Mugerwa and 6 Others v Ssemakula (Miscellaneous Application 2292 of 2021) [2024] UGHCLD 234 (2 October 2024)

## 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(LAND DIVISION)**

#### **MISC APPLICATION NO. 2292 OF 2021**

### **(ALL ARISING OUT OF H. C. C. S NO. 902 OF 2021)**

### 10 **1. MUGERWA FRANK**

- **2. SSALI MUKASA BALIKUDEMBE** - **3. LUZZE CHARLES (Administrators of the Estate of the Late Tamale John)** - **4. TAMALE JOHN** - **5. KASOMA ROBERT** - 15 **6. HATEGEKA KAMYA RICHARD** - **7. GRACE NABBALA ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS**

# **SSEMAKULA RICHARD EMMANUEL ::::::::::::::::::::::::: RESPONDENT**

## **BEFORE HON. LADY JUSTICE IMMACULTE BUSINGYE** 20 **BYARUHANGA**

### **RULING**

This application was brought by way of chamber summons under *Order 7 rule 11 and Order 6 rule 30 Civil Procedure Rules and Section 98 Civil Procedure Act, Cap 71* seeking the following orders;

- 25 1. The plaintiffs/ respondents in Civil Suit No. 902 of 2021 be dismissed because it is grounded on illegal and non-existing contracts thus discloses no cause of action against the respondent/ defendants. - 2. Costs of this application be provided for.

This application is supported by an affidavit in support sworn by the **Mr. Irumba**

30 **Robert,** an Advocate of the High Court and one of the lawyers representing the applicants in the instant case. The said affidavit was sworn on the 29 th day of 5 December 2021. The grounds of the application are laid out in the application and the affidavit in support of the application.

The respondent swore an affidavit in reply deponed by **himself** wherein it was deposed that the contents of the application were misconceived, baseless and lacked merit.

## 10 *Background of the application*

According to the plaint filed on 6th October 2021, the plaintiff/ respondent claimed that he is a son of the late Alimando Mukasa Ssemakula formerly of Kiti Busimbo, Kasangati Town Council in Wakiso District who died on 1st April 1980 produced 7 children including the Late Bena Namugayi, the Late Kasoma Andrew, Nabwami

15 Kenin, the Late Najjuma Milly, the Late Mutyaba John, Late Nalima Francis Xavia and Ssemakula Richard Emmanuel and currently the plaintiff and Nabwami Kevin are the only surviving beneficiaries.

The plaintiff contended that during the lifetime of the late Alimando Mukasa Ssemakula, he owned a kibanja interest at Kiti Busimbo in Wakiso District 20 measuring approximately 4.5 acres which he occupied with full knowledge of the late Tamale John who was the landlord and the same still carries the family house to date with family occupants residing thereon.

The plaintiff further claimed that upon the death of the late Alimando Mukasa Semakula, his son and elder brother of the plaintiff (Mutyaba John) commenced the 25 process to secure registered interests in the family kibanja and agreed with their landlord Tamale John to be paid Ug. Shs. 300,000 (Uganda Shillings Three Hundred Thousand only) as consideration of the same. The plaintiff further contended that the Late Mutyaba John paid Ug. Shs. 150,000 (Uganda shillings one hundred and fifty thousand only) to the Late Tamale with the balance of Ugx 150,000 (Uganda


5 shillings one hundred and fifty thousand only) which was to be paid after the survey, however, the survey was never conducted until the death of Mutyaba John.

The plaintiff/ respondent also contended that upon the death of the Late Tamale, the 1 st, 2nd, and 3rd defendants/ applicants applied and were granted letters of administration for the deceased's estate and the 4th defendant between June 2012 and

- September aided the 1st, 2nd and 3rd 10 defendants/ applicants with funding in procuring letters of administration. The plaintiff further averred that after the grant of the letters of administration, the administrators of the Late Tamale approached the plaintiff/ respondent's family in the presence of the 4th applicant to produce proof of ownership and occupation in the land so as to issue the certificate of title for the - 15 Alimando family occupied land/ kibanja.

