Mukwaya Paul v Majwala Fred and Another (Civil Suit No. 30 of 2024) [2025] UGHC 533 (14 July 2025)


### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA SITTING AT MPIGI CIVIL SUIT NO. 30 OF 2024**

**MUKWAYA PAUL===================================== PLAINTIFF**

#### **VERSUS**

**MAJWALA FRED====================================DEFENDANT**

#### **AND**

**1. MAJWALA FRED )================================COUNTER PLAINTIFF (Beneficiary of the estate of Yafesi Kyanzi**

#### **VERSUS**

- **1. MUKWAYA PAUL** - **2. GAAYO KASOZI==============================COUNTER DEFENDANTS**

### **BEFORE: HON. LADY JUSTICE DEEPA VERMA**

#### **RULING ON PRELIMINARY OBJECTION**

#### **Background**

The Plaintiff filed a suit for recovery of Kibanja land measuring approximately 12,731 feet, located at Kyevunze Village, Bulwado, Kabulasoke Sub-County, Gomba District, forming part of Gomba Block 166, Plot 1.

He alleges that he purchased the suit land from Gaayo Kasozi on 13th April, 1997, for UGX 1,300,000 (Uganda Shillings One Million three hundred shillings) and enjoyed quiet possession until 2015, when the Defendant- trespassed, leading to criminal charges against the Plaintiff in Criminal Case No. 257 of 2015, from which he claims to have been acquitted on 16th January, 2018.

The Plaintiff seeks a declaration that he is the lawful and rightful owner of the suit land/kibanja, a declaration that the Defendant is a trespasser on the Suit land/kibanja, an order for recovery of the suit land from the defendant, an eviction order directing the Defendant to vacate the suit property, an order of permanent injunction, general damages and costs.

The 1 st Defendant filed a Written Statement of Defence, Counterclaim and later joined Gaayo Kasozi as the 2nd Counter Defendant. He asserts that the Suit land is part of the unadministered estate of the late Yafesi Kyanzi, that no sale occurred between the late Yafesi Kyanzi and Gaayo Kasozi in 1973 as alleged, and that the 1997 sale to the Plaintiff was unauthorized, illegal, and void. He claims continuous possession of the suit kibanja by estate beneficiaries since 1982 and alleges that the Plaintiff trespassed in 2015, destroying crops, leading to the Plaintiff's prosecution vide Criminal Case No. 257 of 2015 (Uganda Vs Mukwaaya Paul). In his counterclaim, he seeks declarations that the 1997 sale of suit land to the Plaintiff is null and void abnitio on grounds of fraud, illegalities, unlawfulness and acts of intermeddling in the estate of the late Yafesi Kyanzi, a declaration that the suit land forms part of the estate of the Late Yafesi Kyanzi, a declaration that all beneficiaries of the estate of the late Yafesi Kyanzi are equally entitled to an equal beneficial share and or interests in the estate property of the late Yafesi Kyanzi inclusive of the suit land, a declaration that the transaction between the counter defendants in respect of the suit land without the consent and authority of the beneficiaries of the estate of the late Yafesi is null and void abnitio on grounds of illegality, a declaration that the acts of the 1st Counter Defendant in attacking the counter plaintiff on the suit land in the year 2015 with the intention of forcing him out, evicting and dispossessing the counter plaintiff from the suit land amounts to acts of trespass, an order for cancellation of the purported sale/purchase agreement executed by the counter defendants in respect

of the suit land, an order for a permanent injunction restraining the counter defendants from any acts of intermeddling, trespassing and any kind of dealing with the suit land, general damages, punitive and exemplary damages, interest and costs of the suit and dismissal of the Plaintiff's suit

The Plaintiff/1st counter defendant filed a response to the counterclaim, reiterating his 1997 purchase from Gaayo Kasozi the 2nd Counter defendant, who allegedly acquired the land from Yafesi Kyanzi in 1973, and denying the estate's ownership of the suit land.

The 2nd Counter defendant in his Written Statement of Defence to the counter claim, pleads that the suit land is part of Yafesi Kyanzi's unadministered estate, confirms his role as heir without letters of administration, and denies selling the land to the Plaintiff/1st counter defendant.

At the hearing of the case on 29th May 2025, the Defendant/Counter Plaintiff informed Court that he has Preliminary Objections to raise. Court directed the parties to file their written submissions within the time lines set, which were complied with, hence this ruling.

