CIVIL LITIGATION (WEEK 8)

INDIVIDUAL ASSESSMENT

NAME: Lydia Wanyoto

ACADEMIC YEAR: 2021/22

Brief Facts:

Nalumansi Merab, the plaintiff has instituted summary proceedings against Sekmate
Joshua, the defendant, for non-payment of monies due from the supply of hardware
materials between the months of March and May of 2021.

The defendant avers that he is not indebted to the plaintiff in the sum claimed or any
sum at all and that the plaintiff’s suit is founded on unjust enrichment. He contends that
while the total purchase price of the ordered goods stood at UGX. 33,000,000/= (Thirty
three million shilling only), all deliveries by the plaintiff were deemed to be defective or
exaggerated and thus the defendant rejected the UGX. 54,000,000/= sought to be
recovered by the Plaintiff

The said goods were rejected by the defendant who consequently notified the plaintiff.
The plaintiff however didn’t take back the said materials and they are still at the
defendant’s construction site.

Issues:

1. What courses of action are available for Sekamate Joshua in the circumstances?

2. What is the necessary procedure and forum in the circumstances?

3. What are the necessary documents to be filed in court?

Law Applicable:

a) The 1995 Constitution of the Republic of Uganda

b) The Civil Procedure Act Cap 71

 c) The Contracts Act 2010

d) The Civil Procedure Rules SI 71-1

e) Case law

Resolution:

1. What courses of action are available for Sekamatte Joshua (the defendant) in the

circumstances?

i. Due Diligence

It is prudent to formalise instructions between M/s Lubega & Co. Advocates and

Sekamatte Joshua before proceeding to act on his behalf as a client. Regulation 2 of the

Advocates (Professional Conduct) Rules provides that an Advocate ought to act upon

receiving instructions from the client. Therefore it is prudent to execute an engagement

letter with Sekamatte Joshua under Section 50 Advocates Act Cap 267 as amended.

Upon formalising instructions as a Legal Assistant at M/s Lubega & Co. Advocates, I

ought to satisfy myself about the contents of the case file on court record. This is to be

done by thoroughly checking with the court registry at the Civil Division of the High

Court in Kampala

ii. Application for leave to appear and defend.

The claim disclosed by the facts is for liquidated demands under Order 36 Rule 2 (a) of

the Civil Procedure Rules SI 71-1. The facts disclose a dispute concerning contract which

has a liquidated sum of 54,000,000/= (Fifty four Million Uganda Shillings Only) being

claimed by the plaintiffs from the defendant.

The essence of summary proceedings is ably laid out in the case of Kyomya Byemaro

John v Agro Finance Trust Ltd Miscellaneous Application No.376 of 2011, where the
court held that Order 36 is intended to enable a plaintiff with a liquidated claim to

which there is clearly no good defence to obtain a quick and summary judgement

without being unnecessarily kept from what is due to him by the delaying tactics of the

defendant.

However where a summary proceeding is commenced under Order 36 of the CPR,

Order 36 Rule 3 (1) permits an application for leave to appear and defend to be lodged

with court within 10 days. In this very instance, Sekamatte Joshua the defendant can

proceed by application for leave to appear and defend before the Civil Division of the

High Court in Kampala within 10 days. It is quite clear from the facts that services of

summons were effected on the defendant on the 16 th day of November 2021 and he is

clearly within time.

Ready Agro Suppliers Ltd & 2 Ors V Uganda Development Bank Ltd (2005)

UGCOMMC 44 is an authority for the position that for one to be granted leave to

defend, he or she must file an application supported by a valid affidavit, if he claims he

has a defence to the claim showing if the defence goes to the whole or part of the suit.

The notice of motion and affidavit in support must be filed at the same time within the

time fixed for the application.

The grounds for the application for leave to appear and defend

In order for Sekamatte Joshua’s application for unconditional leave to appear and

defend to be allowed, he must prove to the satisfaction of court that either he has a

triable issue that warrants a full trial or a plausible defence to the claim lodged in court.

This is established in the case of Uganda Micro Finance Enterprises Association V The

Microfinance Support Centre (2005) UGCOMMC 27, where the court observed that

before an application for leave to appear and defend is granted, the applicant must

show by affidavit or otherwise that there is a bonafide triable issue or law, also that
there is a reasonable ground of defence to the claim. A triable issue is one which raises a

primafacie defence and which should go to trial.

Once court is not satisfied that the applicant has met the preconditions, the grant of the

application for leave to appear and defend maybe conditional. This position was

enunciated in the case of Tusker Mattresses (U) Ltd V Royal Care Pharmaceuticals Misc.

Appl. No.258 of 2011: court noted that for one to be granted leave to apply and defend,

such applicant must satisfy the grounds for grant of such leave. However, court can still

grant the leave even where the grounds are not satisfied but subject to certain

conditions imposed by the court on the applicant.