The plaintiff/ respondent claims that an agreement was reached by the family of the late Alimando Mukasa Ssemakula and the Administrators of the Estate of the Late Tamale where it was decided the 2.5 acres of the kibanja would be forfeited as consideration for issuing a certificate of title for the remaining 2 acres in favor of the

20 Estate of the Late Alimando Mukasa Ssemakula and the same was issued in 2014 for land comprised in Kyadondo Block 99 plot 2063 land at Busimbo measuring approximately 0.802 hectares.

That in the absence of an Administrator, the family of the Late Alimando Mukasa Ssemakula appointed Kasoma Charles, Nabatanzi Flavia and Mutyaba John Bosco

25 as the family Trustees in whose names the land would be registered in, to hold the same for the benefit of all the children and grandchildren of the Late Alimando Mukasa Ssemakula.

That the 1st, 2nd and 3rd applicants/ defendants informed the area LC Chairperson that the certificate of title of land comprised in Kyadondo Block 99 Plot 2063 had two


- 5 equitable owners occupying the lower part of the suit land and it was agreed that the family of the Late Alimando Mukasa was their landlord. The plaintiff claims that the 4 th defendant/ applicant used the opportunity of the documents of the certificate of title and signed the transfer forms to connive with the Administrators of the Estate of the Late Tamale he earlier aided financially to intermeddle with the estate of the - 10 late Alimando Mukasa Ssemakula and to fraudulently subdivide the land which was for the estate of the Late Alimando Mukasa Ssemakula to defeat the family's interest in the suit land.

In reply, the defendants/ applicants filed a joint written statement of defence filed in court on 5th November 2021 wherein they denied the contents of the plaint and it

- 15 was contended that the Late Alimando Mukasa had no legal interest on the suit land belonging to the Late Tamale John. It was further contended that the 4th defendant on realizing that the family of Alimando would possibly be evicted from the suit land, negotiated for a legal interest with the beneficiaries of the Estate of the Late Tamale John and the 4th defendant managed to save the same. That the kibanja which - 20 was occupied initially by the late Alimando Mukasa was found to be around 0.2150 hectares and it's still currently available untampered by anyone.

## *Representation*

The applicants were represented by Counsel Tumusiime Justus while the respondent was represented by Mbuga Sekyanda Ivan.

### 25 **Decision of court**

Both counsel made oral submissions in court and the same shall be considered. The main issue for resolution is *whether the plaint in the main suit vide HCCS No. 902 discloses a cause of action against the defendants?.*


### 5 *Counsel's submissions*

Mr. Tumusiime, counsel for the applicant submitted that the major point of contention is on the agreement marked "SMA" which is an agreement for sale. Counsel further submitted that the said agreement does not bear a block number of the land being purchased and neither does the same bear the buyer's signature.

10 In addition, counsel for the applicants argued that the buyer which is the family of Alimonda Mukasa had no capacity to enter into such an agreement and neither does the agreement show measurements of the land being purchased. Counsel concluded that the said agreement contravenes Section 10 (1) and 18 of the Contracts Act.

It was Counsel's argument that this agreement lacks the element of capacity since

15 the family of Alimonda Mukasa is not a legal entity. Counsel relied on the case of **Greenboat Entertainment Ltd versus City Canal of Kampala HCCS No. 580 of 2003 (Commercial Court) at page 2 and 5 of the Judgment** where Justice Bamwine held that when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable, there must be capacity to 20 contract, intention to contract, consensus, valuable consideration, legality of purpose and sufficient certainty of term. If in any given transaction, any of them is missing, it could be called something else other than a contract.

