Kiggundu and Others v Kibumbi and Another (MISCELLANEOUS APPLICATION NO.3539 OF 2023) [2024] UGHC 1217 (30 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### **MISCELLANEOUS APPLICATION NO. 3539 OF 2023**

- 1. KIGGUNDU WILLIAM CHARLES - 2. HENRY SSALI - 3. BAZANYE LIVINGSTONE - 4. NABAYINDA RUTH ::::::::::::::::::::::::::::::::::::

### **VERSES**

- 1. KIBUMBI ALI - 2. BYAKATONDA DEUS ::::::::::::::::::::::::::::::::::::

#### HON. LADY JUSTICE NABAKOOZA FLAVIA. K **BEFORE:**

### **RULING**

This application was brought under Section 98 of the Civil Procedure Act, Order 6 rules 10, 30 and 31, Order 13 rules 6 and 9, and Order 52 rules 1 and 2 of the Civil **Procedure Rules** seeking for orders that:

- a. The 1st and 2nd Respondent's written statements of defence filed on 3rd and 1st November, 2023 respectively in Civil Suit No. 1185 of 2023 be struck out for offending Order 6 rules 8, 10 and 30 of the Civil Procedure Rules. - b. Judgment be entered against the Respondents/Defendants for liability. In the alternative but without prejudice; - c. The judgement be entered on admission against the Respondents. - d. The costs of the Application be provided to the Applicants.

The grounds of the application are contained in the Affidavit in support of the 1st Applicant (Kiggundu William Charles) with authority from the 2nd, 3rd and 4th Applicants. Briefly, they are.

That the Applicants filed CS No. 1185 of 2023 against the Respondents together with others wherein they sought for; cancellation of sale and transfer of Instrument No. WAK-00113692 dated 31/1/2017 which was illegally used to enter the name of the 1st Respondent as Administrator of the estate of the Late Alisitaliko Kirimumunda on land comprised in Busiro Block 543-544 Plot 15 at Lugo; order for cancellation of transfer

Page 1 of 8

$\mathsf{S}$

Address

30/09/2024

instrument No. WAK-001 17652 dated 231212017 which was illegally used to enter the name ofthe 2"d Respondent as proprietor fiom the l" Respondent; and cancellation ol all illegat subdivisions and subsequent transfers by the 2'd Respondent.

1-he Applicants averred that the Respondents, in their written statements ol defence, made general denials which offends the Civil Procedure Rules, and that the written statement of defence ought to be struck olT the record. That the Respondents made admissions to the Applicants' claims and sought for couft to grant the plaintiffs' prayers in the suit, hence .judgment on admission.

35 40 The Respondents filed their respective affidavits in reply. 'Ihe l't Respondent admitted to filing a written statement of del'ence wherein he denicd all the allegations stated against him. That the property comprised in Block 543-544 Plot 15 at Lugo was iltegally registered in his names as an administrator of the estate by unknown persons. That he has never participated in any illegal dealings; does not know the Applicants' property and he is not aware ol the person who f-aked his national identity card and presented the same to the Ministry of Lands. -fhat he is no1 aware of the claims against him, he does not object to judgment being granted to the Applicants nor striking out his def'ence to enable the Applicants obtain their land. Additionally, that he does not object to the Applicants' prayers in the instant application.

The 2"d Respondent deposed that the claims that he purchased land comprised in Block 543 -544 Plot 15 at Lugo irom Kivumbi Ali are matters not within his knowledge. That he does not know Kivumbi Ali nor wherc the land is situated. That he does not obiect to the grant ol the declarations and orders sought by the Applicants and that the subdivisions and subsequent transfers attributed to him should be cancelled since he has never signed any transf'er lbrm or mutation form that led to the said transactions. Further, that he has been dragged to court on what is unknown to him and doesn't object to striking out his written statement of det-ence.

Represcntation: The Applicants were represenled by Counscl Daniel Byaruhanga while the 2'd Respondent was represented by Counsel Musinguzi Joshua. Both counsel filed rvritten submissions which shall be relied on in this ruling.

