Wakilii

Gallad Abi Samatar v Mohamud Abdule Mohammed (Civil Miscellaneous Application No. 13 of 2020)

High Court · [2021] UGCOMMC 118 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appear and defend a summary suit arising from Civil Suit No. 1030 of 2019
Decision
Application dismissed; judgment and decree entered for the respondent for USD 14,850

Observed later treatment

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Holding

Held that an applicant seeking leave to defend a summary suit must disclose sufficient grounds of defence and demonstrate a bona fide triable issue of law or fact. Where the applicant admits the existence of a joint business arrangement, the pooling of funds, the failure of the venture, and an undertaking to indemnify, but disputes only the quantum without evidential basis and alleges forgery without supporting material, no plausible defence is disclosed. The application for leave to defend was dismissed and judgment entered for the respondent for the adjusted outstanding balance.

Outcome

Application dismissed; judgment and decree entered for the respondent for USD 14,850

Facts

The respondent and applicant entered into a joint business venture for importation of petroleum consignments through Gogas (U) Ltd. The parties pooled USD 66,000 for the venture. The business failed after two years. On 21 December 2017, the parties executed a deed of acknowledgment in which the applicant acknowledged indebtedness of USD 46,000 to the respondent, payable in five instalments secured by postdated cheques. The applicant paid the first three instalments totalling USD 20,000, then made two further payments totalling USD 5,150, leaving a balance of USD 20,850. The respondent issued a demand notice on 29 November 2019 and filed a summary suit for recovery. After commencement of the suit, the applicant paid a further USD 6,000, reducing the outstanding balance to USD 14,850. The applicant then applied for leave to defend, denying execution of the deed and disputing the quantum owed.

Issues

  1. Whether the application discloses any triable issues as to justify grant of leave to defend the main suit.

Orders

  • The Application for leave to appear and defend the main suit vide Civil Suit No. 1030 of 2019 is dismissed.
  • Judgment and decree are entered in the main suit for the Plaintiff/Respondent against the Defendant/Applicant for recovery of the sum of USD 14,850.
  • The costs of the application and of the main suit shall be paid by the Defendant/Applicant to the Plaintiff/Respondent.

Rules and key headnotes

Civil Procedure — Summary Suits — Leave to Defend — Test for Grant of Leave
Under Order 36 Rule 4 of the Civil Procedure Rules, unconditional leave to appear and defend a summary suit 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 which requires taking an account, or any other circumstances showing reasonable grounds of a bona fide defence.
Civil Procedure — Summary Suits — Leave to Defend — Burden on Applicant
An applicant for leave to defend a summary suit must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. The applicant is not bound to 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. The court shall not enter upon the trial of issues disclosed at this stage.
Civil Procedure — Summary Suits — Leave to Defend — Disclosure Requirements
In an application for leave to appear and defend a summary suit, there must be sufficient disclosure by the applicant of the nature and grounds of defence and the facts upon which it is founded. The defence so disclosed must be both bona fide and good in law. Where the court is satisfied that this threshold has been crossed, it is bound to grant unconditional leave. Where the court is in doubt whether the proposed defence is made in good faith, it may grant conditional leave.
Civil Procedure — Summary Suits — Forgery Allegations — Evidential Burden
A bare allegation of forgery without any material evidence pointing to such a conclusion cannot constitute a ground of plausible defence in an application for leave to defend a summary suit. Where an applicant alleges that a deed of acknowledgment is a forgery but produces no evidence capable of establishing forgery and does not deny issuing related postdated cheques bearing signatures visually similar to those on the deed, no prima facie case of forgery is established.
Civil Procedure — Summary Suits — Quantum Disputes — Evidential Basis Required
Where an applicant disputes the quantum of a debt claimed in a summary suit but has no evidential basis for the alternative amount claimed, and the respondent's claim is supported by a deed of acknowledgment which the applicant has not impeached, no plausible dispute over quantum capable of raising a bona fide triable issue is disclosed.
Civil Procedure — Summary Suits — Judgment on Dismissal of Leave Application — Adjustment of Quantum
Where an application for leave to defend a summary suit is dismissed and judgment is entered under Order 36 Rule 5 of the Civil Procedure Rules, the court may adjust the quantum claimed in the plaint downward to reflect payments made by the defendant after commencement of the suit, entering judgment for the adjusted outstanding balance.

Legislation cited (2)

Cases cited (4)

  • M.M.K Engineering v Mantrust Uganda Ltd (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 (Miscellaneous Application No. 134 of 2016)

Full judgment

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

Gallad Abi Samatar v Mohamud Abdule Mohammed (Civil Miscellaneous Application No. 13 of 2020) [2021] UGCommC 118 (1 November 2021)
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.