Wakilii

Katamba v Katende (Civil Appeal 1 of 2021)

High Court · [2023] UGHCCD 268 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from dismissal of application for leave to appear and defend in a summary suit
Decision
Appeal dismissed; judgment of the lower court for UGX 14,000,000 with 8% interest and costs maintained

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the trial Magistrate correctly refused leave to appear and defend in a summary suit. The appellant failed to adduce evidence supporting his claim that the agreement was a loan rather than a sale of land, and failed to prove alleged repayments. The court found no triable issues raised and no illegality sanctioned by the lower court.

Outcome

Appeal dismissed; judgment of the lower court for UGX 14,000,000 with 8% interest and costs maintained

Facts

The respondent filed a summary suit to recover UGX 14,000,000, being the balance of UGX 20,000,000 paid under a sale agreement dated 29 August 2019 for land. The respondent discovered the appellant was not the owner of the land and could not take possession. The appellant repaid UGX 6,000,000 and issued a cheque for the balance of UGX 14,000,000, which he later asked the respondent not to cash. The appellant applied for leave to appear and defend, claiming the transaction was a loan of UGX 12,000,000 at 25% interest, which he had fully repaid. The trial Magistrate dismissed the application for leave, finding no triable issues, and entered judgment for the respondent. The appellant appealed.

Issues

  1. Whether the trial Magistrate erred in failing to determine whether the agreement was a loan agreement or a sale agreement.
  2. Whether the trial Magistrate erred in ignoring evidence that money had been paid at the LC1.
  3. Whether the trial Magistrate sanctioned an illegality by upholding a sales agreement when the transaction was allegedly a loan agreement.

Orders

  • Appeal dismissed.
  • Ruling of the lower Court maintained.
  • Appellant ordered to pay costs in this Court and the one below.

Rules and key headnotes

Summary Suits — Leave to Appear and Defend — Requirements
Before leave to appear and defend is granted in a summary suit under Order 36 of the Civil Procedure Rules, the defendant must show by affidavit or otherwise that there is a bona fide triable issue of fact or law. The defendant 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.
Burden of Proof — Affidavit Evidence — Annexures
Annexures are part of the affidavit and are pivotal to applications. Where an affidavit purports to attach documentary evidence but the actual documents are not attached, the averments relying on those documents constitute wild allegations unsupported by evidence and cannot discharge the burden of proof.
Burden of Proof — Proof of Payment
A party asserting payment of money bears the burden of proving that fact. Mere averments of payment without receipts, acknowledgements, or corroborating evidence do not discharge this burden. No court can make orders on mere assertions.
Illegal Contracts — Unjust Enrichment
A party who executes a contract, receives consideration, and fails to deliver on his end of the contract cannot raise the ground of illegality which he fully participated in to curtail or deny the contract. To allow such a defence would amount to unjust enrichment.

Legislation cited (7)

Cases cited (10)

  • Fr. Nasereno Begumisa and 3 Others v Tibebaga (Civil Appeal No. 17 of 2002)
  • Makula Interglobal Trade Agency v Bank of Uganda (HCCS No. 950 of 1985)
  • Green Boat Entertainment Ltd v City Council of Kampala (HCCS No. 580 of 2003)
  • Godfrey Katunda v Betty Atuhairwe Bwesharire (High Court Misc. Application No. 185 of 2004)
  • M.M.K Engineering v Mantrust Uganda Ltd (H.C. Misc Application No. 128 of 2012)
  • Bhaker Kotecha v Adam Muhammed [2002] 1 EA 112
  • Makula Interglobal Trade Agency v Bank of Uganda [1985] HCB 65
  • Anglo Fabrics (Bolton) Ltd & Anor v African Queen Ltd & Anor (HCT-CC-CS-0632-2006)
  • Makula International Ltd v H.E. Cardinal Nsubuga & Anor (1982) HCBITI
  • Scott versus Brown, Doering, Mcnab & Co (1892) @QR 724 at & 28

Full judgment

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

Katamba v Katende (Civil Appeal 1 of 2021) [2023] UGHCCD 268 (12 May 2023)
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.