60 lssues for determination:

Page 2 of 8

30t09t2024

3o 11 lz+

The Applicant's counsel raised and resolved two issues to wit; -

- 1. llhether the ll/rilten Stalement of Defence liled by the Defendanl/Respondent offends Order 6 Rules 8, l0 and 30 of the Civil Procedure Rules? - 2. Ll/hether a judgment on admission should be issued agoinst the Respondenls?

Issue No.l: ll/hether the l;l/ritten Stotement of Defence filed by the Defendant/Respondent offends Order 6 Rules 8, l0 and 30 of the Civil Procedure Rules.

Counsel for the Applicants submitted that the Civil Procedure Rules makes it mandatory fbr a defendant to specifically deny the claims of the ptaintiff in the wriften statement ol defence. That the 1'1 and 2"d Respondent did not specilically deny the Plaintiffs claims but rather had general denials. That the responses should be intelligibte, clear and precise and should give an answer to an allegation in the claim. That the evasive or general denials renders the delence incurably defective and cannot be cured by Article 126 (2)(e) of the Constitution.

80 On the issue of judgment on admission, Counsel cited Order 13 rule 6 of the Civil Procedure Rules, which provides that:

> Any party may at any stage tl-a suil, v,here an admission of .facts has been made, eilher on the pleudings or olherwise, apply to the cout! for such judgmenl or order as upofi the admission he or she may be entilled to, without wailing.for the delermination o.f uny other question betvveen lhe parlies: and the courl may upon the applicalion make such order, or give such judgment, as lhe court may lhinkjusl.

90 95 He submitted that the Respondents in thcir written statemcnt of defence, specilically paragraphs 3. 15,6 and 7, admitted the Plaintiffs' claim under Paragraph 4 ofthe plaint. Counsel relied on the cases of; Mcssers Equator Touring Service Ltd Vs City Council of Kampala Misc. Application No. 40612013, Central Electrical International Ltd Vs Eastern Builder & Engineers MA No. 17612008' Excel Constructions Ltd Vs AG HCCS No.3007 and John l'cter Nazareth Vs Barclays Bank International Ltd E. A. C. A 39 of 1976 (UR) where it was held that an admission ol i-acts can be made either on the pleadings or otherwise; and that the rule applies to any party to thc suit whethcr the plaintilT or def'endant.

The Applicants Counsel argued that the Def'endants admitted to the claims in the plaint and made out a case for grant ofjudgement on admission.

Page 3 of 8 z" | 1 lu). 30t0912024 100

In reply, Counsel lor the 2"'l Respondent cited Ecobank Uganda Limitcd Vs Kalson's Agrovert Concern Ltd & Anor HCCS No. 57312016, Turkish Airlines Inc Vs KK Fresh Producc Exportcrs Ltd & Ors, MA No. 755 o12023 and Petcr Jogo Tabu Vs The Registered Trustees of the Church of the Province of Uganda }ICCA 1612017 and submitted that there are 3 options in cases of this nature to wit;- striking out pleadings or any part of it: deern the general denials or cvasive denials as admissions; orcler the defendants to yield lurfher and better particulars undcr Order 6 rule 4 and order an amendment of pleadings under Order 9 rule 19 to enable a pafty yield clear and precise responses. Hc prayed that the Applicants be granted judgment on admission; the matter set down 1br lbrmal proof ; and that each pafty bears its own costs'

### llesolution

I have carefully considered the law and the pleadings of the parties. Order 6 Rule 8 of the Civil Procedure Rules provides that:

L20 It shall not be sfficient for a defendanl in his or her writlen statement to deny generally the grounds atleged b1t the statentent of cloim, or for the plaintiff in his or her \$ryitten slatement in reply to deny generalb, th, frounOt alleged in a defense by way of counterclaim, bul each party must deal specirtcaily with each allegation of fact which he or she does not admit the truth, except damages. 115

## Further, Rule 10 provides that:

When a party in any pleoding denies an allegation of facl in the previous pleading of the opposite party, he or she must not do so evasively, but answer the point of substance. Thus, if it is alleged that he or she received a certain sum of money, il shall not be sfficient to deny that he or she received that particular amounl, but he or she musl deny that he or she received that sum or any port of it, or else set out how much he or she received. If the allegation is ntade with diverse circuntslonces, it sholl not be suficient to deny it along w ith those c ircumstance s.