2. What is the necessary procedure and forum in the circumstances?

Necessary procedure

i. Draft a Notice of Motion accompanied by a valid Affidavit in Support and a

Written Statement of Defence.

Order 52 Rule 1 read together with Order 36 Rule 4 of the Civil Procedure Rules require

an application for leave to appear and defend to be by way of notice of motion

accompanied by a valid affidavit in support stating the grounds of the application.

In Nyakana & Sons Ltd V Kobusinge & Ors Misc. Appl. No. 13 of 2017, the application

was treated as defective incurably for lack of a valid affidavit in support and therefore

was dismissed. Such a defect couldn’t be cured by invoking Article 126(2) (e) of the 1995

Constitution.

As a matter of practice and prudence, the applicant may accompany the application

with a Written Statement of Defence. This helps the applicant to demonstrate that he

has a plausible defence and an issue that warrants full trial.

 ii. Service of the application on the Plaintiff. (Order 36 Rule 4 of the Civil

Procedure Rules)

The service of the application alongside accompanying documents has to be served in

the same way summons are effected. Order 5 of the Civil Procedure Rules SI 71-1

provides for the service of pleadings.

Forum

The appropriate forum for the application for unconditional leave to appear and defend

the summary suit is the same as the court that issued summons in the head suit. That is

to say the Civil division of the High Court in Kampala Pinnacle Projects v Business in

Motion Consultants Ltd No. 362 of 2010 is an authority for that position.

The claim in the specially endorsed plaint for 54,000,000/= (Fifty four Million Uganda

Shillings Only) falls within the pecuniary jurisdiction of the High Court

3. What are the necessary documents to be filed in court?

Application leave to appear and defend (Notice of Motion)

THE REPUBLIC OF UGANDA

IN THE CIVIL DIVISION OF THE HIGH COURT AT KAMPALA

MISC.APPLICATION NO……OF 2021

(ARISING OUT OF CIVIL SUIT NO. 447/021)

SEKAMATTE JOSHUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

NALUMANSI MERAB::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 NOTICE OF MOTION

(Brought under Section 98 Civil Procedure Act, Order 36 Rule 3 (1) & Order 52 Rule 1

and 3 of Civil Procedure Rules SI 71-1)

TAKE NOTICE that this Honourable Court shall be moved on the _______ day of

__________________ 2021 at _________________ O’clock in the forenoon or soon

thereafter as Counsel for the Applicants can be heard for orders that:

1. That the Applicant be granted leave to appear and file a defence in/under Civil

Suit No. 447/2021.

2. That costs of this application be provided for.

The grounds upon which this Application is based are set out in the affidavit in support

of the application sworn by SEKAMATTE JOSHUA, which will be read and relied on

at hearing but briefly are that;

1. The Applicant is the Defendant in Civil Suit No.447/2021 instituted by the

Respondent on the 16th day of November 2021 before this Honourable Court.

2. That on the 15th day of November the year 2021 the Applicant was duly

served a Specially Endorsed Plaint in Civil Suit No.447/2021 by the

Respondent.

3. That contrary to the averments made by the Respondent, the Applicant

rejected the goods upon which the claim of 54,000,000/= is premised

4. That it is also true that after receiving the goods, the applicant notified the

respondent of their defectiveness and implored the respondent to take the

goods back.
 5. That the claim for 54,000,000/= (Uganda Shillings Fifty four Million Only) by

the Respondents in Civil Suit No.447/2021 is misconceived and it is intended

to waste court’s time.

6. That the Applicant raises triable issues and a plausible defence to the claims

made against him by the Respondents in Civil Suit No. 447/2021.

7. That it is in the interest of justice that this Application be allowed and that the

Applicant be granted leave to defend the suit.

Dated at Kampala this …………………… day of …………………………… 2021.

……………………………………………..

COUNSEL FOR THE APPLICANT

(M/S LUBEGA & CO. ADVOCATES)

GIVEN under my hand and seal of this Court this…………..day of …………….2021.

………………………………………….

REGISTRAR

DRAWN AND FILED BY:

M/s Lubega & Co. Advocates

Plot 12 Mapera Road,

P.O. BOX 110,

Kampala.
Affidavit in Support of Motion

THE REPUBLIC OF UGANDA

IN THE CIVIL DIVISION OF THE HIGH COURT AT KAMPALA

MISC.APPLICATION NO……OF 2021

(ARISING OUT OF CIVIL SUIT NO. 447/021)

SEKAMATTE JOSHUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

NALUMANSI MERAB ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

AFFIDAVIT IN SUPPORT OF MOTION

I, SEKAMATTE JOSHUA C/o M/s Lubega & Co. Advocates, P.O. BOX 110, Kampala

do solemnly swear and make Oath as follows;

1. I am a male adult Ugandan believed to be of sound mind and a resident

Kitukutwe, Kira Municipal Council, being well versed with the facts of Civil Suit

No.447/2021 and I depone this affidavit in that capacity.

