Wakilii

EDCO v Serunjogi (Miscellaneous Application No. 391 of 2010)

High Court · [2011] UGCOMMC 2001 · 2011 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to file a defence to a summary judgment claim, arising from Civil Suit No. 208 of 2010
Decision
Leave to defend granted conditionally; matter to proceed to full hearing with Evarist Turyakira joined as a party

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that triable issues of fact existed concerning the date of the commission agreement and whether the respondents introduced the buyer to the applicant. A discrepancy between the pleaded date (23 March 2010) and the date alleged in affidavits (26 February 2010) could not be resolved at the summary judgment stage without determining the merits. The court granted leave to defend on condition that Evarist Turyakira be joined as a party to the main suit, as he had been paid commission and played a role in introducing the buyer.

Outcome

Leave to defend granted conditionally; matter to proceed to full hearing with Evarist Turyakira joined as a party

Facts

EDCO Limited sold land comprised in Busiro Block 452 Plots 13 and 27 to Centum Investment Company Limited through Pearl Marina Estates Ltd. The respondents Peter Serunjogi and Noah Wasige claimed brokerage fees of US$ 267,500 under a commission agreement. EDCO alleged the commission agreement was dated 23 March 2010, after it had already executed a memorandum of understanding with the buyer on 3 March 2010, and thus the respondents did not introduce the buyer. The respondents contended that the commission agreement was executed on 26 February 2010, before the memorandum of understanding, and that the 23 March date was an error. Another broker, Evarist Turyakira, had been paid and claimed to have introduced the buyer jointly with the second respondent. Faith Nassali, lawyer for Centum Investment, averred in her affidavit that the respondents introduced her to the land and to Turyakira.

Issues

  1. Whether the applicant raised triable issues of fact that warranted the grant of leave to file a defence to a summary judgment application.
  2. Whether the commission agreement relied upon by the respondents was executed on 26 February 2010 or 23 March 2010.
  3. Whether the respondents introduced and sourced the buyer for the applicant's property.
  4. Whether conditional or unconditional leave to defend should be granted.

Orders

  • Leave to appear and defend the suit is granted.
  • Mr. Evarist Turyakira shall be made a party to the main suit.
  • The defendant shall file its defence within seven days.
  • Costs shall abide the final outcome of the main suit.

Rules and key headnotes

Civil Procedure — Summary Judgment — Leave to Defend — Test for Granting Leave
In an application for leave to defend a summary judgment claim, the defendant need only prove that there are arguable points of fact or law that merit judicial consideration; the defendant is not required to show at this stage that he has a good defence on the merits.
Civil Procedure — Summary Judgment — Factual Disputes — Resolution at Summary Judgment Stage
Where the plaintiff's pleaded facts are contradicted by the defendant's affidavit evidence, creating a triable issue of fact, the court cannot determine those facts at the summary judgment stage; to do so would be to decide the suit on its merits without a full hearing.
Civil Procedure — Summary Judgment — Conditions on Leave to Defend — Joinder of Necessary Parties
The court may grant leave to defend on condition that a third party whose evidence is central to the triable issues be joined to the suit, where such joinder is necessary for the truth of the transactions to be properly established.

Legislation cited (5)

Cases cited (4)

  • Maluku Trade Agency v Bank of Uganda (1985 HCB 65)
  • Kundanlal Restaurant v Devshi & Company (Civil Appeal No. 76 of 1951)
  • Kasule v Muhwezi ([1992-1993] HCB 212)
  • Kundanlal Restaurant v Devshi & Company ((1952) EACA 77)

Full judgment

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

EDCO v Serunjogi (Miscellaneous Application No. 391 of 2010) [2011] UGCommC 2001 (8 April 2011)
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.