Ssentambule v Oboth (Civil Appeal 19 of 2022) [2024] UGHC 540 (28 May 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO CIVIL APPEAL NO. 19 OF 2022 (ARISING FROM MISCELLANEOUS APPLICATION NO. 009 OF 2022)

(ARISING FROM MUKONO LAND CIVIL SUIT NO. 96 OF 2021)

#### ...................................... MATIA SSENTAMBULE :::::::::::::::

#### **VERSUS**

HON. JACOB MARKSONS OBOTH :::::::::::::::::::::::::::::::::::: BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### JUDGMENT

### **Background**

- 1. This is an appeal arising from the ruling and orders of the Magistrate Grade 1 of Mukono Chief Magistrate's Court delivered by His Worship Muinda Tadeo in Miscellaneous Application No. 009 of 2022. The Respondent who was the Plaintiff in Civil Suit No. 96 of 2021, instituted the suit against the Appellant on 5<sup>th</sup> October, 2021, for trespass and unlawful and illegal occupation on his plot of land comprised in Block 115, Plot 5211, Kyaggwe County, Mukono District, measuring 1.6110 hectares. The Defendant has occupied approximately 34 meters by 5 meters where he has constructed a one roomed house. - 2. The Defendant filed his written statement of defence on 12<sup>th</sup> October, 2021, denying the Plaintiff's allegation and contending that he

$\mathbf{1}$

entered a memorandum of understanding with Mr. Kabonge John the vendor of the land wherein they agreed that he retains 70ft by 100ft of land to which transfer forms were executed by Mr. Kabonge and availed to the Defendant to enable him mutate off his portion. The memorandum of understanding and transfer forms attached to the Defendant's defence clearly indicates the description of land allegedly given to the Defendant by Mr. Kabonge to be land comprised in Kyaggwe Block 115, Plot 5214 and not Block 115, Plot 5211 being claimed by the Plaintiff.

3. The Plaintiff filed Miscellaneous Application No. 009 of 2022, seeking for orders that the written statement of defence filed on 12<sup>th</sup> October. 2021 in Civil Suit No. 96 of 2021 by the Defendant be struck out for failing to disclose a reasonable answer to the Plaintiff's claim in the plaint and that costs of the application be provided for. The application was allowed and the Defendant's written statement of defence was struck off the lower court record under the provision of Order 6 rule 30 of the Civil Procedure Rules, S. I. 71-1. The Appellant was further ordered to pay costs of the application to the Respondent and Mr. Kabonge John the third party (whom he joined in his affidavit in reply as the $2^{nd}$ Respondent).

### **The Appeal**

$\mathcal{L} = \mathcal{L}$

4. The Appellant being dissatisfied with the ruling and orders of His Worship Muinda Tadeo, the learned trial Magistrate Grade 1, filed this appeal. The Memorandum of Appeal filed on 27<sup>th</sup> April, 2022, contains the following grounds:


$\overline{2}$

- That the learned trial Magistrate erred in law and fact when $\mathbf{I}$ he held that the Appellant's written statement of defence does not answer the claims in the plaint hence arriving at a wrong decision of striking it out; - That the learned trial Magistrate erred in law and fact when ii. he held that the Appellant's written statement of defence addresses a different subject matter from that on which the cause of action arose hence arriving at a wrong decision striking it out; and - That the learned trial Magistrate erred in law and fact when iii. he failed to hold that the Appellant initially held a *kibanja* on the suit land prior to the Respondent's acquisition of the same. - 5. During the hearing of this appeal, the Appellant was represented by Counsel Gawera Topher and Counsel Namawejje Hildah from M/s Patrick Semakula & Co. Advocates. The Respondent was represented Counsel Akamba Paul and Counsel Mulondo Eden from M/s Kagera Advocates. - 6. The Respondent's counsel raised two preliminary objections to the appeal. They are: - (a) failure by the Appellant's counsel to abide by the timelines set by the court on filing submissions; and

defective. (d) the Appeal is arising from a non-existent suit hence it is incurably