Counsel proceeded to submit that in the instant case, there is no capacity to contract and there is no block or plot being referred to. Counsel also made reference to the

25 case of **Edward Gatsinzi & Anor versus Lwanga Steven (Land Division) Civil Suit No. 690 of 2002** where,Justice Bashaija held that where sale of land is involved, the purchase cannot be by mere presumption. There must be actual purchase with a written memorandum or note duly signed by the parties and the failure to prove the same would render the said claim baseless. Counsel contended that the said


5 agreement does not bear the signature of the purchaser. In conclusion, counsel for the applicants submitted that the agreement marked SMA is invalid and void and as such cannot confer any legal right to the plaintiff in the main suit.

Secondly, counsel for the applicants submitted that the said agreement referred to paragraph 4 (l) of the plaint is not attached the pleadings and the same offends Order

10 7 rule 14 (1) of the Civil Procedure Rules. Counsel further submitted that Order 7 rule 14 (2) of the Rules is very clear on the list of documents have to be annexed.

Counsel for the applicant cited the case of **Ugaflin Ltd versus Beatrice Kiwanuka HCMA No. 682 of 2014**, where Justice Eva K Luswata held that by failing to show or attach that important proof to her pleadings, the respondent could not show by her 15 plaint that the applicant owed her a duty, which they breached when they purported to transact in the suit land without her consent. In conclusion, counsel submitted that by failing to annex the sale agreement to the plaint as refereed to in paragraph 4(l), the respondent had failed to prove his right over the suit land. Counsel prayed that the suit be dismissed since the same is grounded on illegal agreements which do not 20 confer any proprietary rights.

In reply, Mr. Mbuga, counsel for the respondent raised a preliminary point of law to the effect that Counsel Irumba who swore the affidavit in reply was not capable to do the same since is not a party to the main suit or even the application. Counsel also submitted that the deponent to the affidavit in reply never attached proof of 25 instructions to depose the affidavit. Counsel proceeded to argue that Order1 rule 12 (2) of the Civil Procedure Rules directs that authority must be given in writing by any of the parties to plead or act for such parties, which authority must be filed together with the pleadings.


- 5 Counsel argued that this action contravenes Rule 9 of the Advocates (Professional Conduct) Regulations which forbids any advocate from representing the parties and at the same time become a witness. Counsel argued that this action makes the earlier affidavit incurably defective. - Counsel for the respondent relied on the case of **Banco Arabe Espanol versus** 10 **BOU,** wherein it was held that an affidavit sworn by Counsel was defective and should not be allowed in evidence. Counsel also cited the case of **David Mutyaba Segulate & 2 ors versus Elvas Sebyatika & Anor HC Civil Revision No. 5 of 2018,** where it was held that an affidavit is defective if the depositor does not show authority of swearing an affidavit on behalf of others. Such an affidavit is 15 incompetent. The entire affidavit in support of the application is defective and the application is incompetent.

Counsel also made submissions on the merits of the case. It is counsel's argument that there is a cause of action which requires adjudication. Counsel further submitted that in order to determine whether a plaint discloses a cause of action, court ought to

20 look at the plaint and the annextures thereto as per the case of **Kapeka Coffee Works Ltd versus NPART Court of Appeal Civil Appeal No. 3 of 2000.** Counsel further submitted that counsel for the plaintiff only concentrated on one annexture isolating all the other annextures.

In addition, Counsel submitted that the actions of the defendants were fraudulent and 25 fraud was particularly pleaded. Counsel further cited the case of **Patrick Iyamuremye versus Steven Kwingira & 3 Others C. S No. 118 of 2019,** where court held that there was a clear case of action in fraud, illegality and collusion against each of the defendants. Counsel for the respondent argued that the plaintiff/ respondent's cause of action is premised on fraud and he prayed that the court find 30 that the suit plaint discloses a cause of action and that the application be dismissed.

