THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION 093/2014
Arising from Civil Suit 81/2014
HAJJI ABDUL KASAI:::::::::::::::::::::::::::::::::::::PLAINTIFF/RESPONDENT
VERSUS
JOVAN SERWANGA & ORS::::::::::::::::::::::::::DEFENDANT/ APPLICANT
BEFORE THE HON. JUSTICE HENRY PETER ADONYO
RULING
The Applicant brought this application under the provisions of Order 36 Rules 3(1), 4, Order 52 Rule 1 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act. He sought for orders that he be granted unconditional leave to appear and defend Civil Suit No. 308 of 2013 on merit and that costs of the application be provided for.
The application was supported by the affidavit of Mr Jovan Serwanga, the 1st Defendant and a partner in Waterford Nursery and Primary School.
In summary, the applicant stated that on 10th November 2011, he entered into a sale agreement with the Respondent in which he purchased land comprised in Kibuga Block 14 Plots 410 and 833 at Najjanakumbi at a total purchase price of Uganda Shillings Two billion Six hundred Million only (Ug. Shs. 2,600,000,000/=).
That on purchase Uganda Shillings Two Hundred Million Only ( Ug. Shs. 200,000,000/=) was made to the Respondent/Plaintiff and subsequently other payments were made.
Further that the balance now due and owing to the Respondent is Uganda Shillings One Billion One hundred Forty four Million Twenty Thousand Only (Ug. Shs 1,144,020,000/=) contrary to what is claimed in the plaint with the interest being claimed as being vague and inconclusive and that the suit was premature as the agreement between the parties run up to the end of 2016.
In reply through an affidavit deponed by the Respondent, one Hajji Abdul Kasai, it is stated that both parties entered into an agreement in which it was agreed that if there was default, there would be payment of a stipulated sum without necessarily proving actual loss suffered and that since the Applicant did not dispute owing Uganda Shillings One Billion One hundred Forty four Million Twenty Thousand Only (Ug. Shs 1,144,020,000/=), judgment on admission ought to be entered on this said undisputed sum. Further that the Applicant has not demonstrated a plausible defence nor shown triable issues.
Upon carefully consideration of the affidavit in support of this application together with its attachments and the affidavit in reply along with the written submissions of Counsel for both parties, I have this position I take in regards to this Application.
The rationale of Order 36 of the Civil Procedure Rules is to enable a plaintiff with a liquidated claim, to which there is clearly no good defense, to obtain a quick and summary judgment without being unnecessarily kept from what is due to him by the delaying tactics of the defendant.
See: Zola & Another versus Ralli Brothers Ltd. & Another [1969] EA 691.
Also it has since been held through several authorities that before leave to appear and defend a suit is granted, a defendant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. And when there is a reasonable ground of defence to the claim, then the plaintiff would not be entitled to summary judgment.
A defendant is not bound to show a good defence on the merits but must satisfy court that there is an issue or question in dispute which ought to be tried and the court would not enter upon the trial of that issue disclosed, at this stage of an application.
See: Maluku Interglobal Trade Agency Ltd. v. Bank of Uganda [1985] HCB 65.
Therefore, taking into account the positions of the law discussed above, it is in my view that the question that has to be decided in this application is whether the Applicant’s, through his affidavit raises a good defence to the suit and therefore discloses bona fide triable issues for the determination of the court at a later stage through full trial.
It is true that the Applicant admitted that he owed the Respondent Uganda Shillings One Billion One hundred Forty four Million Twenty Thousand Only (Ug. Shs 1,144,020,000/=) but that the agreement runs up to the end of 2016 when the entire amount would be due then. However, from the written submissions by Counsel for the Applicant it is shown that the Applicant had reduced the balance due to the Plaintiff to Uganda Shillings One Billion Fifty Four Million Twenty Thousand Only (Ug. Shs. 1,054,020,000/=) and not Uganda Shillings One Billion One hundred Forty four Million Twenty Thousand Only (Ug. Shs 1,144,020,000/=) as erroneously stated in his affidavit.
Order 13 Rule 6 of the Civil Procedure Rules provides:
Any party may at any stage of a suit where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or orders as upon the admission he/she may be entitled to, without waiting for the determination of any other question.
For the purposes of this section, admissions have to be plain and obvious on its face without requiring any effort to ascertain its meaning.
A look at the Memorandum of Understanding executed in May 2013 which is annexed to the Notice of Motion, Paragraph 3 thereof is to the effect that once the balance of Uganda Shillings Two billion Four Hundred Million only (Ug. Shs. 2,400,000,000/=) is not paid within a period of two years from the date of execution, the property held by the Respondent would be sold to recover the outstanding sums.
In the instant case, the Applicant admits that he is indebted to the Respondent but that the amounts are not due which is corroborated by the Memorandum of Understanding to which the Respondent was a party. Therefore triable issues are shown.
I am inclined to agree that the suit raises substantial points of law and fact that can only be resolved with evidence. My conclusion is that the applicant's fate should not in the circumstances be decided without a hearing.
For those reasons, it is my considered opinion that the applicant has met the test required for the grant of an application of this nature and I would accordingly allow it on condition that the applicant would file a written statement of defence within 10 (ten) days from the date of this order. I would also order that the costs of this application be in the cause.
ORDER
-
This Application is allowed and the Applicant is directed to file a written statement of defence within ten (10) days from the date of this order.
-
The Application is allowed with costs to be in the cause.
HENRY PETER ADONYO
JUDGE
5th June 2014
