Wakilii

Kalema Edward v Amdan Khan (Miscellaneous Application 826 of 2015)

High Court · [2016] UGCOMMC 300 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to appear and defend arising from a summary suit for dishonoured cheques
Decision
Applicant granted leave to defend; matter to proceed to full trial

Observed later treatment

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Holding

The court granted the applicant unconditional leave to appear and defend, holding that the applicant raised triable issues regarding alleged breach of a Memorandum of Understanding, whether the cheques issued were intended as refunds or guarantees for future payment, discrepancies in amounts claimed, and whether other parties to the MOU should be jointly and severally liable. The court found contradictions in both parties' claims requiring full investigation at trial.

Outcome

Applicant granted leave to defend; matter to proceed to full trial

Facts

On 15 July 2014, the applicant and three others entered into a Memorandum of Understanding and supplementary agreement with the respondent. The respondent invested UGX 820,000,000 and a further UGX 310,000,000 for the purpose of processing and acquiring a certificate of title in the names of Kayunga Sugar Works Ltd for land in Kayunga. The applicant acknowledged receipt by issuing post-dated cheques to the respondent. The process was to be completed in 90 days according to the respondent, though the applicant disputed any explicit time limit. The title was not delivered. The respondent presented the cheques for payment; they were dishonoured. The respondent brought a summary suit claiming breach of contract and seeking payment on the dishonoured cheques totalling UGX 1,363,175,000. The applicant applied for leave to defend, contending that he had substantially performed his obligations, that the process was in final stages, that delays were beyond his control, and that the cheques were issued as guarantees for payment upon receipt of purchase price from Kayunga Sugar Works Ltd, not as refunds.

Issues

  1. Whether the applicant should be granted unconditional leave to appear and defend the summary suit.
  2. Whether the applicant has raised triable issues of fact or law requiring full investigation at trial.
  3. Whether the applicant has demonstrated a plausible defence to the respondent's claim for dishonoured cheques.

Orders

  • Application allowed.
  • Applicant granted unconditional leave to appear and defend Civil Suit No. 602 of 2015.
  • Applicant to file written statement of defence within 15 days from the date of the ruling.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Summary Procedure — Leave to Defend — Test for Granting Leave
An applicant seeking leave to defend a summary suit must show the court that there is an issue or question of fact or law in dispute which ought to be tried. Where the defendant shows such a state of facts as leads to the inference that at trial he may be able to establish a defence to the plaintiff's claim, he ought not to be debarred of all power to defeat the demand made upon him. Whenever there is a genuine defence either in fact or in law, the defendant is entitled to unconditional leave to defend.
Civil Procedure — Summary Procedure — Triable Issues — Contradictions in Claims
Where there are contradictions in the claims of both parties regarding the nature of obligations under a contract, amounts owed, purpose of security instruments issued, and liability of multiple parties to an agreement, such contradictions constitute triable issues requiring investigation by the court at full trial rather than summary determination.
Contract Law — Breach of Contract — Performance and Time Limits
Where parties dispute whether an explicit time limit existed in a contract for performance of obligations, and where an applicant contends that delays in performance were due to factors beyond his control while showing that the process contracted for is in final stages, such disputes raise genuine issues requiring full trial to determine whether breach has occurred.

Legislation cited (3)

Cases cited (11)

  • British American Tobacco (U) Ltd v Pioneer Construction Ltd (Miscellaneous Application No. 452 of 2008)
  • Geoffrey Gatete and Anor V William Kyobe (2000) HCB Vol. 1
  • Republic Motors Ltd Vs Atlantic Decoration (1982) HCB 104
  • Souza Figuerido & Co. Ltd Vs. Moorings Hotel Co. Ltd (1959) EA 426
  • Islamic University of Uganda v Efraim and Another (High Court Civil Appeal No. 62 of 2014)
  • Ddembe Trading Enterprises Ltd v Bidco (U) Ltd (Miscellaneous Application No. 152 of 2008)
  • Aldib El Hinnawi V Yacoub Famhi Abdul El Huda [1936] 1 All ER 637
  • Turyamureeba Kezekia v Justus Rugyegye (Miscellaneous Application No. 518 of 2013)
  • M.M.K Engineering v Mantrust Uganda Ltd (Miscellaneous Application No. 128 of 2012)
  • Peter Bibagamba v Fulgence Mungereza and Nile Mining Limited (Miscellaneous Application No. 103 of 2012)
  • Kotecha Vs Mohammed, [2002] EA 112

Full judgment

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

Kalema Edward v Amdan Khan (Miscellaneous Application 826 of 2015) [2016] UGCommC 300 (21 October 2016)
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.