2. The Respondent is the Plaintiff in Civil Suit No.447/2021 instituted on the 15th

November 2021

3. That it is true that I am the owner of the construction site at Kitukutwe, Kira

Municipal Council whereon the materials of alleged worth of 54,000,000/= which

is the subject of the suit were delivered.

 4. That contrary to the averments made by the Respondent, the Applicant has never

recognised the materials sent by the plaint as effective and thus cannot be

charged thereon.

5. That it is also true that 54,000,000/= claim by the respondent is exaggerated and

meant to deceive this court.

6. That I am advised by my lawyers, M/S Lubega & Co. Advocates whose legal

advice I verily believe to be true that the claim for 54,000,000/= (Uganda Shillings

Fifty four Million Only) by the Respondents in Civil Suit No.447/2021 is

misconceived and it is intended to waste court’s time.

7. That I am further advised by my lawyers, M/S Lubega & Co. Advocates whose

legal advice I verily believe to be true that this Application raises triable issues

and has a plausible defence to the claims made against him by the Respondents

in Civil Suit No. 447 of 2021. (A copy of the Written Statement of Defence is

attached and marked ‘’A’’)

8. That it is in the interest of justice that this Application be allowed and that the

Applicant be granted leave to defend the suit.

9. That I swear this affidavit in total support of this application before this

Honourable Court.

10. That whatever I have stated herein is true and correct to the best of my

knowledge and beliefs save for the information whose source is disclosed.

Sworn at KAMPALA this …………….……… day of ………………………………… 2021

By the said SEKAMATTE JOSHUA

…………………………………

DEPONENT
DRAWN AND FILED BY:

M/s Lubega & Co. Advocates

Plot 12 Mapera Road,

P.O. BOX 110,

Kampala.

Draft Written Statement of Defence

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATE’S COURT OF LUWERO AT LUWERO

CIVIL SUIT NO. 447/2021

NALUMANSI MERAB ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

SEKAMATTE JOSHUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

WRITTEN STATEMENT OF DEFENCE

1. Save as expressly admitted, the Defendant denies each and every allegation of the

facts contained in the Specially Endorsed Plaint as though the same were set out in

verbatim and specifically traversed seriatim.

2. Paragraphs 1 & 2 of the Specially Endorsed Plaint are admitted. The defendant

adds that their address of service for purposes of this suit shall be M/s Lubega &

Co. Advocates, P.O. BOX 110, Kampala, Uganda.

3. The Defendant denies in toto, the contents of paragraphs 3 of the Specially

Endorsed Plaint. The plaintiff shall be put to strict proof of the allegations therein.

4. The Defendant denies in toto, the contents of paragraphs 4 of the Specially

Endorsed Plaint. The defendant contends that:

a) That the price of 54,000,000/= demanded by the plaintiff is greatly exaggerated

b) The materials for which the plaintiff seeks compensation were rejected and she

refused to pick them up thus causing herself to suffer loss from her own actions

5. WHEREOF the Defendant prays that Civil Suit No.447/2021 be dismissed with

costs.

Dated at Kampala this…………..day of ………………… 2021

………………………………………………………………………

COUNSEL FOR DEFENDANT

(M/S LUBEGA & CO.ADVOCATES)

Lodged in the Registry this ……Day of …….…. 2021

…………………………………

D/REGISTRAR

DRAWN AND FILED BY:

M/s Lubega & Co. Advocates

Plot 12 Mapera Road,

P.O. BOX 110,

Kampala.

Summary of Evidence

THE REPUBLIC OF UGANDA

IN THE CIVIL DIVISION OF THE HIGH COURT AT KAMPALA

CIVIL SUIT NO. 447/2021

NALUMANSI MERAB ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS

VERSUS

SEKAMATTE JOSHUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

SUMMARY OF EVIDENCE

The Defendant shall lead evidence to show that the monies being sought for by the

plaintiff are exaggerated and that no claim can be sustained against him.

LIST OF WITNESSES

1. The Defendant.

2. Any other with leave of court

LIST OF DOCUMENTS

1. Any other with leave of court.

LIST OF AUTHORITIES

1. The 1995 Constitution of the Republic of Uganda

2. The Civil Procedure Act Cap 71

 3. The Civil Procedure Rules SI 71-1

4. The Contracts Act 2010

5. The Evidence Act Cap 6

6. Case Law

7. Any other with leave of court

Dated at Kampala this …………….Day of ………………………………. 2020.

……………………………………………

COUNSEL FOR THE DEFENDANT

(M/S LUBEGA & CO. ADVOCATES)

DRAWN AND FILED BY:

M/s Lubega & Co. Advocates

Plot 12 Mapera Road,

P.O. BOX 110,

Kampala.