In their submissions Counsel for the Defendant/Counter Plaintiff raised the following issues for determination by this Court:

- 1. Whether there are any admissions in the Pleadings - 2. Whether the plaint raises a cause of action

#### **Representations.**

The Counter Plaintiff/Defendant was represented by Counsel Wandabwa Emmanuel of M/s R. Nsubuga & Co. Advocates and the Plaintiff/1st Counter Defendant was represented by Nakasinde Mary Rose holding brief for Sebugwao Andrew of M/s ASPA Advocates

#### **Resolution of Issues**

#### **1. Whether there are any admissions in the Pleadings**

The present preliminary objection by the Defendant/Counter Plaintiff is premised on an admission in the pleadings seeking for judgment on admission, pursuant to the provisions of Order 13 rule 6 of the Civil Procedure Rules (CPR). The said Order provides:

*"Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon the application make such order, or give such judgment, as the court may think just."*

The phrase "either on the pleadings or otherwise" in Rule 6 is significant, as it contemplates admissions arising not solely from formal pleadings but through alternative avenues. These may include documents executed by the parties whether annexed to pleadings or not, or oral or written statements made during proceedings before the Court.

The term "pleadings" in this context refers to the formal documents filed before the Court prior to the issue of admission, including the Plaint, Written Statement of Defence, Counterclaim. Where any such pleading contains an unequivocal admission, the opposing party is entitled to seek judgment based on that admission. However, admissions may also emerge outside the pleadings, as contemplated by the aforementioned provisions.

The Court's discretion to grant judgment on admission is to be exercised judiciously, reserved for cases where the admissions are so plain and unequivocal as to constitute an acknowledgment of liability, thereby entitling the applicant to judgment- *Connie Watuwa V Attorney General HCMA No. 544 of 2020; Future Stars Investment (U) Ltd v. Nasuru Yusuf (HCCS No. 0012 of 2017).*

Taking into consideration the above legal principles, this Court shall proceed to evaluate the admissions, if any, presented in this matter, whether contained within the pleadings or otherwise, to determine whether they meet the requisite threshold of clarity and specificity to warrant the grant of judgment on admission.

In the instant case, the Defendant/Counter Plaintiff argues that admissions in the pleadings, particularly in the 2nd Counter Defendant's Written Statement of Defence paragraphs 5(i), (ii), (viii)), raise admissions on his part. The 2nd Counter defendant in those paragraphs states that land claimed by the Plaintiff/1st counter defendant is and has throughout been part of the estate of the late Yafesi Kyanzi, that the children of the late

Yafesi Kyanzi since his death have been jointly using all the properties of the deceased for cultivation of both cash crops and food crops and that upon the death of Yafesi Kynazi the 2nd Counter defendant was installed as his heir and that the 2nd counter defendant has never sold or dealt on any land with the Plaintiff/1st Counter defendant as claimed by the Plaintiff/1st counter claimant and that the Plaintiff's/1st Counter defendant's claims are a total lie intended to deprive the children and grandchildren of the late Yafesi Kyanzi of their beneficial interests in the suit land.

The Defendant/Counter Plaintiff contends these admissions negate the Plaintiff's/1st Counter defendant's claim of purchasing the Suit Land in 1997 from the 2nd Counter Defendant.

The Plaintiff/1st Counter defendant argues that he has never been served with the said 2 nd counter defendant's written statement of defence, the 2nd Counter defendant has never attended court from the inception of this matter and has neither filed witness statements nor a trial bundle. The Plaintiff/1st Counter defendant further argues that he has filed as evidence on court record a sale agreement attached to his Plaint and also in his trial bundle which clearly shows that Gaayo Kasozi (the 2nd Counter Defendant) sold the suit kibanja to him in 1997 and that he signed on that agreement together with his wife Nannyonjo Tereza whose witness statement is already in Court and that the Plaintiff/1st Counter defendant's witnesses whose witness statements are all on court file are ready to testify confirming that indeed the 2nd counter defendant sold the suit land to the Plaintiff/1st counter defendant.

As previously emphasized, for an admission to warrant judgment under the relevant legal provisions, it must be clear, unambiguous, unequivocal, and affirmative. If an alleged admission lacks precision or clarity, it would be inappropriate to rely on such a provision for relief. This principle was articulated in *Future Stars Investment (U) Ltd v. Nasuru Yusuf* (HCCS No. 0012 of 2017).

Consequently, the Court's discretion to grant judgment based on an admission of facts is to be exercised with caution, limited to instances where the admissions are so evident and unequivocal that they constitute a clear acknowledgment of liability, thereby justifying judgment in favor of the applicant. This position is reinforced by the precedent in *John W.*

## *Katende and Another v UCC Misc. Application No.99 of 2022 (arising out of Civil Suit No. 275 of 2019)*

In the instant case, the admissions referred to by the Defendant/Counter Plaintiff in the 2 nd Counter Defendant's Written Statement of Defence, paragraphs 5(i), (ii), (viii)) are not sufficiently clear, unambiguous, and unequivocal to warrant judgment but most importantly they are not in the Plaintiff's pleadings. The Plaintiff's/1st Counter Defendant's pleadings introduce a sale agreement under paragraph 5(a) as Annexure "A", an acquittal judgment as Annexure "B" and witness statements that all point to the opposite direction of admissions.