**7 |** P a g e


- 5 In rejoinder, counsel for the applicant submitted that the issue that Counsel Irumba is not competent to swear the affidavit in support cannot stand since Regulation 9 of the Advocates (Professional Conduct) Regulations provides exceptions where an advocate can adduce evidence in their client's case and the instant application lies within the said exceptions. Counsel further rejoined that Counsel Irumba led - 10 evidence on legal and non-contentious facts and the same submission was supported by the decision in **Irene Damani & 2 ors versus Damanico Properties Limited HCMA No. 1074 of 2021.**

In respect of Annexture "A" and paragraph 4 (l), counsel for the applicant submitted that these two agreements form the crux of the plaintiff's claim and since the same

15 are invalid, the plaintiff cannot derive any right from the same hence the plaint does not disclose any cause of action.

## *Resolution*

I shall commence with the preliminary point of law raised by Counsel for the respondent. The gist of the respondent's point of law is to the effect that

20 Counsel Irumba, the deponent of the affidavit in support of the application is an Advocate in the firm representing the applicant.

**Regulation 9 of the Advocates (Professional Conduct) Regulations** prohibits an advocate's personal involvement in a client's case. The same provides as follows;

*"No advocate may appear before any court or tribunal in any matter* 25 *in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear; except that this* 30 *regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on a formal or non-contentious*

 5 *matter or fact in any matter in which he or she acts or appears. (*emphasis on the highlighted part)*"*

The affidavit in support of the application before me was deponed by Counsel Robert Irumba. It was counsel for the applicant's submission that Mr. Irumba is a partner in

10 Tumusiime Irumba & Co Advocates. According to the record of court, the applicants were represented by Tumusiime Irumba & Co Advocates in the instant application and the main suit.

**Order 19 rule 3 (1) of the Civil Procedure Rules** provides thus;

**Matters which affidavits shall be confined.**

15 *(1)Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated."*

Therefore, the matters deponed to should be those within the deponent's personal 20 knowledge. This does not exclude advocates. In the case of **Muhindo Sylvester versus Kasese District Local Government HCMA No. 31 of 2023, Hon. Justice Vicent Wangona** relied on the case of **Mbarara** *Municipal Council versus Jetha Brothers Ltd Supreme Court M. A No. 10 of 2021,* where it was thus stated, '*In my view, affidavits can be sworn by anyone to prove a set of facts and an advocate is*

25 *not an exception. An advocates is therefore, not prohibited to swear an affidavit where necessary especially on matters that are well within his knowledge.*

In the instant case, Counsel Irumba is a partner in Tumusiime Irumba & Co Advocates, the firm representing the applicants. I have critically perused the affidavit in support of the application and it is my finding that the depositions therein


5 relate to technical legal matters relating to cause of action and the law of contract, legal facts that are in an Advocate's personal knowledge as a result of professional legal training. In the case of **Patflin versus Ali & ors [2005]1 EA 339,** it was held that there is no legal prohibition against an advocate who of his or her own knowledge can prove some facts, to state them in an affidavit on behalf of his or her 10 client.

The general result of **Regulation 9 (supra),** is that the court must first ascertain whether the matter is in itself formal or non-contentious on the matters of fact as stated in the affidavit. (See **Uganda Development Bank versus Kasirye Byaruhanga & Co Advocates SCCA No. 35 of 1994).** In line with the above legal 15 principles, I have examined the affidavit sworn by Counsel Irumba Robert and I am convinced that the facts disclosed therein are derived from personal legal knowledge acquired through legal training as a lawyer. Secondly, whereas, Counsel Irumba is a partner in the law firm representing the applicants, in the instant application, Mr. Irumba is not counsel in personal conduct but rather merely swore the affidavit in 20 support of the application as a lawyer with personal knowledge to prove the legal issues raised in the application.

Therefore, I find no merit in this preliminary point of law raised and the same is overruled.

