Wakilii

Sam Engola v Es-ko International Inc - (HCT-00-CC-MA 231 of 2005)

High Court · [2005] UGCOMMC 11 · 2005 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to appear and defend in a summary suit arising from alleged debt
Decision
Judgment entered against the applicant for the full amount claimed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for leave to defend dismissed. The court held that the applicant personally undertook to pay the debt in a settlement agreement and was properly sued. The applicant failed to establish payment to the respondent, having allegedly paid a third party in breach of his undertaking. The applicant did not discharge the burden of showing a triable issue. Judgment entered for the respondent in the sum of US$10,000.

Outcome

Judgment entered against the applicant for the full amount claimed

Facts

In May 2004, the respondent advanced US$10,000 to Showa Traders for air charter costs. The applicant, Sam Engola, was managing director of a company variously identified in documents as Showa Traders Ltd, Showa Trade Air Cargo, or Showa Trade Air Cargo Transporters. On 30 November 2004, the applicant signed a settlement agreement personally undertaking to repay the debt in monthly instalments of US$2,000. The applicant failed to pay. The respondent filed a summary suit against Sam Engola personally. The applicant applied for leave to defend, arguing he was the wrong party and that the debt had been paid to one Fataki Ishimael in Kinshasa. A search revealed no company matching the various Showa names was registered in Uganda.

Issues

  1. Whether the applicant was the right party to be sued in the summary suit.
  2. Whether the applicant was indebted to the respondent or had already discharged the debt.
  3. Whether the applicant had established a triable issue of fact or law warranting unconditional leave to defend.

Orders

  • Application for unconditional leave to appear and defend dismissed.
  • Judgment entered for the respondent/plaintiff in the sum of US$10,000.00.
  • Costs of the suit awarded to the respondent.

Rules and key headnotes

Summary Suits — Leave to Defend — Burden and Standard of Proof
A defendant seeking leave to defend a summary suit must show on affidavit evidence that there is a triable issue of fact or law. It is not sufficient to merely assert a defence without providing particulars proving the possibility of a reasonable defence.
Summary Suits — Leave to Defend — Personal Undertaking to Pay
Where a defendant personally undertakes in a settlement agreement to pay a debt owed by a company of which he is an officer, he may be properly sued personally on that undertaking regardless of the identity of the original debtor.
Documentary Evidence — Credibility of Fax Messages
A document purporting to be a fax message but lacking fax transmission features such as originating and receiving fax numbers is not intrinsically credible as a fax without explanation for the missing features. Evidence submitted to court must be credible on its face.
Payment and Discharge — Payment to Third Party Without Authority
Where a debtor undertakes to pay a creditor directly but instead claims to have paid a third party in another jurisdiction without showing authority for such payment or connection between the third party and the creditor, such alleged payment does not discharge the debt.
Corporate Personality — Personal Liability of Directors
The principle of separate corporate personality does not shield a director from personal liability where the director personally undertakes to pay a company debt by express agreement.

Legislation cited (2)

Cases cited (3)

  • Hasmani v Banque du Congo Belge (1938) 5 EACA 88
  • Toro & Mityana Tea Co Ltd v Ibingira Charles (HCCA No. 11 of 1995)
  • Churanjila and Co v AH Adam (1950) 17 EACA 92

Full judgment

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

Sam Engola v Es-ko International Inc - (HCT-00-CC-MA 231 of 2005) [2005] UGCommC 11 (12 April 2005)
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.