Wakilii

Asiimwe Philemon v Setengeri Clever (Miscellaneous Application 110 of 2023)

High Court · [2024] UGHC 112 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appear and defend arising from a summary suit for breach of contract
Decision
Applicant granted unconditional leave to appear and defend the underlying summary suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the application for leave to appear and defend was filed within time when excluded days and the Interpretation Act provisions on computation of time are properly applied. Further held that where a defendant demonstrates triable issues of fact or law concerning material disclosure in a lease agreement and third party claims to the leased property, unconditional leave to appear and defend must be granted to ensure a fair determination on the merits.

Outcome

Applicant granted unconditional leave to appear and defend the underlying summary suit

Facts

The respondent filed a summary suit seeking to recover UGX 60,000,000 for breach of a lease agreement dated 21 January 2022 concerning land at Kabale Trading Centre developed with a petrol station. The respondent alleged that after entering the lease, third party claims arose from the family of the late Haji Yahaya who claimed part of the land, and that the applicant had failed to disclose these interests. The applicant contended that he had introduced the respondent to the landowners including the family of the late Yahaya and Barimbya Mpuga, that the respondent conducted a physical inspection, took possession, and has been operating the petrol station to date. The applicant alleged the lease agreement attached to the plaint was forged and altered by the respondent. The applicant filed this application for leave to appear and defend outside what the respondent claimed was the statutory 10-day period.

Issues

  1. Whether the application was filed out of time and thus defective.
  2. Whether the applicant should be granted leave to appear and defend civil suit no. 056 of 2023.

Orders

  • The applicant is granted unconditional leave to appear and defend Civil Suit No. 056 of 2023.
  • The defendant shall file his written statement of defense within 10 days from the date of delivery of this ruling.
  • The costs of this application shall abide the outcome of the Civil Suit No. 056 of 2023.

Rules and key headnotes

Civil Procedure — Summary Suits — Computation of Time — Excluded Days
In computing the 10-day period for filing an application for leave to appear and defend under Order 36 rule 3(2) of the Civil Procedure Rules, section 34 of the Interpretation Act and Order 51 rule 3 of the Civil Procedure Rules apply such that Saturdays, Sundays and public holidays are excluded days, and where the last day falls on an excluded day, the period extends to the next following day not being an excluded day.
Civil Procedure — Summary Suits — Leave to Appear and Defend — Test for Granting Leave
Unconditional leave to appear and defend will be granted where the applicant shows a good defence on the merits, or that a difficult point of law is involved, or that there is a dispute which ought to be tried, or a real dispute as to the amount claimed, or any other circumstances showing reasonable grounds of a bona fide defence. The defendant need not show a good defence on the merits but must satisfy the court that there is an issue or question in dispute which ought to be tried.
Contract Law — Breach of Contract — Material Non-Disclosure in Lease Agreements — Triable Issues
Where a lessor contends that he disclosed third party interests in leased property to the lessee and the lessee denies such disclosure, and there are conflicting affidavits as to whether proper introduction to affected parties occurred, such disputes constitute triable issues of fact requiring a full hearing on the merits rather than summary determination.

Legislation cited (9)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.35 r.1
  • Civil Procedure Rules O.35 r.3
  • Civil Procedure Rules O.36 r.2
  • Civil Procedure Rules O.36 r.3(1)
  • Civil Procedure Rules O.36 r.3(2)
  • Civil Procedure Rules O.36 r.4
  • Civil Procedure Rules O.51 r.3
  • Interpretation Act s.34

Cases cited (9)

  • William Kyobe v Geoffrey Gatete & Angella Maria Nakigonya (Supreme Court Miscellaneous Application No. 10 of 2005)
  • Post Bank (U) Ltd v William Bangye (SCCA No. 301 of 2018)
  • Bunjo v KCB (Uganda) Ltd (Miscellaneous Application No. 174 of 2014)
  • Roko Construction Ltd v Ruhweza Transportation & Construction (U) Ltd (Miscellaneous Application No. 831 of 2020)
  • M.M.K Engineering v Mantrust Uganda Ltd (High Court Miscellaneous Application No. 128 of 2012)
  • Bhaker Kotecha v Adam Muhammed [2002] 1 EA 112
  • Maluku Interglobal Trade Agency v Bank of Uganda [1985] HCB 65
  • Children of Africa v Sarick Construction Ltd (High Court Miscellaneous Application No. 134 of 2016)
  • Magric Water General Hardware Ltd v Abasi Balinda Transporters Ltd (Miscellaneous Application No. 067 of 2021)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Asiimwe Philemon v Setengeri Clever (Miscellaneous Application 110 of 2023) [2024] UGHC 112 (25 March 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.