Wakilii

Combined Building Co. Limited v Mukasa & 3 Others (Civil Suit 45 of 1994)

High Court · [1994] UGHC 63 · 1994 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion under Order 33 Rules 3 and 4 of the Civil Procedure Rules for unconditional leave to defend a suit for recovery of rent arrears and forfeiture
Decision
Application for leave to defend allowed with condition to pay rent arrears

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for leave to defend allowed despite defective affidavits. Court held that where improper summons (summons to enter appearance instead of Form 4) was issued in summary proceedings, and evidence suggested the property was under management of Departed Asians Property Custodian Board following 1972 Asian expulsion, triable issues arose warranting conditional leave to defend. Applicant ordered to pay rent arrears before filing Written Statement of Defence within ten days.

Outcome

Application for leave to defend allowed with condition to pay rent arrears

Facts

The plaintiffs/respondents instituted a suit by summary procedure to recover rent arrears since 1975 amounting to Shs. 20,000,000/= and sought forfeiture of lease against the defendant/applicant Combined Building Co. Ltd. The defendant applied under Order 33 Rules 3 and 4 for unconditional leave to defend. The application was supported by affidavits of Mohamed Allibhai (sworn 12 May 1994) and Mrs. Ruth Namirembe-Olijo of Departed Asians Property Custodian Board (sworn 13 May 1994). The respondents opposed, arguing the affidavits were defective: Allibhai's Power of Attorney was limited to different premises, and Namirembe's affidavit was not mentioned in the Notice of Motion and allegedly not served. The court found both affidavits defective but noted that improper summons (summons to enter appearance instead of Form 4) had been issued, and evidence suggested the property was managed by Departed Asians Property Custodian Board following the 1972 expulsion of Asians, raising triable issues about whether non-payment was beyond the defendant's control.

Issues

  1. Whether the application for leave to defend should be granted where supporting affidavits are defective.
  2. Whether improper summons in a summary procedure affects the applicant's right to defend.
  3. Whether circumstances beyond the defendant's control (management by Departed Asians Property Custodian Board following 1972 expulsion of Asians) constitute triable issues.

Orders

  • Application allowed.
  • Applicant to pay arrears of rent before filing Written Statement of Defence.
  • Applicant to file Written Statement of Defence within ten (10) days from date of order.

Rules and key headnotes

Civil Procedure — Summary Procedure — Affidavits in Support — Power of Attorney Limited to Different Property
An affidavit sworn in support of an application by a person acting under a Power of Attorney is valueless where the Power of Attorney is limited to management of different premises and does not extend to the suit properties.
Civil Procedure — Summary Procedure — Affidavits — Service and Amendment of Notice of Motion
Where a supplementary affidavit is not mentioned in the Notice of Motion, has no registry stamp, and service is disputed, the court will ignore it unless the applicant seeks leave to amend the Notice of Motion and effect proper service.
Civil Procedure — Summary Procedure — Improper Summons — Effect on Defendant's Right to Defend
Where improper summons (summons to enter appearance instead of the appropriate Form 4 summons under Order 33) is issued in summary proceedings, the plaintiff's counsel bears some blame for the irregularity, and the court may allow the defendant leave to defend.
Land & Property — Landlord and Tenant — Forfeiture — Circumstances Beyond Tenant's Control
Where evidence suggests that non-payment of rent was caused by circumstances beyond the tenant's control, including management of the property by the Departed Asians Property Custodian Board following the 1972 expulsion of Asians, triable issues arise warranting leave to defend.

Legislation cited (2)

Full judgment

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Combined Building Co. Limited v Mukasa & 3 Others (Civil Suit 45 of 1994) [1994] UGHC 63 (22 June 1994)
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.