Wakilii

Musumba Isanga v Quid Financials Ltd (Miscellaneous Application No. 139 of 2020)

High Court · [2022] UGCOMMC 52 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to appear and defend a summary suit arising from Civil Suit No. 41 of 2020
Decision
Application dismissed; judgment entered for the Respondent/Plaintiff in the main suit for UGX 425,000,000 plus costs

Observed later treatment

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Holding

Held that an application for leave to appear and defend a summary suit filed beyond the ten-day statutory period without leave of court must be struck out. Further held that an affidavit sworn by counsel on behalf of a party without written authority is defective and must be struck off. Where an applicant makes mere assertions of having a defence without substantiating triable issues or a good defence on the merits, leave to appear and defend will be denied and judgment entered for the plaintiff.

Outcome

Application dismissed; judgment entered for the Respondent/Plaintiff in the main suit for UGX 425,000,000 plus costs

Facts

The Respondent sued the Applicant by summary procedure to recover UGX 425,000,000 arising from the sale of land at Kisasi. The Applicant sold the land to the Respondent but failed to deliver vacant possession and signed a document acknowledging the debt. Summons in the summary suit were served on the Applicant via WhatsApp Messenger on 23 January 2020. The Applicant filed an application for leave to appear and defend on 17 February 2020, which was beyond the ten-day statutory period. The application was supported by an affidavit sworn by the Applicant's lawyer, Barenzi Johnny Patrick, who claimed the Applicant was out of the country. The Applicant later filed an additional affidavit on 1 July 2020 without leave of court, revealing he was in Uganda on 17 February 2020 and that Barenzi had no written authority to swear the affidavit on his behalf.

Issues

  1. Whether the application was filed out of time and should be struck out.
  2. Whether the affidavit in support of the application sworn by Barenzi Johnny Patrick is defective.
  3. Whether the Applicant should be granted leave to appear and defend Civil Suit No. 41 of 2020.

Orders

  • Application denied.
  • Respondent/Plaintiff granted judgment in Civil Suit No. 41 of 2020.
  • Respondent/Plaintiff awarded UGX 425,000,000 as money owed by the Applicant/Defendant.
  • Costs of the application and in the main suit awarded to the Respondent/Plaintiff.

Rules and key headnotes

Summary Suits — Time Limits for Filing Leave to Appear and Defend
Under Order 36 Rule 3 of the Civil Procedure Rules, a defendant must file an application for leave to appear and defend a summary suit within ten days from the date of service of the summons. An application filed beyond this period without leave of court is out of time and must be struck out.
Service of Process — Electronic Service via WhatsApp
Service of court processes by WhatsApp Messenger, email, or other electronic means is permissible and effective, especially where a litigant is evading service, as it achieves the purpose of notifying the litigant of pending proceedings or hearing dates.
Affidavits — Authority to Swear on Behalf of Another
A person swearing an affidavit on behalf of another must present their authority in writing and attach it to the affidavit. An affidavit sworn by counsel on behalf of a party without written authority is defective and must be struck off.
Summary Suits — Test for Granting Leave to Appear and Defend
To obtain leave to appear and defend a summary suit, a defendant must show that he has a good defence on the merits, or that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or any other circumstances showing reasonable grounds of a bona fide defence. Mere assertions not substantiated in affidavit are insufficient.
Summary Suits — Consequences of Denial of Leave
Under Order 36 Rule 5 read with Rule 3(2) of the Civil Procedure Rules, once leave to appear and defend is denied, the plaintiff is automatically entitled to a decree for an amount not exceeding the sum claimed in the plaint and costs.

Legislation cited (7)

Cases cited (6)

  • Male H Mabirizi v Attorney General (Miscellaneous Application No. 918 of 2021)
  • Makerere University v St. Mark Education Institute & Ors (Civil Suit No. 378 of 1993)
  • Bishop Patrick Baligasiima v Kiiza Daniel & Ors (Miscellaneous Application No. 1495 of 2016)
  • Kotecha v Mohammed [2002] 1 EA 112
  • Geoffrey Gatete & Anor v William Kyobe (SCCA No. 7 of 2005)
  • Kaheru Yasin & Anor -v- Zinorumuri David, Misc.

Full judgment

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

Musumba Isanga v Quid Financials Ltd (Miscellaneous Application No. 139 of 2020) [2022] UGCommC 52 (29 July 2022)
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.