To determine if a written statement of defence contains general denials, the court examines the said pleadingvis a vie the allegations contained in the Plaint.

'the Plaintiifs' claim is premiscd on tiaud and itlegalities purportedly committed by the l'r and 2nd Respondents together with the I 0'l' Defendant (the ('ommissioner Land

3o - q -)-o4 3010912024 Page 4 of 8

Registation). The Plaintiffs allege, under paragraph 5 (d- l) of the plaint, that the l" Respondent is a stranger to their grandfather's estate, but obtained Letters of Administration from Nakawa High Court vide AC No. 1213 of 2015 and irregularly became registered on the suit land as an administrator ofthe estate ofthe late Alisitaliko Kirimumundu o n l8ll l12016. That he later sold the suit land to the 2nd Respondent who got registered on 23lO3l20ll . The 2'd Respondent then caused sub-divisions and created various plots which were transferred to the respective Defendants in HCCS No. 118512023. That they complair.red lo the Registrar of the High couIt, who established that the Adrninistration Cause Number relied on by the l" Respondent does not exist. Further, that the 3'd to 9rh Defendants in HCCS No. I 185 of 2023 entered into transactions with the 2'd Respondent well knowing that the 2"d Respondent had illegally procured the suit land from the l't Defendant/Respondent who did not have genuine Letters of Administration, and hence cannot claim as bonafide purchasers.

Counsel for the parties in this application agree, their submissions, that the two written statements of defenses do otfend the provisions Order 6 rule 8 and l0 of Civil Procedure Rules.

In defence, the l'r Respondent, under paragraphs 2 and 3, dcnied the contents of paragraph 4 (ii)(iv)(vii), (xi), (xi), (xii) (xiii) and (xiv) and paragraph 5(1), (g) and (l) of the plaint. Under paragraph 4, 5,6 olthe same, he denied indulging in the affairs ofan estate he did not know about and knowing the 2"d Respondent or meeting him in any transaction touching the suit land. Further, under paragraph 7 and 8 of his defence, he partly admitted to the contents of paragraphs I 0, I I . I I (vi), (ii), (iii) and (i), and denied paragraph 12, ol the plaint in loto. Lastly, under paragraph 10, he admitted to paragraphs l6 and I 7 of the plaint and stated that he has no claim to the suit property.

170 The 2"d Respondent also denied thc contents of paragraph 5(g), (h), (i) and (k) and admitted paragraph 5 (l) of the plaint under paragraph 3 ol his written Statement of defence. He pleaded that he has never met the 1'1 Itespondent nor purchased any land from him to sign transl'er forms in his favor. That he has never carried out any subdivision and transfer olthc suit land in to the 3'd to the 9'l'defendants' names who are unknown to him. Under paragraph 5 of his defence, he paftly admitted paragraphs 10,11,11 (iii), (iv) and (v), l4 and 15, and denied paragraph l2 in toto, of the plaint.

![](_page_4_Figure_6.jpeg)

1. In Peter Jogo Tabu v The Registered Trustees of the Church of the Province of Uganda, supra, cited by the 2nd Respondent's Counsel, my brother Mubiru J., stated that:

The combined ffict of Order 6 rules 3, 8 and l0 of The Civil Procedure Rules is that any .fact stated in lhe plaint, if nol denied specifically or by necessary implication or stoted to be not admilted in lhe pleading of the defendant, is lreated ds odmilted. A general denial or an evusive denial is not treated os sufficienl denial and, therefore, the denial of allegations of ./acts made in the plaint, iJ'il is not definite, positive and unambigurtus, is lrealed as admilled under those rules.

Further, in Byaruhanga Africano Vs. Uganda Electricity Distribution Co. Ltd (UDDCL). MA No. 061 of 2022,, my brother Wagona J., pointed out that:

Il/hot the defendant is supposed to do is to pul up o defense requiring lhe plainlilf lo prove his case. He or she is not under uny legal obligation to plead.fitcts. As long as he denies the plaintifl-'s claim as nol being lrue. lhat is sfficient to put the plaintiff to the task to prove his claim.

