[2023] UGCommC 142

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CoMMERCTAL DMSIONI MISC. APPLICATION NO. 2141 OF 2023 lARrsrNG ouT oF crvrL surT No. o8o7 oF ²⁰²³¹

# THE CAPITAL TIMES LIMITED APPLICANT/DEFENDANT VERSUS

10 EVA LYNETTE KAKYOMYA RESPONDENT/PLAINTIFF

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

#### RULING

1s Introduction

This application was brought by Notice of Motion under Order 36 rules 2, 3 and 4 and Order 52 rules | ,2 and 3 of the Civil Procedure Rules SI 7 1- ¹ seeking orders that:

- 20 a) This Honourable Court be pleased to grant the Applicant unconditional leave to appear and defend Civil Suit No. 0807 of 2023. - b) Costs of this application be provided for.

Background

The application is supported by an affidavit of Mr. Nabimanya Isaac, a Director in the Applicant Company and its grounds are summarised below;

That the Respondent hatched a plan to illegally terminate the Applicant's tenancy agreement using this Honourable Court through the following ways; 30 ¹

ft

- (i) The Respondent earlier instituted HCCS No. 16 of 2023 in this Honourable Court by way of specially endorsed plaint demanding rent for six months amounting to UGX 72,O0O,OOO /: (Uganda Shillings Seventy-Two Million Only). - (ii) The Applicant disputed the rent demanded by filing M. A No. 081 of 2023 for leave to appea-r and defend the suit wherein it referred to the tenancy agreement signed with the Respondent which put monthly rent at USD \$ 1800 (around Uganda Shillings Six Million Only per month) and in six months it would have been UGX 36,000,000/= and not UGX 72,000,000= claimed in the specially endorsed plaint. - (iii) The Applicant further attached mobile money and account statements reflecting recent payment of rent to the Respondent hence the Learned Trial Judge found that the Applicant had a plausible defence and granted it leave to lile a written statement of defence and further ordered for mediation to settle and reconcile all issues concerning outstanding rent. 15 - (iv) The Respondent did not IiIe an affidavit in reply to the Applicant's application for leave to appear and defend after the Applicant had unearthed her falsehoods in the specially endorsed plaint and affidavit in support. - (v) The Respondent illegally and unlawfully evicted the Applicant during Court vacation using her present lawyers.

2. That the Applicant has since reported a case of trespass and theft at

Jinja Road Police station against the Respondent's present lawyers vide Jinja Road Police Station CRB 73O/2023. 30

/,\*

- 3. That the Applicant shall disapprove its indebtedness to the Respondent through obtaining an order of audit of all the payments it has been effecting to the Respondent through cash basis, mobile money and bank account which can only be done in the main suit and not at this stage. - 4. That the Applicant further disputes the amount demanded by the Respondent, as the monthly rent according to the tenancy agreement is USD \$ IAOO (approximately Uganda Shillings Six Million Only per month) and there is no way it can accumulate to UGX 54,000,000/= in six months.

In reply to the application, the Respondent in her affidavit contended in summary that;

- 1. The Applicant did not appear for mediation and the sarne was closed due to lack of interest by the Applicant. 15 - 2. Legd re-entry with notice was made and the Applicant's Manager Mr. Dan Ankunda was present and he picked all the stock and the properties belonging to the Applicant, save for the generator, ² televisions and a shade that are in the possession ofthe Respondent. - 3. The Applicant was in arrears for 8 months; that is from January up to August when she instituted Civil Suit No. 807 of 2023 and that is how the amount accumulated up to UGX 54,OOO,OOO.

In its affidavit in rejoinder by Mr. Nabimanya Isaac, the Applicant maintained that the Respondent's lawyer Mr. Jason Kiggundu collected rent (by cash) for six months (December 2022 - May 20231 from the Applicant's cashier Mr. Twonryeirwe Robert Kagangisa at the suit

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premises and that the CCTV footage can be retrieved from the suit premises.

The Applicant also filed a supplementary affidavit deponed by Mr. Twongyeirwe Robert Kagangisa its cashier, briefly stating that Mr. Jason

5 Kiggundu collected rent by cash for six months.

Both parties filed their written submissions in Court which I have taken into consideration.

#### Representation

The Applicant was represented by M/s Sebbowa & Co. Advocates and the Respondent was represented by M/s Jason & Co. Advocates. 10

#### Issues for determination

- 1. Whether the Applicant raised sufficient grounds to warrant the grant of - leave to appear and defend the suit? 15 - 2. What remedies are available?

