Hope Development Initiative LTD V Yunus Social Business (U) LTD (HCMiscellaneous Application No 1007 of 2019) 2021 UGCommC 95 (23 March 2021)

THE REPUBLIC OF UGANDA
THE HIGH COURT OF UGANDA AT KAMPALA

[COMMERCIAL COURT]
M.A.No. 1007 of 2019
(Arising from Civil Suit No. 847of 2019)
HOPE DEVELOPMENT INITIATIVE LTD :::::::::::::::::APPLICANTS
VERSUS
YUNUS SOCIAL BUSINESS
FOUNDATION (U) LTD ::::::::::::::::::::::::::::::::::::::::RESPONDENT
RULING
BEFORE: HON. JUSTICE DUNCAN GASWAGA
[1] This is a ruling on an application for leave to appear and defend

brought under S.98 of the CPA Cap 71, Order 36, rule 3 &4 & Order
52 rule 1,2 &3 of the Civil Procedure Rules for orders that; the
applicants be granted leave to appear and defend HCCS No. 847 of
2019 and costs of the application be provided for.
[2] The grounds of the application contained in the affidavit of Atim Agnes
Apea are that; the respondent’s claim is unknown to the applicant,
having obtained a credit facility worth USD 212,437 and fully cleared
the same; that on several occasions the applicant requested the plaintiff
to discuss how much compounded interest would be charged but to no
avail; that on several occasions the applicant requested for account
statements but the respondent refused to avail the same; that the
i
respondent is not a registered money lender and as such did not have
a right to charge compounded interest in turn making the money
lending agreement illegal and void abinitio; that doing a money lending
business without the legal capacity and charging compounded interest
amounts to fraud; that the plaintiff filed the above suit without exploring
the mediation provided for in section 5.8(h) which amounts to abuse of
court process; that the applicant has a good defence and it is in the
interest of justice that the same application be allowed.
[3] This application raises one issue;
(i) Whether the application raises triable issues for which the
applicant should be granted leave to appear and defend Civil
Suit 847 of 2019
[4] Counsel submitted by way of written submissions. Counsel for the
applicant relying on Order 36 rule 3 & 4 CPR, Order 36 (8) and Makula
Interglobal Trade Agency Vs Bnak of Uganda 1985 HCB 65 which
was quoted with approval in Benon Tomusanqe & Anor Vs Exim
Bank (U) Ltd , M.A No. 1213 of 2016 to state that the applicant has
bonafide triable issues of fact and law and he is not indebted to the
respondent and Civil Suit 847 of 2019 is premature and incompetent for
the plaintiff’s failure to explore the arbitration option in clause 8.5 of the
loan agreement. That the applicant is not indebted to the respondent
and the claim for USD 183,688 is for unexplained charges, excessive
and compounded interest which is illegal and fraudulent.
[5] Counsel further stated that a money lending agreement is rendered
illegal when it provides for compound interest and an increase in
interest at every default. See Section 86(1) Tier 4 Microfinance
Institutions and Money Lenders Act 2016. That an arbitration clause in
2
the contract was ignored in contravention of Section 3(4), 5(1) and 9 of
the Arbitration and Concilliation Act. That the court be pleased to send
the matter back to arbitration as per Section 40 of the Arbitration and
Concilliation Act.
[6] It was counsel for the respondent’s submission that the application does
not disclose any triable issues or plausible defence. That the applicant’s
assertion that she paid all her outstanding balance is not backed by any
evidence. Further, in reliance on Sembule Investments Ltd Vs
Uganda Baati Ltd M.A No. 664 of 2009, Counsel stated that the
applicant’s assertion that she paid the whole loan is not true as is
evident from the demand notices attached to the respondent’s affidavit
in support of the summary suit to which the applicant/defendant made
no response. Counsel concluded by praying that the application for
leave to appear and defend be dismissed for being unsustainable,
baseless, unfounded and lacking a plausible defence.
[7] Regarding the arbitration, the respondent stated that he has made
several requests to the applicant to appoint an arbitrator but the
applicant has not been forthcoming. As such the arbitration agreement
is incapable of performance due to the un cooperative nature of the
applicant. Counsel further stated that if however, the court is pleased,
it can stay the proceedings with no orders as to costs and send the
matter to arbitration. See Emmanuel Mugabe Vs Saava Stephen
Kikonyogo & Joseph Kigala (administrators of the estates of the
late Nkizi Nalinnya) & Anor Miso. Cause No. 65 of 2012.
[8] In a brief rejoinder counsel for the applicant stated that the applicant’s
evidence has proved that the applicant has many triable issues that can
only be dealt with and determined in the main suit. The applicant further
3
denied knowledge of annexures “B”, “F” which were brought to its
attention at the stage of filing pleadings and the respondent having
ignored her requests for loan restructuring, the applicant got all the
money and paid it back and as such she is not indebted to the
respondent. The applicant further asserted that annexures “C,
D,F,G,H,J and K” had never been brought to the attention of the
applicants save for the time they were pleaded in pleadings and so they
do not prove the indebtedness of the applicant. Counsel further stated
that the respondent has never taken any steps to appoint an arbitrator
and that Civil Suit No. 847 of 2019 is in direct violation of Section 11 of
the Arbitration and Concilliation Act, Cap 4 whose provisions the
respondent never paid heed to. Counsel concluded by reiterating the
earlier prayers that there are many triable issues which can only be
determined in the main suit which warrants the grant of this application.
[9] The court of Appeal in the case of Kotecha Vs. Mohammed [2002] 1
EA 112 stated thus; “the defendant is granted leave to appear and
defend if he is able to show that he has a good defence on the merit; or
that a difficult point of law is involved; or a dispute as to the facts which
ought to be tried; or a real dispute as to the amount claimed which
reguires taking an account to determine; or any other circumstances
showing reasonable grounds of a bona fide defence."
[10] The applicant herein intimated to this court that the outstanding sums
were cleared to completion as required whereas the respondent denies
the same. The applicant further avers that the respondent ought to have
first had recourse to the arbitrator before moving this honourable court.
[11] The above constitute triable issues which merit further consideration by
this court by way of hearing the main suit. See Corporate Insurance
4
Co. Ltd Vs Nyali Beach Hotel Ltd [1995-1998], EA where the Court
of Appeal of Kenya ruled that; “leave to appear and defend will not be
given merely because there are several allegations of fact or law made
in the defendant’s affidavit. The allegations are investigated in order to
decide whether leave should be given. As a result of the investigation
even if a single defence is identified, or found to be bonafide,
unconditional leave should be granted to the defendant. ”
[12] Resultantly, this court finds that the above issues merit this court’s
consideration and in the circumstances, leave to appear and defend is
hereby granted. The applicant is ordered to file its written statement of
defence within fifteen days from the date hereof. The respondent shall
then file a rejoinder, if he so wishes, according to law.
I so order
Dated, signed and delivered at Kampala this 23rd day of March202H

Dunca^^swaga
JUDGE

Hope Development Initiative LTD V Yunus Social Business (U) LTD (HCMiscellaneous Application No 1007 of 2019) 2021 UGCommC 95 (23 March 2021)

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THE REPUBLIC OF UGANDA

THE HIGH COURT OF UGANDA AT KAMPALA

HOPE DEVELOPMENT INITIATIVE LTD :::::::::::::::::APPLICANTS

YUNUS SOCIAL BUSINESS

FOUNDATION (U) LTD ::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE: HON. JUSTICE DUNCAN GASWAGA

[1] This is a ruling on an application for leave to appear and defend

Dated, signed and delivered at Kampala this 23rd day of March202H

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