Sekuyenja v Njagala & Anor (Miscellaneous Application No. 435 of 2015) [2017] UGCommC 149 (7 July 2017)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[COMMERCIAL DIVISION]

MISCELLANEOUS APPLICATION No. 435 of 2015

(Arising Out Of Civil Suit No. 329 of 2015)

MICHEAL SEKUYENJA ::::::::::::::::::::::::::::::::::::APPLICANT/DEFENDANT

VERSUS

1. NJAGALA MOHAMED

2. KAYELIMA GENERAL HARDWARE LTD :::::::::: RESPONDENTS/ PLAINTIFFS

BEFORE: HON. MR. JUSTICE B. KANINAMURA

RULING

The applicant, Micheal Sekuyenja, brought this application under the provisions of Order 36 rules 3, 4 and Order 52 rules 1 and 2 of the Civil Procedure Rules S.1 71-1.

The applicant seeks orders for;

1. Unconditional leave to appear and defend in Civil Suit No. 329 of 2015.

2. Costs of this Application to be provided for.

The application is supported by the applicant’s affidavit dated 10^th June 2015. The respondent filed an affidavit in reply deponed by the respondent dated 6^th July 2015.

Briefly the facts upon which the main suit is based as laid out in the amended plaint are that the plaintiff/respondent demands UGX 127,675,000 /= and interest thereto at 10% arising from a contract for supply of building materials made on the 18^th day of July 2014 between the plaintiffs and the defendant/applicant. That the respondents entered into a Memorandum of Understanding with the applicant for the supply of building materials worth UGX 100,000,000/= on credit. The respondent supplied the building materials to the applicant who has since failed to pay UGX 127,675,000 as at 21/03/2015 being the cost of the building materials. Additionally, it is the plaintiff/respondent’s case that the defendant/applicant pledged his land at Kasubi Lubya Village as security and provided a copy of the land sale agreement. Despite the best efforts of the plaintiff to recover the stated amounts from the defendant, he refused and or neglected to pay. The respondents then filed Civil Suit No. 435 of 2015 under Order 36 and Order 52 of the CPR. The applicant now brings this application for unconditional leave to appear and defend that suit.

The respondents filed an affidavit in reply in which the 1^st respondent stated that his advocates thought it prudent to file an amended plaint which they did on 10^th June 2015 and duly served the applicant’s advocate on 12^th June 2015, and the advocate duly received the amended pleadings. He added that the applicant in effect never replied to the amended pleadings as required by Law.

The deponent further stated that the gist of the applicant’s application is that he never dealt with the 1^st respondent but the said explanation was rendered untenable, when the 2^nd respondent was brought in to the proceedings, since the 1^st respondent in the agreement acted on behalf of the 2^nd respondent.

He further stated that there is no reply in respect of the amended pleadings as required under the Law.

Counsel for the applicant submitted that Order 36 rule (3) of the CPR prescribes application for leave to appear and defend with leave of court. Counsel relied on the case of Maluku Interglobal Trade Agency Ltd Vs Bank of Uganda [1985] HCB 65 which considered conditions to be considered before leave to appear and defend is granted which include; a triable issue of fact or law and that the applicant has a good defence. Counsel submitted that whenever there is a genuine defence either in fact or in law, the defendant is entitled to unconditional leave to appear and defend. Counsel argued that the applicant has never received monies from the respondents or goods worth the said amount from the respondents and if allowed to defend himself, the respondents shall be tasked to produce delivery notes showing the applicant as beneficiary of any money and or goods from the respondents. In conclusion, Counsel submitted that there are triable issues for the consideration of court.

Counsel for the respondents submitted that the applicant’s application stems from the initial plaint and therefore there is no substantive application for leave to appear and defend pursuant to the amended plaint which was properly filed in court and served in time on the applicant. Counsel submitted further that the applicant seeks to delay the suit to the plaintiff’s detriment and prayed that this court finds it fit to dismiss the application with costs and grant judgment as prayed for in the summary suit. Counsel relied on a number of decisions among which is the case of Balinda Collins Vs Higenyi Ronald Misc Appl. 482/2013 where it was held that since it was the applicant who personally received the money and entered in agreement with the respondent he should bear the burden of repayment. Counsel argued that the applicant did not even attach a proposed written statement of defence and therefore did not prove that there are any triable issues. Counsel prayed that the application be dismissed and in the alternative conditional leave be granted on such conditions as court deems fit as was held in the case of Mulenga Christopher Vs Stanbic Bank Misc. Appl. 200/2013.

In the submissions in rejoinder, Counsel for the applicant submitted that the applicant filed this application for leave within the prescribed time by law and indeed served the respondent with the pleadings. Counsel added that by the time the respondent amended the plaint and served the applicant, the applicant had already taken a step by filing an application for leave to appear and defend and therefore any amendment had to be with leave of court. Counsel cited Order 6 rule 22 of the CPR which allows Court to disallow an amendment if it is satisfied that justice of the case requires it. Counsel also stated that it is not mandatory to attach a written statement of defence and it does not mean that there are no triable issues. Counsel relied on the decision of Sterling Travel & Tour Services Ltd & Anor Vs Millennium Travel & Tour services Ltd Misc Appl. No. 116 of 2013. Counsel prayed that the amendment be disallowed and the application be granted.

Decision of Court

The application was brought under Order 36 rule 3 & 4 of the CPR. This is a liquidated claim for UGX 127,675,000 /= which the applicant denies.

I will first address the concern raised by the applicant that the respondent amended the plaint without leave of court which contravened Order 6 rule 12 CPR. Counsel for respondent in response pointed to the fact that the applicant did not file a reply to the amended plaint. In the case of Ziriyo Edison & 2 others t/a St. Catherine Clinic Vs Kampala Capital City Authority & Kampala District Union of People with Disabilities Ltd Civil Suit No. 396 of 2012 where amendments were done without leave of court, court among others held that;

“Courts exist to adjudicate the real substance of disputes and to ensure that justice is administered without undue technicalities in the context of Article 126(2) (e) ….”

The rationale was that the objection does not go to the root of the case and it was overruled. I agree and, I hold similarly that the amendment does not go to the root of the case and will move on to consider the merits of the application.

This is an application for leave to appear and defend. The courts have laid down the conditions to be considered before leave to appear and defend the suit is granted. In the case of Kotetcha Vs Mohammed [2002] E.A 112 court held that where a suit was brought under summary procedure, the defendant is granted leave to appear and defend if he is able to show that he 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 requires taking into account to determine; or any other circumstance showing reasonable grounds of bonafide.

Counsel for the applicant argued that the applicant has never received monies from the respondents or goods worth the said amount from the respondents. That if allowed to defend himself, the respondents shall be tasked to produce delivery notes showing the applicant as beneficiary of any money and or goods from the respondents. In my view there is a dispute as to indebtedness which means that there is a triable issue at hand which requires full trial.

Accordingly, leave to appear and defend is granted to the applicant. The applicant shall file a defence within 14 days from the date of this ruling. The costs of this application shall be in the cause.

B. Kainamura

Judge

07.07.2017