### Consideration of the preliminary points of law

- Counsel for the Applicant sought to raise a preliminary objection to strike off the Court record the Plaintiff's plaint for failure to disclose a cause of action against it due to the following reasons: 20 - a) The tenancy agreement is inadmissible in evidence for failure to comply with the Stamp Duty Act, 2014. - 25

b) The Respondent's statement of account is inadmissible under the Evidence Act and Evidence (Bankers'Books) Act Cap 7.

c) The Respondent neither attached the Plaint and her affidavit in reply, a demand notice for rent issued to the Applicant nor attached URA

rental tax returns to prove that the Applicant has not paid rent from January to July.

d) Seek indulgence of Court to order Mr. Jason Kiggundu to recuse himself from representing the Respondent/Plaintiff in this matter.

Counsel for the Applicant submitted that the above preliminary objections/ issues of law point to defects in the Respondent's plaint which this Court should not over look to condemn the Applicant unheard on merits.

This Court has taken note of the points of law as raised by Counsel relating to the alleged defects in the Respondent's/Plaintifl"s plaint in the main suit HCCS No.08O7 of 2023. I find that the three preliminary points (a-c) are matters which require interpretation of the law and cannot be determined in this application. The objections are premature and I will therefore not delve in determination of these points.

Counsel further raised an issue about the Respondent's lawyer Mr. Jason Kiggundu being a potential witness and that he should therefore recuse himself. He relied on Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2 and on the Supreme Court case of Uganda Deuelopment Bank Vs Kaslrye, Bganthanga & Co, Adaocates, SCCA NO, 35fi994, judgement of Wambuzi CJ (as he then was) where it was held that, 20 25

> "It is generally accepted that the main intention of this regulation is that an Aduocate should not act as Counsel and witness in the same case".

30 The Applicant in paragraph 7 of the affidavit in rejoinder avers that Mr. Jason Kiggundu received rental arrears for six months in cash and ft

therefore he is a key witness in the resolution of the facts in dispute. Accordingly, it is only proper that Mr. Jason Kiggundu recuses himself from representing the Respondent/ Plaintiff in this matter in accordance with Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2.

On the objection raised by Counsel for the Respondent about the supplementary affrdavit in rejoinder, paragraph 7 of the Applicant's aflidavit in rejoinder averred that money for rent had been paid. My view is that the supplementary affidavit in rejoinder provides more relevant details about this assertion to enable Court evaluate the same in the interest of justice. Furtherstill, since it was filed on the same day as the Applicant's affidavit in rejoinder, I will order that the Applicant's supplementary affidavit in rejoinder is maintained on Court record.

I will now proceed to the determination of the merits of the instant application. 15

#### Resolution

## Issue I

Whether the Applicant raised sullicient grounds to warrant tbe grant of leave to appear and defend the suit? 20

I have considered the evidence of the parties adduced in their affidavits, the submissions of Counsel for the parties herein, and the cases cited to find as hereunder:

The law under Order 36 rule 3 (1) of the Civil Procedure Rules SI 71-1, provides that a defendant served with summons, issued upon the filing of an endorsed plaint and a-ffidavit under rule 2 of this Order endorsed

⁶ A 7\* "Summary procedure", shall not appear and defend the suit except upon applying for, and obtaining leave from Court.

The law governing applications for leave to appear and defend a summary suit is that an Applicant/Defendant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law.

A triable issue is one capable of being resolved through a legal trial, that is to say, 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 Jcmil SengonJo Vs Jonathan BunJo, H,C, Cfunl Sult No. 18O of 20121.

Further, in the case of Kotechrr Vs Mohammed [2OO2] 7 EA 772, tl:e Court of Appeal held that where a suit was brought under summaqr procedure on a specially endorsed plaint, the Defendant is granted leave to appear if he or she is able to show that he or she has a good defence on merit, or that a difficult point of law is involved; or a dispute as to the facts which ought to be tried; or a real dispute as to the amount claimed which 15 20

requires taking an account to determine; or any other circumstances showing reasonable grounds of a bona lide defence.

In the case of Geoffreg Gatete & Anor Vs Wtlltam Kgobe, Supreme Court Ctvil Appeal No.7 of 2OO5, Court held that; 25

> "The defendant is not bound to show a good defence on the meits but should satisfy tle Court that there was an issue or question in di.spute tuhich ought to be tied and the Court sholl not enter upon the tial o/ issues disclosed at this stage" .