- 11:30 a.m. this court issued the following directives that: appeal came up for hearing on the 7th day of November, 2023, at Y. On the 1<sup>st</sup> objection, the Respondent's counsel argued that when the - November, 2023; To $\sqrt{ab}$ <sup>18</sup> Solutions on the Respondent by the 2<sup>1</sup><sup>st</sup> day of nettinw sind serves bns selit finalleggA ent (s) - December, 2023; to vab ine Appellant by the 5<sup>th</sup> day of (d) the Respondent files and serves his written - the $12<sup>tn</sup>$ day of December, 2023; (c) the Appellant may file submissions in re-joinder on

counsel prayed that this court disregards the Appellant's submissions day before this case is scheduled for hearing. The Respondent's Respondent was to file and serve the Respondent's submissions a have been heard and determined. That this is because the Respondent's case and further prolonged the time this appeal should adlay in filing his submissions. That this delay prejudiced the counsel does not have the courtesy to explain the unreasonable ine 9<sup>th</sup> day of January, 2024. That to further aggrevate the situation, $\theta$ December, 2023 and served them on the Respondent's counsel on Appellant's counsel filed his written submissions on the $29^m$ day of 8. Counsel submitted that in total disregard to these directives, the


and further bars his right to make a re-joinder to the Respondent's submissions.

- 9. On the $2<sup>nd</sup>$ objection, the Respondent's counsel contended that the appeal preferred against the Respondent, as indicated in the memorandum of appeal, is Civil Appeal No. 19 of 2022, arising from Civil Suit No. 96 of 2022. That the Respondent has never been a party to a Civil Suit No. 96 of 2022, and therefore, this appeal is premised on a suit wherein the Respondent was not a party and, consequently, it ought to be dismissed. - In response, the Appellant's counsel contended on the first $10.$ objection that the issue of filing of the parties' respective submissions was dealt with by this honourable court and all submissions were admitted by this honourable court. That court proceeded to order the Appellant to file his submissions in rejoinder by the 5<sup>th</sup> day of February, 2024. That it is therefore unconscionable for the Respondent's counsel to raise the same matter in his written submissions. Counsel invited court to disregard the objection and address the matter before it. - Counsel added that the Appellant was denied an opportunity to $11.$ be heard by the trial court and it would be fatal for him to be denied audience by the appellate court as well. The Appellant's counsel argued that the delay would be attributed to his counsel and not the innocent litigant whose residential holding is at the verge of being demolished.

$\mathsf{S}$

- Counsel contended that the ex-parte proceedings were $12$ conducted in such a rush so that the Respondent could secure judgment against the Appellant and that fortunately, the High Court Registrar intervened and required the trial Magistrate to forward the file. That it is unfair for the Respondent's counsel to blame the Appellant or his advocates for the alleged sloppy pursuit of the prosecution of the appeal. - Regarding the 2<sup>nd</sup> preliminary objection, the Appellant's counsel $13.$ submitted that citing the trial court civil suit number as 96 of 2022 instead of 96 of 2021, was an innocent typo for which the Appellant regrets. Counsel humbly implored court to allow the Appellant to correct it so that it reads as Civil Suit No. 96 of 2021. Counsel stated that this error does not render the appeal incurably defective as argued by the Respondent's counsel. That the suit from which the instant appeal arose is actually existent notwithstanding the misstatement of its civil suit number.

## **Court's consideration on the preliminary objections**

As stated by the Respondent's counsel, on the 7<sup>th</sup> November. $14$ 2023, this court gave the parties timelines within which to file their respective submissions as correctly highlighted by the Respondent's counsel. However, on 23<sup>rd</sup> January, 2024, when the appeal came up for hearing, court noted that all submissions were filed late and stated as follows:

"The submissions were all filed late. The last submissions for the Respondent were filed on 19/Jan/2024. The Appellant's counsel who is absent may wish to rejoin. Since the Appellant is present, in the interest of justice, the Appellant's counsel is hereby directed to file submissions in rejoinder, if any, on $5^{th}$ February, 2024 and serve the Respondent's counsel on the same day. The Appellant should inform his lawyer accordingly."