In view ofthe above authorities, considering that the l'r Respondent denied being involved in the transfer of the suit land to his names and later to the 2"d Respondent and the 2nd Respondent made a similar denial, it is clear that the Respondents put up defenses requiring the Plaintilfs to prove that it was the 1"'and 2nd Def'endants who fraudulently dealt with the suit.

200 20s The Respondents' defenses cannot be slruck out sirnply because they denied knowing each other or involving in the transactions touching the suit land. Had they denied the names ol persons mentioned on the instruments oftransler ofthe suit land from the fbrmer registered proprietor Atisitaliko Kirimumundu, that would have been sufficient. I lowever, the Respondents did not deny their names as were used during the transfer. Therefore, tl.rcir participation is important and must be proved by the Plaintiffs/Applicants to the required standard during trial. Accordingly, I find that the Respondents established their respective defence to the suit and that the same are not general or evasive. This answers the l'r issue in the negative.

Issue 2. Whether a jutlgment on :rdmission should bc issucd against thc l{cspondents? 2lo

\_2J+

30t09t2024

Zo- 01

Page 6 of 8

In The Board of Governors Nebbi Town S. S. S Vs .faker Food Storcs Limited (MISCELLANEOUS CML APPLICATION No. 0062 OF 2016)' my brother Mubiru J noted that:

...thejudge's discrelion to grant judgmenl on admission o/ fact under the law is to be exercised only in plain cases.'[he admission should be unambiguous, cleor, unequivocal and positive. IYhere the alleged admission is nol clear and speci/ic, il may not be appropriate to loke recourse to lhe provisions oJ Order l3 rule 6 ofThe Civil Procedure Rules.

According to the plaint, the suit land was transferred from the names of the late Alisitaliko Kirimumunda by the l'1 Respondent as an administrator of the estate and later to the 2'd Respondent under a sale agreement. It is further alleged that the 2nd Respondent then created sub-divisions as follows:

- a. Under instrument No. WAK 00127355 crcated plots 463,464 and 465. Plot 463 was transferred to the 3'd Defendant then to the 4tl'defendant. - b. Plot 464 was subdivided to create plots 651, 652,653 and 654. Plot 651 was transferred to the 5th Defendant. Plot 652 and 653 were transferred to the 5'h Defendant. - c. Plot 464 was transferred to the 5rl'defendant and later transf'erred to the 6tl' Defendant. - d. Plot 654 was transferred into the names of the 8'h defendant who further subdivided it into plots 661 and 662. Plot 661 was transferred into the 9th Defendants' names.

240 The essence of the above summary is that the I't and the 2nd Respondents are no longer registered proprietors ofthe suit land. The suit land is currently registered in the names of the 3'd to 91h Defendants in FICCS No. 1 I 85 o12023 per paragraphs 5 (h), (i), (i) and (k) of the ptaint; and the 3'd, 4dr and 6th defendants' written statements of defense were uploaded on the Electronic Court Case Management Information System(ECCMIS). Therefore, the I't Respondent/Defendant's prayer under, paragraph 8 of his written statement of defbnce, that his name be cancelled to enable the Applicants regain their land is misleading. They cannot admit to cancellation of title for the land which is not registered in their names, the land is currently registered in other parties.

In addition, the Respondents partly admitted to the allegations of fraud or illegalities as pleaded under paragraph I I (ixii) (iii), and (iv) ofthe plaint. This lefl the unadmitted part

Page 7 of 8 % -4 - =-o>:4 30t09t2024

of the plaint to be proved by the Plaintiffs. Therefore, it would be inappropriate to enter a judgment on admission against the Respondents.

Consequently, the court declines to enter a judgment on admission against the 250 Respondents. This answers the second issue in the negative as well.

In conclusion, the application is hereby dismissed. The suit shall be set down for formal proof. Costs be in the cause.

Signed, dated and delivered at Kampala this. 30 day of September 2024.

Nabakooza Flavia, K **Judge**

$\cdot$