THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO.228 OF 2014
ABDUL MALIK MUGISA:::::::::::::::::::::::::::::::::::::::::::::APPLICANT
EQUITY BANK (U) LTD::::::::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO
This is an application for orders that the Applicant be granted unconditional leave to appear and defend the suit brought against him in HCCS No. 190 of 2014. It is brought under Order 36rr1, 4 and Order 52 rr1, 3 of the Civil Procedure Rules S.I. 71-1 and Section 98 of the Civil Procedure Act. The respondent had started the proceedings in the main suit against the Applicant and two others. The instant Applicant filed application for unconditional leave to appear and defend alone. The others have not bothered. He seeks also for the costs of the Application to be provided.
The Application is based on four grounds;
That the Applicant is not indebted to the respondent in the sum claimed
That the Applicant has a good and meritorious defence to the suit
That there are triable issues which subsist between the Applicant and the respondent
That I was in the interest of justice that this Application be granted
This Application is supported by an Affidavit sworn by the Applicant dated the 3rd day of April 2014 which is on record and the Applicant prayed that it be read together with the Application.
When this matter came for hearing on the 8th September 2014, none of parties appeared in court but in the interest of justice this Honourable Court directed that parties herein file written submissions to enable this Honorable Court conclude the matter. On record is the written submission of the Applicant only. The respondent never made any reply. The Application with its grounds and the Affidavit in support and the submission are considered by this Honourable court in coming up with this ruling.
Two issues were formed by this Honourable Court to settle the matter and they are;
Whether the Applicants has a defense to the suit brought by the Respondent
Whether the Applicant is entitled to the remedies sought.
Whether the Applicant has a defense to the suit brought by the Respondent:
This Application is brought under Order 36 rule 3 and 8 of the Civil Procedure Rules SI 71-1 which require a Defendant against whom a summary suit has been filed to seek leave of court to appear and defend a suit. The rules do not give ground upon which such leave must be sought but over the years the courts have ruled that a Defendant in the least must show a prima facie defence to the claim brought against it before leave to defend may be granted. Indeed Yorokamu Bamwine, J (as he then was) held in the case of Uganda Micro Enterprises Association Ltd and Another versus The Micro Finance Support Centre Ltd HCMA 125 of 2005 arising out of HCCS 107/2004 that where the Applicant shows reasonable ground in a defence to the claim of the plaintiff established by bonafide triable issue of fact or law then Plaintiff would not be entitled to a summary judgment. In coming to this conclusion he had taken cognizance of the decision in Makula Interglobal Trade Agency Ltd versus Bank of Uganda  HCB 65 where similar sentiments were held with further holding that where a defence is allowed on merits , it does not mean that it is a successful defence. The said court went further to quote Sheridan, J in the case of Patel versus E.A. Cargo Handling Services Ltd  EA 75 at page 76 held that a prima facie successful defence means that the Defendant had raised ‘triable issue’ (and not a sham) and which issues should therefore go for trial for trial.
Relating the above positions to the instant matter, I note that the Applicant in Paragraphs 6, 7, 8 and 9 his Affidavit in support of this Application avers that he did not sign, execute or witness the alleged deed of personal guarantee nor that he was indebted to the Respondent/Plaintiff. . He further states that he has never met the Respondents Collection Manager, a Mr. Makumbi Rogers. This is a clear defence of non est factum.
Indeed in paragraph 9 of the same affidavit in support, the Applicant invites this Honorable Court to take cognizance of his intended written statement of defence which avers that the purported signature stated to have been made by Applicant/Defendant on the documents tendered in by the Respondent were a forgery and that he intended to adduce the evidence of a handwriting expert to prove the same. The Applicant also intend to put the Respondent/ Plaintiff to strict proof as to the alleged demand for the money owed and the claim of Shs.77, 468,000/=.
Under paragraph 10 of the Applicant’s affidavit, the Applicant seeks this courts intervention on equitable grounds to allow this application.
I have considered the submission made in regards to this Application. It would seem to me that when the affidavit in support of it and the proposed defence are taken into account, together with the authorities cited above, it is clear to me that the Applicant has raised triable issues which ought to be considered.
By virtue of Section 98 of the Civil Procedure Act which grants this Honorable Court with the unfettered discretion to make such orders as are necessary for the ends of justice to be met and to finally deal with the matter in controversy between the parties and so by allowing this application, I find that the grant of this Application would not only serve the ends of justice to both parties but would also finally dispose of the matter in controversy were it to determine the real issues at stake.
In the premises I would allow the grant of this Application as prayed
Whether the Applicant is entitled to the remedies sought:
The Applicant among others prayed that the costs be provided. As was held in the case of Gulaballi Ushitlani versus Kampala Pharmaceuticals Ltd HCCS No.6 of 1998 costs are in the discretion of court and ordinarily follow the event.
The Applicant humbly prays that that if this Honourable court were to grant the prayers sought in the application it should also grant costs to the Applicant since the Applicant claims to know nothing in regards to the alleged loan as can be seen in his paragraphs 6, 7, and 8 of his affidavit in support of this Application with the added submission that the Respondent’s suit having made him incur legal costs as the Respondent denied him audience to its premises to have this matter amicably settled.
In the earlier issue, I have allowed this Application on the basis that triable issues have been raised and that it is safer to have the real dispute between the parties finally tried and settled. Having said so and having noted as a fact that this matter is yet to be concluded, I would think that the issue of costs should await the determination of the main suit so that whosoever is found responsible for having made the other incur costs would then be properly ordered to meet the entire costs of the litigation between the instant parties.
In that respect, I would order that the cost in this matter would abide the conclusion of the main suit in any event.
In conclusion and having discussed and made appropriate findings in the two issues discussed above, I proceed to make the following orders;
This Application is allowed and the Applicant is directed to file his defence within the days provided for by law
The costs of this Application to abide the conclusion of the main suit.
I do so order accordingly.
Henry Peter Adonyo
26th September, 2014