In the instant case, the Applicant contends that the monthly rent according to the tenancy agreement is USD\$ 18OO (approximately Uganda Shillings Six Million Only per month) and that there is no way it can accumulate to UGX 54,000,000/= in six months. The Respondent however under paragraph 9 of her affidavit in reply avers that the claimed amount of UGX. 54,000,000 is for a period of eight months.

This fact cannot be reconciled now without Court considering the evidence because on the one hand the Applicant claims in the affidavit in rejoinder under paragraph 7 that the Respondent's lawyer Mr. Jason Kiggundu collected rent by cash for six months from Mr. TWonryeirwe Robert Kagangisa who states in the supplementary affidavit under paragraphs 4 and 5 that payment was made in the presence of some witnesses.

Therefore, there is a dispute on the facts specifically on the amount outstanding. Court at this point is not in position to hear the testimony of the other parties and especially from Mr. Jason Kiggundu who the Applicant alleges received the rent money for six months, to determine whether or not the rent being demanded was indeed paid. The Applicant's 15

facts of payment and the Respondent's total demand for the arrears is evidently not reconciled and this creates a triable issue of facts therein since the Applicant claims that it does not owe the Respondent rent to the tune of UGX 53,OOO,OOO as stated in the affidavit in rejoinder under paragraph 13. 20

This Court has also noted inconsistencies in the amounts claimed. According to the earlier suit HCCS No. 16 of 2023, the claim is for UGX 72,OOO,OOO for six months. However, in the instant application the claim is for eight months and the sum being claimed is UGX 54,000,000, yet the

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claims are all under the tenancy agreement dated 26th June 2019 where the monthly rent is stated as USD\$1800.

5 Furthermore, the Applicant has raised an issue relating to eviction and sale of its property. The Respondent claims under paragraph 4(f) of the a-ffidavit in reply that the Applicant's Manager picked all the property save for the generator, 2 televisions and a shade that are in the possession of the Respondent. The Respondent does not provide any reason as to why the aforementioned property is still in her possession and what she intends to do with it. The Applicant disputes the indebtedness to the Respondent with a counterclaim of UGX 347,767,OO=. I find that the issue of the counterclaim, eviction and the property attached ought to be investigated and determined on the basis of evidence so as to avoid multiplicity of suits on the sarne or related subject matter. The Court at this stage should not enter upon the trial of the issues disclosed as was held in the case of Maluku Interglobal Trade Agencg Ltd Vs Bank of 10 15

Uganda [1985] HCB 65. It is therefore in the interest of justice that the Applicant is allowed to defend the suit.

Furthermore, I have noted that Civil Suit No.16 of 2023 filed by the Respondent against the Applicant in respect of the subject matter herein with similar facts though with differences in the amounts being claimed, is pending in the High Court Commercial Division for determination. Order 1 1 rule 1(a) of the Civil Procedure Rules S. I 71- 1 stipulates that; 20

"Wh.ere ttuo or more suits are pending in the same Court in which tte same or similar questions of lau or fact are inuolued, the Court mag, either upon the application of one of the parties or of its outn motion, at its discretion, and upon such terms as maA seem fit -

a. order q consolidation of those suits; and 30

ha ⁷

b. direct that further proceedings in ang of the suits be staged until further order." (See the case of Stumberg & Anor Potgelter (1970) EA 323).

In the circumstances and in the interest of justice, avoidance of multiplicity of suits and the possibility of contradictory findings, I order that Civil Suit No.l6 of 2023 and Civil Suit No. 807 of 2023 be consolidated.

## Issue 2: What remedies are available?

In the premises, I find that the Applicant has raised triable issues that merit the granting of this application to appear and defend the suit. 10

I accordingly grant this application with the following orders:

- 1. The Applicant is hereby granted unconditional leave to appear and defend Civil Suit No. O8O7 of 2023. - 15 - 2. "fhe Applicant is ordered to file its Written Statement of Defence within fourteen (14) days from the date of this order. - 3. Civil Suit No. 16 of 2023 and Civil Suit No.807 of 2023 are hereby consolidated. - 4. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered this 24tt' day of October, 2O23.

Patien e T. E. Rubagumya

## JUDGE

## 24ltol2023

## Rulin read in Chambers:

lOam

24Lh October 2023

5 Counsel Patrick Mugisa holding brief for Counsel Frarcis Sebbowa for the Applicant.

There is no representative from the Applicant.

Counsel Gloria Aba:-uhanga for the Respondent.

Respondent is in Court.

Patience T. E. Rubagumya

JUDGE 24ltol2023 l0:20am

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