Wakilii

Stella Banyu v Haji Abdul Migade (Miscellaneous Application No.441 of 2006) (Miscellaneous Application No.441 of 2006)

High Court · [2007] UGHC 24 · 2007 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for unconditional leave to appear and defend summary suit for recovery of money paid for land not delivered
Decision
Application dismissed; judgment entered for plaintiff for UGX 25,700,000/= with costs.

Observed later treatment

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Holding

In a summary suit for recovery of money paid for land never delivered, the court held that an applicant seeking unconditional leave to appear and defend must show by affidavit that there is a bona fide triable issue of fact or law. The applicant failed to deny receipt of the money, failed to attach a proposed defence, and raised only sham defences. Application dismissed and judgment entered for the plaintiff for the liquidated sum claimed.

Outcome

Application dismissed; judgment entered for plaintiff for UGX 25,700,000/= with costs.

Facts

In June 2004, the defendant offered to sell Plot 33 Naguru Drive, Kampala, to the plaintiff for UGX 20,000,000/=. After the plaintiff paid more than half the purchase price, she discovered the defendant had sold the plot to someone else. The defendant then offered an alternative plot on Magonga Close, Naguru, for UGX 30,000,000/=. The plaintiff paid UGX 25,700,000/= but later discovered that plot did not belong to the defendant and had been sold by his mother. The plaintiff reported the matter to police. On 29 March 2006, the defendant undertook in writing to refund the money in two instalments by 12 April and 12 May 2006. The defendant failed to honour the undertaking. The plaintiff filed a summary suit under the Civil Procedure Rules. The defendant applied for unconditional leave to appear and defend, alleging breach of sale agreements by the plaintiff, financial losses, and that the written undertaking was obtained by coercion at police CID headquarters.

Issues

  1. Whether the applicant raised triable issues sufficient to warrant unconditional leave to appear and defend the summary suit.
  2. Whether the applicant's grounds for defence disclosed a bona fide triable issue of fact or law.

Orders

  • Application for unconditional leave to appear and defend dismissed with costs.
  • Judgment entered for the Plaintiff in Civil Suit Number 329 of 2006 for the liquidated sum of Shs.25,700,000/=.
  • Defendant to pay costs of the suit to the Plaintiff.

Rules and key headnotes

Civil Procedure — Summary Suits — Leave to Appear and Defend — Burden on Applicant
An applicant seeking unconditional leave to appear and defend a summary suit bears the burden to show and convince the court by affidavit or otherwise that prima facie there is a bona fide triable issue of fact or law in dispute which the court ought to determine between the parties.
Civil Procedure — Summary Suits — Leave to Defend — Court's Role at Interlocutory Stage
At the stage of considering an application for leave to defend a summary suit, the applicant is not bound to show a good defence on the merits, and the court is not entitled to enquire into the merits or demerits of the defence, but the court must be satisfied that if the facts alleged by the applicant were established, there would be a plausible defence.
Civil Procedure — Summary Suits — Leave to Defend — Proposed Defence to be Annexed
As a matter of practice, an applicant for leave to appear and defend a summary suit is required to annex the proposed defence to the application to enable the court to determine whether the arguments put forward amount to a meritorious defence raising triable issues.
Civil Procedure — Summary Suits — Sham Defences — Effect on Application for Leave
Where an applicant for leave to defend fails to deny receipt of money, fails to attach a proposed defence, and raises grounds that disclose no real triable issues but amount to a sham, the court will dismiss the application and enter judgment for the plaintiff.

Legislation cited (2)

Cases cited (3)

  • Abubaker Kato Kasule v Tomson Muhwezi [1992-1993] HCB 212
  • Mukoome Agencies v UCB [1982] HCB 22
  • G.K.O. Trading Co. Ltd. v Sun Trade and Consulting International (U) Ltd. (Miscellaneous Application No. 611 of 2001)

Full judgment

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

Stella Banyu v Haji Abdul Migade (Miscellaneous Application No.441 of 2006) (Miscellaneous Application No.441 of 2006) [2007] UGHC 24 (8 March 2007)
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.