable defence must be allowed to state it and argue it before the Court. That all the Defendant has to show is that there is a definite triable issue of fact or law. - 25 In the premises, I find the application to have raised triable issues of law and fact that merit its grant.

Regarding costs, **Section 27(2) of the Civil Procedure Act** provides that costs of any cause follow the event unless otherwise ordered by the Court. In the case of *Uganda Development Bank Vs Muganga Construction*

5 *Co. Ltd [1981] HCB 35,* **Hon. Justice Manyindo** (as he then was) held that:

"*A successful party can only be denied costs if it is proved, that but for his or her conduct, the action would not have been brought, the costs will follow the event where the party succeeds in the main* 10 *purpose of the suit."*

Since the Respondent has been prejudiced by the setting aside of the default judgment, which was entered on account of the Applicant's fault, I hereby award costs of this application to the Respondent.

Accordingly, this application is granted with the following orders:

- 15 1. The Applicant is hereby granted unconditional leave to appear and defend *Civil Suit No. 1156 of 2024***.** - 2. The Applicant is ordered to file his Written Statement of Defence within fourteen (14) days from the date of this Ruling. - 3. Costs of this application are awarded to the Respondent.

20 I so order.

Dated, signed and delivered electronically via ECCMIS this **17th** day of **February, 2025**.

Patience T. E. Rubagumya

25 **JUDGE** 17/02/2025