I shall now proceed to the merits of this application. The main issue for resolution

25 in this application is *whether the plaint discloses a cause of action.* **Order 7 (1) (e) of the Civil Procedure Rules** requires that a plaint must contain facts constituting the cause of action. Furthermore, the same Order **rule 11** states that a plaint which does not disclose a cause of action must be rejected. In the case of **Ismail Serugo versus Kampala City Council & Attorney General Supreme Court**


5 **Constitutional Appeal No. 2 of 1998,** the Supreme Justices stated in agreement that where a plaint does not disclose a cause of action, it is mandatory for a court to strike it out under Order 7 rule 11 (a). The Learned Justices of the Supreme Court went ahead to hold that, "*In considering whether a plaint discloses a cause of action or reasonable cause of action, the court must consider only the plaint and annextures* 10 *without other pleadings."*

The Supreme Court distinguished between a *cause of action* and a *reasonable cause of action*. It was noted by Justice Wambuzi (CJ Emeritus) *that objections on the ground of lack of a reasonable cause of action can be taken under Order 6 rule 29 of the Civil Procedure Rules and in that case only the plaint must be looked at.*

- 15 *The Supreme Court went ahead to observe that, where a plaint discloses no reasonable cause of action, the court's discretion is discretionary and must be exercised only in plain and obvious cases. (See Auto Garage versus Motokov No.3) 1971 EA 514***.** Therefore, non-disclosure of a reasonable cause of action is distinct from non-disclosure of a cause of action. - 20 In the case of **Uganda Aluminum Ltd versus Restetuta Twinomugisha C. A. C. A No.22 of 2000,** cause of action was defined as every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain judgment.

The Supreme Court in **Attorney General versus Tinyefuza Constitutional Appeal**

25 **No. 1 of 1997,** *while referring to Mulla on the Indian Code of Civil Procedure, defined cause of action as, "every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant".*


- 5 *Wambuzi C. J. went ahead to state that, it must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all material facts on which it is founded. It does not comprise evidence necessary to the facts but every fact necessary for the plaintiff to prove to enable him to obtain a* - 10 *decree. Everything which if not proved would give the defendant a right to an immediate judgment must be part of the cause of action. It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit."*

Therefore, in order to disclose a cause of action, the facts in the plaint must show a

- 15 claim of right as against the defendant, an allegation that the right of the plaintiff has been violated, and that the defendant is liable. (**See Auto Garage versus Motokov supra).** Owing to the above authorities, in order to determine whether the plaintiff has any cause of action against the defendants, I shall look at the plaint and any annextures thereto. - 20 According to paragraphs 3 and 10 of the Plaint in the main suit vide HCCS No. 902 of 2021, the plaintiff's claim against the defendants is fraud. It is counsel for the applicants' submission that the gist of the respondent's suit is premised on sale agreement marked as annexture "SMA".

I have critically examined the plaint and the annextures thereto. In paragraph 4 (d), 25 the plaintiff (respondent herein) claims that his late father Alimando Mukasa Ssemakula owned a kibanja (equitable) interest at Kiti Busimbo in Waksio District. It was further claimed that the plaintiff's late brother Mutyaba John, the son to the Late Alimando Mukasa Ssemakula commenced the process of securing a registered interest in the suit land which was formerly a kibanja interest by agreeing to forfeit

30 part of their kibanja for a lesser acreage at a consideration of Ug. Shs. 300,000


5 (Uganda shillings three hundred thousand) and a sale agreement was annexed as 'SMA'.

The plaintiff/ respondent also contended that upon the death of the Late Tamale, the 1 st, 2nd, and 3rd defendants/ applicants applied and were granted letters of administration for the deceased's estate and the 4th defendant between June 2012 and September aided the 1st, 2nd and 3rd 10 defendants/ applicants with funding in procuring letters of administration. The plaintiff further averred that after the grant of the letters of administration, the administrators of the Late Tamale approached the plaintiff/

respondent's family in the presence of the 4th applicant to produce proof of ownership and occupation in the land so as to issue the certificate of title for the 15 Alimando family occupied land/ kibanja.

The plaintiff/ respondent claims that an agreement was reached by the family of the late Alimando Mukasa Ssemakula and the Administrators of the Estate of the Late Tamale where it was decided the 2.5 acres of the kibanja would be forfeited as consideration for issuing a certificate of title for the remaining 2 acres in favor of the

20 Estate of the Late Alimando Mukasa Ssemakula and the same was issued in 2014 for land comprised in Kyadondo Block 99 plot 2063 land at Busimbo measuring approximately 0.802 hectares.

