THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO.1007 OF 2014
(ARISING OUT OF CIVIL SUIT 780 OF 2014)
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SEKUYENJA MICHAEL
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MICHAEL AND CHARITY INVESTMENTS.................................APPLICANT/DEFENDANTS
VERSUS
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RUKUNDO GENERAL SERVICES LTD
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ADA BETUBIZA NDURUMA .………… RESPONDENTS/PLAINTIFFS
BEFORE: HON. LADY JUSTICE FLAVIA SENOGA ANGLIN
RULING
This application was made under 0.36 and 0.52 C.P.R, moving court to grant the Applicant / Defendant unconditional leave to appear and defend Civil Suit No.780/2014.
Costs of the application were also applied for.
The application is supported by an affidavit deponed by the First Applicant which was read and relied upon at the hearing.
There is an affidavit in reply deponed by the Second Respondent; opposing the application.
When the application was called for hearing on 10.12.14, it was submitted by Counsel for the Applicant that there is a genuine defence as indicated in the copy of the intended written statement of defence.
The copy of the defence was tendered in then, with leave of court and Counsel for the Respondent did not object to it.
It was then contended that there are triable issues of law and fact as indicated in paragraphs 4 and 5 of the supporting affidavit and the draft written statement of defence paragraphs 3, 4, 5 and 7.
That the issues entitle the Applicant to leave to appear and defend to enable the Applicant present documents / evidence in defence of the Plaintiffs/Respondents claim, and the application should be granted.
Counsel for the Respondent opposed the application on the ground that there are only general denials which do not give sufficient facts and the few facts referred to are not supported by the affidavit in support.
Further that the application did not attach a draft written statement of defence. But as earlier pointed out the proposed defence was submitted to court without any objection by Counsel for the Respondent and he could not therefore turn around and claim that the proposed defence was not attached.
Referring to the affidavit in reply, Counsel argued that it is restricted to the application as presented and that the paragraphs 3, 4 and 5 thereof are not rebutted.
And that there is no proof that the sum claimed was paid, while Annexture E to plaint is an admission by Counsel for the Applicant admitting amount due.
The case of Sembule Investments Ltd vs. Uganda Baati Ltd Miscellaneous Application 664/2009 was relied upon as summarizing the application now before court.
Counsel then prayed that application be dismissed with costs and judgment entered as prayed.
In rejoinder, Counsel for the Applicant vehemently denied ever being served with the affidavit in reply to the application.
That the submissions of Counsel for the Respondent referring to Counsel for the Applicant are baseless as he was only doing his duty as Counsel. While proposed defence highlights the points of contention.
Also that proof of payment or facts thereof raise triable issues- which would give the Applicant a chance to produce the Second Applicant’s account statement showing the sum paid to First Respondent.
He reiterated earlier prayers.
For an application of this nature to be allowed, the Applicant /Defendant is obliged to show that “there are triable issues of fact or law. And even if it is one bonafide issue, it would entitle the Defendant to unconditional leave to defend”. – See Hasmani vs. Banque De Congo Belge (1938) 5 EACA and Standard Chartered Bank vs. Walker [1982] AUCR 937; Five Continents Ltd vs. Mugati Investments Ltd CA 306/2000 [2003] KLR 443 [2003] IEA1
It has been emphasized that “general or vague statements denying liability will not suffice and the defence must therefore be stated with sufficient particularity to appear genuine”. – Maluku Interglobal Agency Ltd vs. Bank of Uganda [1985] HCB 65. “And the court is obliged to study the grounds raised to ascertain whether they raise real issues or sham ones. And that if the facts alleged by the Applicant / Defendant were established, there would be a plausible defence”. As per the case of Abubaker Kato Kasule vs. T. Tumwebaze [1992 – 93] HCB 212.
Looking at the present application, it would have amounted to mere general details if the intended defence had not been put on record. However, with the intended defence, court finds that a number of issues are raised to wit:-
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Whether the Respondents have ever supplied the Applicants with any goods.
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Whether Oasis Technologies Ltd, which is not a party to the suit, can be used to make the claim.
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Whether the Respondents are directors in the said Oasis Company
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Whether Second Defendant paid off the sums claimed.
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Whether Second Defendant is a director in the First Respondent Company.
In the circumstances, court finds that genuine triable issues have been established and they can only be properly and effectively disposed of, if the Applicant is granted leave to defend so that further and better evidence can be adduced.
Court finds that the case of Sembule (Supra) is not applicable to the circumstances of the present case as the Hon. Judge in that case clearly stated that “no genuine or plausible triable issues were raised by the application” and hence her dismissal and entry of judgment for the plaintiff in the sum that was claimed together with costs.
As already pointed out, court has in the present case found genuine triable issues. The Respondents will not be prejudiced as they will be given a chance to be heard and to present their evidence.
The application is accordingly allowed. The Applicant to file a defence within ten days from the date of this ruling and serve it on the Respondent.
Costs will abide the outcome of the main suit.
FLAVIA SENOGA ANGLIN
JUDGE
15.12.14
