Wakilii

Isubikalu T a Laftaz Comedy Lounge v Nalongo Estate Limited (Miscellaneous Application No. 668 of 2019)

High Court · [2020] UGCOMMC 161 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appear and defend a summary suit for recovery of rent arrears arising from Civil Suit No. 505 of 2019
Decision
Applicant granted 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

The court granted the applicant unconditional leave to appear and defend the summary suit for rent arrears. The applicant raised triable issues of law and fact, including whether he was the proper party liable (as opposed to Fortius Limited) and whether the value of trade fixtures retained by the respondent could offset the claimed rent arrears. The court held that at this interlocutory stage it was not required to determine the merits but to assess whether the applicant had shown good cause for leave to defend, which he had.

Outcome

Applicant granted leave to appear and defend the underlying summary suit

Facts

The respondent landlord filed a summary suit under Order 36 seeking recovery of UGX 54,000,000 in rent arrears from the applicant, who operated a bar and restaurant business trading as Laftaz Comedy Lounge on premises at Plot 96-100 Kitante Road, Kampala. The respondent alleged the applicant had rented the premises since 2014 at UGX 4,000,000 monthly rent and had accumulated arrears. The applicant issued cheques totaling UGX 30,000,000 which were dishonored. The applicant filed this application for leave to appear and defend, raising a preliminary objection that he was not the proper party as the tenancy was with Fortius Limited, and asserting that the respondent had retained trade fixtures whose value exceeded the claimed arrears.

Issues

  1. Whether the applicant has raised a bona fide triable issue to warrant grant of leave to appear and defend the summary suit.
  2. Whether the applicant is the proper party liable for the rent arrears or whether liability rests with Fortius Limited.
  3. Whether the claim for rent arrears is a liquidated demand properly brought under Order 36 of the Civil Procedure Rules.
  4. Whether the applicant is entitled to compensation for trade fixtures retained by the respondent.

Orders

  • Application allowed.
  • Applicant granted unconditional leave to appear and defend Civil Suit No. 505 of 2019.
  • Costs in the cause.

Rules and key headnotes

Summary Procedure — Order 36 — Leave to Appear and Defend — Test for Grant
For an application for leave to appear and defend a summary suit to be granted, the applicant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. The court is not required to determine the merits of the suit at this stage but only to assess whether the defendant has shown good cause to be given leave to defend.
Summary Procedure — Order 36 — Purpose and Scope
Order 36 was enacted to facilitate expeditious disposal of cases involving debts and contracts of a commercial nature and to prevent defendants from presenting frivolous or vexatious defences to unreasonably prolong litigation. It is restricted to claims based on contract or land as specified in Order 36 rule 2.
Negotiable Instruments — Cheques — Cheques as Security
The practice among businessmen of issuing cheques as security with instructions that they should not be banked or negotiated should be strongly discouraged because it goes against the very nature of negotiable instruments. A cheque is payment in the form of cash and is not subject to the defence of lack of consideration.
Landlord and Tenant — Trade Fixtures — Tenant's Right to Remove
At common law, a tenant has the right to remove trade fixtures which were introduced to the land and affixed by the tenant and were particular to the tenant's business or trade. Parties may by contract vary this position, but if a landlord wishes to restrict the tenant's ordinary right to remove trade machinery or fixtures, he must do so in plain language.

Legislation cited (8)

Cases cited (16)

  • Salomon v Salomon & Co Ltd [1897] AC 22
  • Geoffrey Gatete & Another v William Kyobe (Supreme Court Civil Appeal No. 07 of 2005)
  • Uganda Micro Enterprises Association Ltd & 2 Ors v The Micro Finance Support Centre Ltd (High Court Miscellaneous Application No. 125 of 2005)
  • Rwabuganda Godfrey v Bitamisi Namuddu (Court of Appeal Civil Appeal No. 23 of 2009)
  • Kasule v Muhwezi [1992-1993] HCB 212
  • Maria Odido v Barclays Bank of Uganda Ltd (High Court Miscellaneous Application No. 645 of 2008)
  • Remco Ltd v Mistray Jadbra Ltd (2002) (1) EA
  • Spear House Limited v Barclays Bank Uganda Limited (High Court Civil Suit No. 236 of 2008)
  • Clemmer Steel Craft Technologies Inc. v Banor Meals Corp. 2009 ONCA 534 (CanLII)
  • Sterling Travel and Tour Services Limited v Millennium Travel Tours Services Limited (High Court Miscellaneous Application No. 116 of 2013)
  • Abdullah v Republic [1970] E. A 657
  • Kotecha v Mohammed [2002] 1 EA 112
  • Sembule Investments Limited v Uganda Baati Limited (High Court Miscellaneous Application No. 664 of 2009)
  • Dembe Trading Enterprises v Bidco (U) Ltd (High Court Miscellaneous Application No. 28 of 2008)
  • Post Bank v Abdu Ssozi (Supreme Court Civil Appeal No. 08 of 2015)
  • Makula Interglobal Trade Agency Ltd vs Bank of Uganda [1985] HCB 65

Full judgment

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

Isubikalu T a Laftaz Comedy Lounge v Nalongo Estate Limited (Miscellaneous Application No. 668 of 2019) [2020] UGCommC 161 (22 December 2020)
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.