Namatovu v Bukenya (Miscellaneous Application 2870 of 2024) [2024] UGHCLD 291 (9 December 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISC APPLICATION NO. 2870 OF 2024 (ARISING FROM CIVIL SUIT NO. 1147 OF 2023)**

## **IMELDA NAMATOVU :::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

### **EMMANUEL BUKENYA**

**(suing through his lawful Attorney) ::::::::::::::::::::: RESPONDENT**

## **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

## *Introduction;*

- 1. The Applicant brought this application by chamber summons under section 37 Judicature Act, Section 98 of the civil procedure Act, order 6 rules 28,29 and 30 and Order 52 rules 1,2 and 3 of the civil procedure rules for orders that; - i) The plaint vide Civil Suit No. 1147 of 2023 be struck out for it does not disclose any cause of action against the defendant. - ii) Costs of the application be provided for.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That the respondent filed Civil Suit No. 1147 of 2023 against the applicant herein. - ii) That I am the lawful occupant and owner of the Kibanja land measuring approximately 3 acres comprised in Kyadondo Block 203 Plot 1493 LRV 1661 herein the suit land. - iii) That the respondent also owns a plot on Kyadondo Block 203 Plot 1493 LRV 1161. - iv) That the certificate of title for land on which the respondent and I own plots is registered in the names of David Kibuuka Mateega. - v) That the respondent has not demonstrated by his plaint a right to legal interest in the land comprised in Kyadondo Block 203 Plot 1493 LRV 1161.

### *Respondent's evidence;*

3. The application is responded to by an affidavit in reply deponed by Wasswa Francis the lawful attorney of the respondent which briefly states as follows;

- i) That the issues raised by the applicant in his application are ones that root to substance which are to be resolved in the main suit - ii) That I have a right on the suit land which has been violated by the applicant and I have greatly suffered damage hence my plaint discloses a cause of action - iii) That whatever is stated herein is true and correct to the best of my knowledge.

## *Representation;*

4. The applicant was represented by Counsel Sentamu Wilson holding brief for Stewart Kamya of M/S Mbeeta Kamya & Co Advocates whereas the respondent was represented by Counsel Derrick Lutalo and Teddy Nangobya of M/S Luzige, Lubega, Kavuma and co. advocates.

## *Issues for determination;*

*Whether Civil Suit No.1147 of 2023 discloses a cause of Action against the applicant?*

## *Resolution and determination of the issue;*

- 5. Upon perusal of the affidavits by both parties, I am of the view that the main gist of this application is whether the plaint vide Civil Suit No.1147 of 2023 discloses a cause of action against the applicant/defendant? - 6. I do take notice of the laws under which the applicant moves court which are sections 37 of the judicature act, section 98 of the civil procedure Act and Order 6 rules 28,29 and 30 of the civil procedure rules. However, parties should take note that in adjudicating upon the said provisions, the discretion lies within the powers of court**.** *(See; Crane Bank Ltd (in receivership vs. Sudhir Ruparelia & another CACA No.282/2019).* - 7. Upon perusal of the plaint vide Civil Suit No.1147 of 2023 under paragraph 4 states the facts of the plaintiff's cause of action against the defendant which briefly state that; around the year 2018, the plaintiff commenced a construction of his house in his kibanja but the defendant without any color of right blocked the access road by constructing a perimeter wall fence. - 8. That the plaintiff created another access road to his Kibanja but it was also blocked by the defendant leaving no any other alternative way for the plaintiff to access the road.

- 9. Delving into how the said access road was created, whether it's in existence or whether it was blocked would be taking this court into the merits of the main suit. - 10. The applicant's prayers in the instant application are contentious and complex in nature that cannot be determined just by a mere look at the pleadings of the parties without giving an opportunity to the parties to adduce evidence in court. - 11. The matters and issues in contention in the instant application have a bearing to the main suit which is still pending before this honourable court. These are matters and issues of evidence which need proof in court by adducing evidence by both parties. - 12. It appears to me that the applicant desires to opt for a short cut process of resorting to trial by affidavit evidence because the issues raised by the applicant are to be best resolved upon hearing and analysing evidence in the main suit. - 13. This honourable proceeding to pronounce itself on the merits of the main suit without hearing and according the parties an opportunity to adduce evidence would be shutting down the doors of justice to the parties in the suit.

- 14. This court is of the finding that whether the main suit discloses a cause of action or not can be framed as the first issue in the joint scheduling memorandum and court will proceed to pronounce itself on the said issue upon analysing of evidence. - 15. In the result, the instant application is hereby dismissed by this court with no orders as to costs.

## **I SO ORDER.**

### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

### **09/12/2024**

### **Delivered Electronically via ECCMIS on the 9th day of**

## **Dcember 2024.**