[2025] UGCommC 119

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 0536 OF 2025 (ARISING OUT OF CIVIL SUIT NO. 157 OF 2024)**

# **WALUGEMBE WILLIAM:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

## **1. KATUMWA RONALD**

# **2. NAKIMERA JOYCE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

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

#### **RULING**

The applicants brought this application under section 98 of the Civil Procedure Act, Order 36 20 Rules 3 and 4, and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules S. I. 7l-1, as amended. The applicant seeks orders that he be granted unconditional leave to appear and defend *Civil Suit No. 0157 of 2024 Katumwa Ronald & Nakimera Joyce vs Walugembe William;* and that costs of the application be provided for.

25 The brief background to this application is that the respondents/plaintiffs, who are administrator and administratrix, respectively, of the estate of the late Nkata Wamala Christopher, filed a summary suit before this court seeking recovery of a liquidated amount of Ugx 120,000,000 (Uganda shillings one hundred and twenty million) being unpaid monies for purchase of land comprised in Kiguba Block 28 Plot 1268 at Makerere Bataka zone, measuring approximately 26 30 decimals. The parties entered an agreement of sale of the said land at a consideration of Ugx 180,000,000, out of which, the applicant only paid Ugx 60,000,000. That the applicant remained indebted to the respondents; an aspect which the applicant disputes, hence this application for a grant of leave to appear and defend *Civil Suit No. 0157/2024*.


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

The applicant was represented by M/s Rock Advocates; while the respondent was represented by M/s GM Kibirige & Co. Advocates. The parties were granted leave to file written submissions.

#### **Issue for determination**

10 The issue for determination is whether the applicant has disclosed a triable issue of fact or law thereby entitling him to a grant of leave to appear and defend *Civil Suit No. 0157 of 2024*.

#### **Submissions**

This application came up before court and counsel for both parties were given schedules to file 15 their respective written submissions. The applicant had been required to file their written submissions on 16th May 2025; the respondent's reply was to be filed on 21st May 2025; and the applicant's rejoinder, if any, was to be filed on 26th May 2025. However, the applicant did not comply with the requirement that written submissions be filed. It is only the respondent's reply that was filed on ECCMIS.

#### *Determination*

Applications for leave to appear and defend are premised on Order 36 rules 3 and 4 of the Civil Procedure Rules SI 71-1. 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 25 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 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.

30 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.

5 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* 10 *to summary judgment. The defendant is not bound to show a good defence on the 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."*

- 15 The applicant filed this application to be granted leave to appear and defend *Civil Suit No. 0157/2024*. The opportunity that the applicant had to demonstrate that there is a bona fide triable issue of fact or law through the filing of written submissions in support of his application. Court issued explicit schedules for the filing of written submissions that were not complied with by the applicant. In the case of *Susan Theophil Mbilinyi & Mrs. Susan Mbiliyi v. Ivanune Jeru Mbilinyi,* - 20 *Miscellaneous Civil Revision No. 03/2023*, court observed that written submission are a legal requirement for one to file before the Court after an order has been given. Court also observed that it is an alternative to oral submissions which would have been made on the date set by the court for hearing of a matter and it is not a matter of choice to file or not file because failure to file submissions as scheduled by the court is like refusing to speak or failure to make oral 25 submissions before a judicial officer when the matter is coming for hearing. Court further - observed that written submission are a way of prosecuting one's case.

The failure to file written submissions is, therefore, viewed as a failure to prosecute a matter, and is equated to non-appearance in court. In such an instance, court may dismiss such an application

- 30 for want of prosecution. This issue was considered in the case of *Byaruhanga Joseph vs Nalongo Elizabeth Wandera, HCCA No. 0062 of 2014,* where the appellant did not file their written submissions after court had given the parties a filing schedule; nor did he apply for extension of time to do so. Court held that the non-filing of submissions is tantamount to failure to take the necessary step to prosecute the appeal. Court stated that the inference in such an instance is that - 35 the appellant had lost interest in the appeal; and the appeal was dismissed with costs to the respondent.


- 5 In consideration of the foregoing authorities, I find that the applicant's failure to file written submissions is equivalent to failure to prosecute his application. It is, therefore, not possible for the applicant's wish to be granted leave to appear and defend *Civil Suit No. 0157/2024* to be considered due to the applicant's failure to prosecute his application. The applicant did not advance any reason for the non-filing of his written submissions, nor did he apply for extension - 10 of time to file the same. Order 17 rule 4 of the Civil Procedure Rules SI 71-1 as amended, provides that where there is failure by a party to perform any other act necessary to further the progress of the suit, including the filing of written submissions, for which time has been allowed, the court can proceed without the input of the defaulting party. In this instance, the defaulting party is the applicant who appears to have lost interest in his application. This application is, 15 accordingly, dismissed with costs to the respondents.

I so order.

20 *Dr. Ginamia Melody Ngwatu Ag. Judge 6 th June 2025*

25 *Ruling delivered via ECCMIS*