The Plaintiff/1st Counter defendant's claims under paragraph 5(b and c) of the plaint that he purchased the suit land and took possession of the suit land since 1997 and started utilizing it by planting coffee and Banana plantations until 2015 when he was approached by the Defendant/counter plaintiff who forcefully entered into the suit land and started utilizing it without the Plaintiff's permission do not amount to admissions in any way that warrant a judgement. These issues require a full hearing.

The issues raised are not plain and obvious, they require presentation of evidence, examination of witnesses, cross examination where necessary especially given that this case raises complex questions such as facts relating to removal of possession of one of the parties and validity of the 1997 sale agreement as presented by the Plaintiff.

It is a well-established principle of law that a judgment on admission is not a matter of right but *lies within the discretion of the Court*. The Court in exercising such discretion must establish that the "admission" as presented by the person relying on Order 13, Rule 6 is clear, unambiguous, unequivocal, and positive. In the event that the purported admission lacks clarity or specificity this Court cannot enter Judgment under this Order. This Court having perused the pleadings and all documents on record exercises its discretion and overrules this Preliminary Objection.

#### **2. Whether the plaint raises a cause of action**

Order 7, Rule 11(a) of the Civil Procedure Rules empowers court to reject a plaint if it fails to disclose a cause of action. This rule serves as a critical gatekeeping mechanism to ensure that only claims with a legally cognizable basis proceed to adjudication, thereby safeguarding judicial resources and preventing frivolous litigation.

A cause of action may be understood as the aggregate of facts that, when proven, give rise to a legally enforceable claim in a court of law. It represents a recognized legal wrong that vests in the plaintiff a right to seek judicial redress. For a cause of action to be established, the plaintiff must demonstrate each constituent element of the claim, and all such elements must be satisfied to justify court intervention. In essence, a cause of action encompasses every material fact that the plaintiff is required to prove to succeed in their claim or, conversely, every fact that, if denied by the defendant, the plaintiff must substantiate to secure a favorable judgment.

The disclosure of a cause of action is satisfied when it is demonstrated that the plaintiff possessed a legal right, that this right was infringed by the defendant's actions or omissions, that such infringement resulted in damage to the plaintiff, and that the defendant bears liability for the same. This principle was affirmed by the Supreme Court in *Tororo Cement Co. Ltd v. Frokina International Limited* (SCCA No. 2 of 2001), which underscored the necessity of establishing these elements to sustain a cause of action.

In determining whether a plaint discloses a cause of action, the court's inquiry is confined to an examination of the plaint itself, together with any documents annexed thereto that form an integral part of the pleading. This approach ensures that the assessment is based solely on the plaintiff's averments, without reference to extraneous materials or defenses that may be raised subsequently. The precedent in *Kapepeka Coffee Works Ltd v. NPART* (CACA No. 3 of 2000) reinforces this position, emphasizing that the sufficiency of a cause of action is to be evaluated exclusively on the contents of the plaint and its attachments.

It is a settled principle of law that a cause of action arises when the plaintiff's legal right is infringed by the acts or omissions of the defendant. This infringement must be of such a nature that it gives rise to a justiciable claim, capable of being remedied through judicial intervention. The court's role in this regard is to ascertain whether the facts pleaded, if taken as true, establish a legally recognized basis for the plaintiff's claim. Only where the


plaint patently fails to disclose such a basis, the court may exercise its discretion under Order 7, Rule 11(a) to reject it, thereby ensuring that the judicial process remains focused on claims with substantive merit.

In the instant case, the Defendant/Counter Plaintiff avers that the 1st counter defendant/Plaintiff has no nexus to the suit land and as such has no claim of right since the suit land belongs to the estate of the late Yafesi Kyanzi which is yet to be administered. That he is in possession of the suit land and has of right to enjoy the suit land since he is among the beneficiaries of the estate of the late Yafesi Kyanzi.

The Plaintiff/ 1st Counter Defendant on the other hand avers that he has a right as clearly stated in paragraphs 5(a) and (b) of the plaint that he purchased the suit land in 1997 evidenced by a sale agreement attached to the plaint as annexure A. He further alleges that he took possession of the said suit land and started utilizing it by planting banana and coffee which plantation were destroyed by the Defendant/counter plaintiff and he avers that he was dispossessed of the said suit land in 2015 by the Defendant/Counter Plaintiff who was claiming ownership causing Plaintiff's arrest for which he was acquitted.

The Plaintiff's allegations of purchase, supported by a sale agreement, and forceful entry by the Defendant on to the suit land raises a cause of action for trespass and ownership.

I am therefore in agreement with counsel for the Plaintiff that the plaint discloses a cause of action under Order 7 Rule 1(e) of the Civil Procedure Rules. Thus, the preliminary objection is overruled.

The matter shall proceed to a full hearing and Costs of this application shall be in the cause.

I so order.

Delivered at Mpigi this 14 th day of July 2025.

**Hon. LADY JUSTICE DEEPA VERMA**

**Acting Judge**