Ochaloi v Mulindwa (Civil Suit No. 6 of 2022) [2022] UGHCCD 241 (1 November 2022)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL SUIT NO. 006 OF 2022 (A/M HCT 01 - CV--AC - 038 OF 2014) **HIMMORPHICAL PLAINTIFF** MARY OCHALOI :::::::::::::::: **VERSUS**

# MULINDWA JOHN KATABARWA :::::::::::::::::::::::::::::::::::

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# BEFORE HON. JUSTICE VINCENT WAGONA **RULING**

### Introduction:

This ruling follows an oral application by the plaintiff's Counsel to have a judgment on admission entered against the Defendant. Counsel for the plaintiff orally submitted that the defendant admitted all the claims by the plaintiffand thus it was not necessary to go through a trial and that court should be pleased to enter a judgment on admission against the defendant by virtue of the admission of the plaintiff's claim per the Written Statement of Defense on record.

#### **Background:** $\overline{0}$

The plaintiff filed this suit against the defendant seeking revocation of the letters of administration granted to the defendant over the estate of the late Katabarwa Yosamu in HCT 01- CV - AC- -38 of 2014, an order compelling the defendant to surrender to Court the said letters, an order for a comprehensive and true statement of account of all dealings with the estate of the late, an order for distribution of the estate of the late Katabarwa Yosamu to all the lawful beneficiaries, a grant of the


letters of administration of the estate to the plaintiff, a permanent injunction, general damages and costs of the suit.

The defendant on the other hand made a Written Statement of Defense in which under paragraph 3 he denied the claims by the plaintiff and the reliefs sought $\mathsf{S}$ arguing that the plaint lacks merit and legal basis. The plaintiff also denied paragraph 5 of the plaint which talked about the defendant wasting the estate if he kept as an administrator of the estate. The defendant though admitted paragraph 4 of the plaint which among others confirmed the beneficiaries under the estate of the late Katabarwa Yosamu who included the plaintiff. The same paragraph stated $10$ that the defendant has never distributed the estate of the late, which was also admitted. The defendant further admitted the contents of paragraph 4(g) where it was stated that the late had two houses that were demolished under unclear circumstances and also admitted paragraph 4(h) where it was contended by the 15

plaintiff that the defendant without any color of right and without the consent from the rest of the beneficiaries to the estate went ahead and constructed on the estate hence depriving the rest of the beneficiaries including the plaintiff from obtaining the shares from the estate.

It was on the basis of the admission of the facts in paragraph 4 that counsel for the 20 plaintiff made an oral application to have a judgment on admission entered against the defendant

### **Issues:**

(a) Whether or not judgment on admission should be entered in favour of the 25 plaintiff.


### (b)Remedies

### Representation:

Counsel Muhumuza Samuel of M/s Legal Aid Project appeared for the plaintiff and M/s Lawgic Advocates represent the defendant.

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### **Resolution:**

Issue One: Whether or not judgment on admission should be entered in favour of the plaintiff

Order 13 of the Civil Procedure Rules. Order 13 rule 6 states thus: $10$

"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 $15$ think just"

In Future Stars Investment (U) Ltd Vs Nasuru Yusuf, HCCS No. 0012 of 2017, the Hon. Justice Stephen Mubiru while considering order 13 rule 6 of the Civil Procedure Rules observed that, it is a settled principle of the law that a judgment 20 on admission is not a matter of right but rather one of discretion of the court. The admission must be unambiguous, clear, unequivocal and positive. Where the alleged admission is not clear and specific, it may not be appropriate to take recourse under the provision. In The Board of Governors Nebbi Town S. S. S Vs

Jaker Food Stores Limited HC M. A No. 0062 of 2016 (Arua HC) the Hon. Justice 25 Stephen Mubiru further noted that the judge's discretion to grant judgment on


admission of fact under the law is to be exercised only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment.

An admission should be on facts that have the bearing of disposing of a question in $\mathbf{S}$ controversy or the entire suit. The party should be clearly understood to out rightly admit the claim without consideration of extrinsic evidence or the need for further interrogation of the pleadings. The admission should be glaring from the party's pleadings. Therefore, court should examine the totality of the parties' pleadings and the supporting documents and the clear and irresistible conclusion therefrom 10 should be that one party admits the theory or claim by the other party to the suit.

In this case, the plaintiff sued seeking to revoke the letters of administration granted to the defendant over the estate of the late Katabarwa Yosamu in HCT 01-

- CV AC 38 of 2014, an order to have the grant surrendered, an order for 15 comprehensive statement of account of all the dealings with the estate, a grant of letters of administration to the plaintiff, permanent injunction, general damages and costs of the suit and these are in paragraph 3 of the plaint. The defendant in paragraph 3 of the Written Statement of Defense denied the contents of paragraph - 3 of the plaint and contended that the plaint lacks merit and legal basis. The 20 plaintiff also denied all the other paragraphs. The contents of paragraph 4(a) to (h) of the plaint which the defendant admitted in paragraph 5 of his Written Statement of Defense, appear not to admit the claim by the plaintiff, but rather, facts which have a bearing on the claim. The defendant did not admit the claims by the plaintiff under paragraph 3 of the plaint and there was no admission as to whether the 25 plaintiff is fit and proper to administer the estate of the late. In my view the facts admitted had no effect of having the suit either fully disposed of or partially

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determined. The reading of the plaint and entire defense and the annexures thereto do not lead one to an irresistible conclusion that the defendant admitted the plaintiff's claim. To the contrary, the defendant disputed the plaintiff's claim. The alleged admission is not unequivocal or clear to warrant entering a judgment on admission in favour of the plaintiff. $5$

### **Remedies:**

Since the facts do not suggest that the defendant admitted the plaintiff's claim to warrant grant of a judgment on admission, I decline to grant the prayer by Counsel for the plaintiff and in lieu thereof issue the following directions for progression of the main suit.

- (a) The parties should generate and file a Joint scheduling Memorandum within 15 days from the date of delivery of this ruling. - (b) Both the plaintiff and the defendant should file and exchange their trial

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bundles and witness statements within 30 days after filing the Joint Scheduling Memorandum.

I so order.

**High Court Judge Fort-portal** 1.11.2022