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    Shell Kasese Services LTD and Others V The Coopera

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    Real Trekstar
    The applicants sought unconditional leave to appear and defend the main suit against them, arguing that the respondent bank had sold the security provided at an undervalue far below its actual market value. The respondent opposed this, claiming the security was not sold at an undervalue. The judge found that the valuation reports submitted by each party showed a conflict regarding the market value and built area of the security. As such, triable issues existed that could only be resolved through a trial. The judge therefore granted the applicants unconditional leave to appear and defend the main suit, with their written defense to be filed within 10 days. Costs would abide the outcome of the main suit.

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    Shell Kasese Services LTD and Others V The Coopera

    Uploaded by

    Real Trekstar
    91 views3 pages
    The applicants sought unconditional leave to appear and defend the main suit against them, arguing that the respondent bank had sold the security provided at an undervalue far below its actual market value. The respondent opposed this, claiming the security was not sold at an undervalue. The judge found that the valuation reports submitted by each party showed a conflict regarding the market value and built area of the security. As such, triable issues existed that could only be resolved through a trial. The judge therefore granted the applicants unconditional leave to appear and defend the main suit, with their written defense to be filed within 10 days. Costs would abide the outcome of the main suit.

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    Shell Kasese Services Ltd and others v The Coopera

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    The applicants sought unconditional leave to appear and defend the main suit against them, arguing that the respondent bank had sold the security provided at an undervalue far below its actual market value. The respondent opposed this, claiming the security was not sold at an undervalue. The judge found that the valuation reports submitted by each party showed a conflict regarding the market value and built area of the security. As such, triable issues existed that could only be resolved through a trial. The judge therefore granted the applicants unconditional leave to appear and defend the main suit, with their written defense to be filed within 10 days. Costs would abide the outcome of the main suit.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    91 views3 pages

    Shell Kasese Services LTD and Others V The Coopera

    Uploaded by

    Real Trekstar
    The applicants sought unconditional leave to appear and defend the main suit against them, arguing that the respondent bank had sold the security provided at an undervalue far below its actual market value. The respondent opposed this, claiming the security was not sold at an undervalue. The judge found that the valuation reports submitted by each party showed a conflict regarding the market value and built area of the security. As such, triable issues existed that could only be resolved through a trial. The judge therefore granted the applicants unconditional leave to appear and defend the main suit, with their written defense to be filed within 10 days. Costs would abide the outcome of the main suit.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 3

    THE REPUBLIC OF UGANDA

    HIGH COURT OF UGANDA AT KAMPALA

    COMMERCIAL COURT DIVISION

    HTC-00-CC-MA-317-2005

    (Arising from HCT-00-CC-CS-0140-2005)

    Shell Kasese Services Ltd and others v The Cooperative


    Bank Ltd
    18th May 2005
    BEFORE: THE HONOURABLE MR. JUSTICE F.M.S. EGONDA-NTENDE

    RULING

    1. The applicants are seeking unconditional leave to appear and defend the main suit and
    that costs of this application abide the main suit. The application is brought by notice of
    motion with the affidavit of Applicant No. 2 in support thereof. The main ground of this
    application is that the applicants intend to file a cross action against the respondents for
    having sold the security provided to the respondent at an undervalue, far below its market
    value, whereas its worth should have satisfied the respondents claim against the
    applicants.

    2. The Respondent opposed this application, filing an affidavit in reply sworn by Mr. Ben
    Sekabira, an agent of the respondent. The Respondents deny that the security to the loan
    was sold at an undervalue.

    3. Mr. Benard Bamwine, learned counsel for the applicant submitted that the security of
    the applicant was sold at Shs82,000,000.00 which was an undervalue, given that the 1997
    valuation of the said property had put its value at over Shs500,000,000.00. The valuation
    of the respondents put the market value of the security at Shs132,000,000.00 which was
    so out of range with the 1997 value. The applicants valuation report records the built up
    area to be 1462 square metres whereas the respondent valuation records the built up area
    as slightly over 1000 square metres. This raises a triable issue for which the applicants
    should be granted unconditional leave to appear to defend.

    4. Mr. Mathias Sekatawa, learned counsel for the Respondent, submitted that this
    application raised no triable issue. The question of whether the sale of the security was at
    an undervalue is matter that can only be tried in a separate action for damages. This must
    be brought by originating summons only. Secondly Mr. Sekatawa argued that admission
    had been made of the amount owing to the Respondent from the applicants. If leave were
    to be granted it should be conditional upon payment of the amount admitted.

    5. No authority has been drawn to my attention that bars the bringing of a cross action
    against the plaintiff in respect of damages for selling property as security at an
    undervalue. The applicant has argued that had the respondent acted properly, the sale of
    the security would have resulted in payment of the whole outstanding debt to the
    plaintiff/respondent. Each party has submitted a valuation report of the security in
    question, and it is clear that there is a conflict between the two reports on both the market
    value of the security and consequently the forced sale value, and on the area of the built
    up areas of the security. The difference in the built up area is approximately 0.344 Square
    Metres.

    6. I am satisfied that triable issues are raised upon these matters which cannot be resolved
    without a trial. And indeed the question of whether the respondent in selling the security
    did so at a reasonable price is one that can only be settled after a trial of all issues
    connected thereto. As it is contended that the sale ought to have realised the outstanding
    amount, and more, there exists a cross action that would offset the whole of the plaintiffs
    claim.

    7. In the circumstances I will allow the applicant’s application for unconditional leave to
    appear and defend the main suit. The written statement of defence shall be filed within 10
    days from the date hereof. Costs shall abide the outcome of the main suit.

    Dated at Kampala this 18th May 2005


    FMS Egonda-Ntende

    Judge

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