Sabiti & Another v Kihuku & 2 Others (Civil Suit 857 of 1989) [1992] UGHC 61 (26 November 1992)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO, 837 OF 1989

| 1. | PERSONAL REPRESENTATIVE ERICA SABITI (DECEASED) | OF | RT. | REV. | J 5 | APPLICANTS/DEFENDANTS, | | |----|-------------------------------------------------------------|-----|-----|------|--------|---------------------------|--| | 2. | GERADDINE SABITI MRS | | | | | | | | | | | | | VERSUS | | | | | | | | | | | | | 1. | JOHN WILLIAM KIHUKU | 5 | | | | | | | 2. | YOSIA BUG1GI | ) • | » | | | » RESPONDENTS/PLAINTIFFS. | | | | | | | | | | | | 3. | RONARD RWEKIHONDA | J | | | | | | | | | | | | | | |

BEFORE:- The Honourable Mr» Justice J. W. N. Tsekooko

## " Q-ILP ,E R

in this matter are the defendants in the substantive suit while the present respondents are the plaintiffs **in** the suit.

The applicants instituted Chamber Summons under SS 7 and **8 ef** Civil Procedure -Act and S.6 of the Limitation Act **and under Order** 7 rules 1 (e)5 6, 7 (d^ \*#nd 59 of the Civil Procedure Rules. **The** applicants seek for an order for rejection of the plaint. **The** application is supported by affidavit of the second applicant swerM • on 28th June, 1991\*

**Mr.** Muhanguzi represented the applicants while **Mr. Ayigihugu** appeared for the respondents.

In\*his opening remarks Mr. Muhanguzi opted to prosecute the Chamber Summons under 0.7 Rules 1 (e), 11 (a) and (d) and Rule **19** and Section 101 of Civil Procedure Act and did not want **te invoke** the Mother provisions because he had filed thereunder a **Notice** of Motion which motion could not be concurrently prosecuted with the. Chamber Summons. Mr. Ayigihugu had successfully objected to the combination of the two. Actually 0.7 Rule 11 (a) and (d) were

brought into the argument by the back door as it was not originally cited in the Chamber Summons^

- 2 - x

Mr. Muhanguzi submitted that the plaint should be rejected because it did not disclose a cause of action against the applicants. He referred to 0\*7 Huies 1 (e) and 11 and cited the cases of (1) Letang Vs. Cooper /19657 2 QB 2h2, Matokov Vs. Auto Garage Ltd. & Another /1971,7 EA 553 and /I97l7 EA 51^ and Sempa Mbabali Vs. Kiiza /19857 HCB ^6 and page ^75-^76, Bullen & Leak on pleadings, 11th Ed. S'S. 56 and 18^ of the Registration of Titiles Act.to support the view that in order for a plaint to disclose a cause of action the following should be present (a) plaintiff enjoyed a violated right (b) the defendant •..< d that right causing loss Qr damage\*.. to the plaintiff for which plaintiff is entitled to damage. (c) Defendant is liable.

These are accepted guidelines on this issue, i.et disclosure or ri'on. disclosure of a cause of action. Mr. Ayigihugu rightly concedes that to be the correct position. The **position** was **admirably** summarised-by Mustafa J,A., as he then was, at page 5^5 in the case **of** Auto Garage Vs. Jtetok-ov s., (No. 3) /19717 EA which case was relied on by learned counsel for the applicant.

In his submissions, Mrc Muhanguzi referred to the **plaint parfcicuw** larly paras 10,12. His view was that the plaint contains n\* averments of any rights enjoyed by plaintiffs on the disputed **land** which rights the .defendants/applicants had violated. That the plaintiffs were never given a lease offer. He further submitted that possibly it could be the Uganda Land Commission against which the respondents could have a cause of action. He submitted that even the particulars of fraud in para 12 of the plaint are too inadequate to disclose any cause of action.

He further submitted that first section 6 of the Limitation Act and second, Sections.,56 and 184 protect the defendants/applicants.

..... /5

**1** p

He contended that the respondents did not plead customary Tenure. On this last submission, I think that paragraphs 4 and 8 of the plaint really assert occupation by customary tenure.

For the respondents Mr. Ayigihugu submitted that the plaint discloses a cause of action and that the suit is not barred either under S. 6 of Limitation Act of Sections 56 and 184 of the RTA.

He1 submitted that a plaint may disclose a cause of action without stating all the facts and cited Lake Motors Ltd. Vs. Overseas Motors Transport Ltd. /I9597 EA 605 in support. I agree not that a plaint cannot be held/to disclose cause of action because of not stating all the relevant facts: See Auto Garage case (supra) and Polepole Trading Co., Vs. UCB (HCCS No. 16 e>f 1979)• , Ip«^iis" view under Section 25 of the Public Land Act, 1969 it w^sxmandatory uto grant lease to the respondents as customary '4 • tenants and cited the ease of Matovu & others Vs. M. Sseviri & Ugfndfi Land., Cq^mission 7^9797 HCB 174 in support. My understanding \$f the decision in Matovu's case' is that where a person **\$#CUpies** land by customary'tenure-if he'and some other person apply each aepayatel^r f-0TM.the same piece of land, the customary tenant must be heard bef^je his application is rejected (if that is- the **reason^** decision) in preferrence to another person. The **prgvisione of** Section 24 (5) and (4) appear to lend support to this view.

•? . ' Mr. Ayigihugu submitted that the applicants here hai appjie^ rfor separate piece land in a different place (Makazi, Nyab^w ngongi) but eventually got a lease for the disputed land. **Therefore** they violated the rights of the respondents. There is some **elements** of substance in this argument in that two pieces of **land situate** in deferent places were included in the same application. **This is** averred in the plaint. That allegation implies **fraud** and therefore a cause of action.

.... A

Further I agree with the submission of counsel for the respondents that the decision whether the paint discloses a cause of action or not should be based on the contents of the plaint. I am reluctant to base my decision of this application on the judgment annexed to the Chamber Summons. Resjudicata needs calling witnesses.

I have considered the submissions by both counsel, I have considered the law particularly 0.7 Rule 11 (e) (d) of Civil Procedure Ryles and Sections 56 and.184 of RTA and the cases cited to me for consideration and I am of the opinion that the **plaint** actually does disclose a cause of action.. The issue of resjudioafca can be decided after some evidence on it is adduced.

I should mention that, only a portion **of** judgment **i\* High** Civil Appeal No. 70/8^ and portions of record of.**evidence in J^ril Suit** No. 5^/80 concerning the same matter **attached along** judgment of Magistrate G. 1 in C/S 55/80. I **don't thijk it** 'A **for** me to peruse only portions of proceedings **^sas tc-** make a considered ruling on basis of such portions. I h^y.c.' made these remarks since proceedings were attached to the Chamhe^ though res judicata was not argued. In the result, this application is dismis^d **with**

J/J D G E j.w.nT t^ekookb

26/11/1992

2/12/1992 at 9.00 a.m. Muhanguzi' for applicants. Ayigihugu' for respondents. Ssensonga - Court clerk. Court - Order delivered.

1/12/1992.