[1993] UGHC 54

#### THE REPUBLIC OF UGANDA

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

# CIVIL SUIT NO. 219 OF 1993

JOHN J. E. W. KINTU ....................................

### VERSUS

$1 - 1^2$ THE REGISTERED TRUSTEES OF UGANDA CENTRE ... RESPONDENT/PLAINTIFF. $\vdash \varnothing \quad \text{if} \quad \varnothing \vdots$ OF ST. JOHN AMBULANCE ASSOCIATION ĭ

BEFORE: - The Honourable Mr. Justice J. W. N. Tsekooko

# ORDER

The applicant is the defendant while the respondent is plaintiff in HCCS. No. 219 of 1993. The suit was instituted by way of Summary Procedure under Order 33 Rules 1 and 2 (b) of the Civil Procedure Rules.

The applicant instituted this Notice of Motion under Order 33 Rule 3 seeking leave of this court to appear and defend the suit. $\mathcal{L}^{(1)}$

The grounds in support of the motion as amended are these:

"1. The plaintiff's claim against the defendant is not the kind that should have been instituted under Order 33 Rule 2 of Civil Procedure Rules.

2. The defendant has reasonable defence to this suit as the Chairman of the Council had no constitutional powers to dismiss the defendant from his postion as executive Secretary of the St. John Ambulance Association of Uganda.

3. The plaintiff has no cause of action against the defendant as the building from which he seeks to evict the defendant is the property of the St. John Ambulance Association of Uganda which has authorised the defendant to maintain the said properties.

4. That the plaintiff's decision to Institute the suit is erroneous for want of procedure because the Headquarters of the Order of St. John in London to which the Council is subject is

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yet to arbitrate qji the dispute between the plaintiff and the defendant. •

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5\* Defendant1s summary dismissal was improper in as much as the Chairman of the Council had no constitutional powers to dismiss the defendant, was baised against the defendant, did not give the defendant the right to be heard and all the members who purportedly took the..decision had an interest in the matter whi<h they never declared.

6. The suit is premature, the dispute should have been referred to the Grand Priory, that is the parent association in London for decision..

7. The defendant has a conate^niaim with great chances of success".

To the notice of motion is annexed two affidavits sworn by the applicant. The first was sworn on 29th April, ¹⁹⁹³ and the supplementary affidavit was sworn on 25th May, 1993\* Also annexed is proposed Written Statement of Defence.

All the pleadings including the plaint are photocopies.

In his submission, Mr. Mugisha, learned counsel for the applicant read the grounds in Notice of Motion and referred me to paragraphs 2,4,5,6,7,8 and ¹⁰ of the first affidavit and paragraphs 3,^,5,6 and ⁸ of the supplementary affidavits. He then in summary submitted that Order 33 was inappropriate and secondly that the averments in the affidavits show that the dismissal was improperly done. Thirdly he stated that the counterclaim raises triable issues which should be determined after hearing both parties. He stated that there was no land lord and tenant relationship between the parties.

He cited Budai Coffee Hulling Factory Ltd. Vs. Eriya M.. Babumba /19&37 EA 613 for the view that only actions for recovery of land and debts or liqiudated demand are triable under Order 33 Rule 2 (b) but not possession of land.

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He also cited Uganda Transport Co. Ltd. Vs. Count Dela Pasture /19547 21 EACA 163 for the view that there is no discretion to allow a claim to be instituted by Summary Procedure if it is within the terms of Order 33 Rule 3.

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He cited Maluku Inter global Trade Agency Ltd. Vs. Bank of Uganda /19837 HCB 163 for the view that where a counterclaim is not a sham and proposed<br>Written Statement of Defence leave shows a credihledetence, leave to defend should be granted.

In the course of his submissions Mr. Magezi, learned counsel for the respondent indicated that he would concede to the application if the applicant accepted to vacate the suit premises. This was unacceptable to the applicant.

On the other contentions of appropriateness of Order 33 Rule 2, I should reproduce the applicable portion thereof.

Order 33 Rule 2 (b) states:

"All suits (b) being actions for the recovery of land, with $.10.$ or without a claim for rent or mesne profits, a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or ....... may, at the option of the plaintiff be instituted by presenting a plaint in the form prescribed endorsed "Summary Procedure......"

Assuming for purposes of this point whether summary suit can be brought for recovery of only land, that the Chairman of Respondent is a registered trustee of St. John's Ambulance which is the land lord, in my view the above quoted provisions allow institution of the suit. In my view both the cases of UTC (Supra) and Babumba (Supra) are distinguishable from the present case. In Babumba's case, Jones, J., appears to have been dealing with Order 33 Rule 2 (a) and not rule 2 (b). Each limb of Rule 2 applies to different situations and I am myself sure that action for recovery of land can be instituted under Rule 2 (b). The suit in this was instituted under Rule 2 (b) for recovery of land: See the case of Momen Corporation (U) Ltd. Vs. H. Jiwani /19647 EA 244

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where Sherridan $J_{\bullet}$ , as he then was, was of the same view. See also Maluku Vs. Bank of Uganda /19837 HCB 63 for similar view.

On the other grounds, Mr. Magezi submitted that dismissal of applicant was properly done. That as applicant doesn't deny to be tenant of the premises there therefore exists the landlord/ tenant relationship. This matter and others alleging wrongful dismissal do raise contentions matters. Thus they raise triable issues. There is a wealth of case law to support the view that where there are triable issues, leave to defend should be granted. See the case of Maluku (Supra), Sonza Figuerido & Co, Ltd. Vs. Mooring Hotel Co. Ltd. /19597 EA 425.

In these circumstances I allow the application for leave to defend.

I accordingly make the following orders:

- $(a)$ Defendant applicant should enter appearance and he (the applicant defendant) should file Written Statement of Defence within (10) days from the date hereof. - (b) Costs of this application shall be in the cause.

**TSEKOOKO** J U D G E 27/8/1993.

$30/8/1993$ at 9.11 a.m.

Mugisha for applicant/defendant.

Magezi for respondent/plaintiff.

Ssensonga court clerk.

Order delivered.

J. W. N. TSEKCOKO

JUDGE

30/8/1993.

Mugisha: Amendment had been made so that plaintiff is now Registered Trustees of Uganda Centre of St. John Ambulance Association.

Magezi: That is correct.

Court: Pleadings on file should be appropriately corrected.

—^~ J ^U ^D ^G E J. W. N^T&Ei?OOKO 30/8/1993.