That in the absence of an Administrator, the family of the Late Alimando Mukasa Ssemakula appointed Kasoma Charles, Nabatanzi Flavia and Mutyaba John Bosco

25 as the family Trustees in whose names the land would be registered in, to hold the same for the benefit of all the children and grandchildren of the Late Alimando Mukasa Ssemakula.

That the 1st, 2nd and 3rd applicants/ defendants informed the area LC Chairperson that the certificate of title of land comprised in Kyadondo Block 99 Plot 2063 had two


5 equitable owners occupying the lower part of the suit land and it was agreed that the family of the Late Alimando Mukasa was their landlord. The plaintiff/respondent claimed that the 4th defendant/ applicant used the opportunity of the documents of the certificate of title and signed the transfer forms to connive with the Administrators of the Estate of the Late Tamale he earlier aided financially to 10 intermeddle with the estate of the late Alimando Mukasa Ssemakula and to fraudulently subdivide the land which was for the estate of the Late Alimando Mukasa Ssemakula to defeat the family's interest in the suit land.

It is my observation that the plaintiff's claim against the defendants is fraud and the contents of paragraph 4 are merely stated facts meant to expound on the said claim.

- 15 The validity or legality of the said sale agreement marked annexture "SMA" is an issue that requires evidential proof based on the required standard of proof in civil cases. This cannot be done at this stage of the matter. During thetrial process and admission of documents, the issue whether annexture "SMA" attached to the plaintiff is admissible or not should be raised and addressed by court. - 20 In addition, the contents of the said annexture are untranslated which means that the same is not in the language of court contrary to Section 88 of the Civil Procedure Act (Revised Laws of Uganda, 2023) and as such the contents of the same cannot be interpreted or even understood by Court.

Regarding paragraph 4 (l) which refers to an agreement not disclosed by the plaintiff 25 in form of documents as required by the provisions of Order 7 rule 14(1) of the Civil Procedure Rules, it should be noted that the facts of this case are distinguishable from the facts in the case of **Ugafin Ltd versus Beatrice Kiwanuka (Supra).** In the Ugafin case, the plaintiff had premised her cause of action on the existence of a marriage and she did not attach the said marriage certificate to the plaintiff in order

30 to prove that the land transaction complained about had been entered without spousal


5 consent. In the instant case, the respondent filed Civil Suit No. 902 of 2021 relying on several documents and the first one being annexture "SMA" where he stated that an agreement had been entered into between Mutyaba John and the landlord Tamale John. Much as the respondent did not attach a written agreement as stated in paragraph 4 (l) of the plaint, other documents were attached including the one where 10 the plaintiff alleged that an agreement had been entered into between his brother and the land lord. This implies that the provisions of Order 7 rule 14 of the Civil

It is trite that fraud must be specifically pleaded and proved on a standard slightly higher than a balance of probabilities but not as far as beyond reasonable probability.

Procedure Rules were complied with by the respondent/plaintiff.

15 Fraud was stated as a cause of action in paragraph 6(a) of the plaint where the plaintiff sought a declaration that the certificates of title for land comprised in Kyadondo Block 99 plots 3959, 3960, 3961 and 3962 formerly plot 2223 and 2063 were fraudulently obtained.

Therefore, I am satisfied that the cause of action in the main suit is fraud which is

20 legally permissible. Whether this cause of action is reasonable or can be sustained is an issue for determination in the main suit after the same is heard on its merits.

In conclusion, I order as follows;

- *a. This application is dismissed.* - *b. Civil Suit No. 902 of 2021 is set down for mention and directions on 13th day of* - 25 *November 2024 at 9.30am.* - *c. Costs in the main cause.*

## **I so order.**


Ruling delivered at High Court, Land Division via ECCMIS this 2<sup>nd</sup> day of October, $\mathsf{S}$ $$


**Judge** $10$