- The effect of the above quoted decision of this honourable court 15. is that this court on that day validated all the lately filed submissions and admitted them on court record. Court further gave the Appellant's counsel the chance of filing submissions in rejoinder if they so desired. Submissions in rejoinder were indeed filed on 5<sup>th</sup> February, 2024 as directed by this honourable court. Therefore, this preliminary objection is overtaken by events, as this court validated all the lately filed submissions on 23<sup>rd</sup> January, 2024 and allowed them to form part of court record. Therefore, the 1<sup>st</sup> preliminary objection is hereby overruled. - Regarding the $2<sup>nd</sup>$ preliminary objection, I agree with the 16. Respondent's counsel that the Appellant wrongly cited the suit number from which this appeal is arising as Civil Suit No. 96 of 2022 instead of Civil Suit No. 96 of 2021. However, I consider this discrepancy to be an innocent typographical error that does not go to the root of the appeal. I have noted that this appeal clearly arises from Miscellaneous Application No. 009 of 2022 and Civil Suit No. 96 of 2021. In any case, the memorandum of appeal was drafted by the

Appellant's lawyers and not by the Appellant himself. In my judgment, to visit such an error or mistake by counsel on the innocent litigant would be causing him an injustice. Accordingly, I find no merit in the $2<sup>nd</sup>$ preliminary objection and hereby over rule it.

- $17.$ I now proceed to determine the appeal on its merits and I will consider resolving all the grounds of the appeal together since they all relate to striking out of the Appellant's written statement of defence from the lower court Civil Suit No. 96 of 2021. - 18. The duty of this court being the first appellate court is well established. The duty is to appreciate the evidence adduced in the trial court as a whole, subject it to exhaustive scrutiny and re-appraise it in order to reach its own conclusion. (See the case of **Fredrick** Zaabwe v. Orient Bank, SCCA NO. 4 of 2006).

#### **Grounds of the appeal:**

- That the learned trial Magistrate erred in law and fact when i. . he held that the Appellant's written statement of defence does not answer the claims in the plaint hence arriving at a wrong decision of striking it out; - That the learned trial Magistrate erred in law and fact when ii. he held that the Appellant's written statement of defence addresses a different subject matter from that on which the cause of action arose hence arriving at a wrong decision striking it out; and

- That the learned trial Magistrate erred in law and fact when iii. he failed to hold that the Appellant initially held a kibanja on the suit land prior to the Respondent's acquisition of the same. - 19. The Appellant's counsel argued that the Appellant pleaded in paragraph 4 of his written statement of defence that he has never trespassed on the suit land belonging to the Respondent. In the subsequent paragraphs of the written statement of defence, the Appellant gave the history of his family's existence on the suit land right from the year 1986 when his father purchased a *kibanja* from the mailo owner of the land one Eriabu Lukwago, who later sold it to Kabonge John. - The Appellant's counsel submitted that in regard to the suit $20$ between the parties herein, it is discernible from the Respondent's plaint that his major allegation against the Appellant was in trespass and that in answer to this allegation, the Appellant staged a defence of ownership of a *kibanja* on the suit land. Counsel stated that under paragraphs 7 and 8 of the same written statement of defence, the Appellant explained how his father's estate was distributed and he was allocated a *kibanja* parcel measuring 1.5 acres. - $21.$ Counsel contended for the Appellant that the discrepancy in the plot numbers that is, that of the suit land and the one reflected in the Appellant's transfer forms and memorandum executed by Kabonge

John was not a grave inconsistence given the fact that it is not in dispute that the two plot numbers arose from one and the same land that was formerly owned by Kabonge John. Counsel submitted that it would have been explainable through evidence if the trial had been allowed to proceed inter-party.

- $22$ Counsel added that it is probable that by the time Kabonge John executed the memorandum bearing the impugned plot number, the Appellant was under a wrong impression that the entire land on which he owned a *kibanja* was still intact and still registered in the names of Kabonge John. That it is trite that a *kibanja* is one of the equitable and legally protectable interests under section 29 of the Land Act as amended. - $23.$ The Appellant's counsel submitted that the Appellant's father owned a kibanja on Eriabu Lukwago's land which was subsequently purchased by Kabonge John. That the kibanja devolved to the Appellant and other beneficiaries of his estate. That it was therefore proper for the Appellant to raise such a defence in relation to the Respondent's claim against him. That the trial court was enjoined to assume that the Appellant's kibanja claimed in the suit land was true and would be sustainable during trial. Counsel cited the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] 1 EA 696. - It was further averred for the Appellant that since the $24.$ Respondent acquired the suit land from the said Kabonge John, it

was crucial for the trial court to allow the Appellant substantiate his defence by adducing evidence to that effect. That the Appellant had also sought to add the said Kabonge John to the suit as a party but all these efforts were thwarted by the trial Magistrate when he struck out the written statement of defence.

- The Appellant's counsel argued that contrary to the finding or $25.$ ruling of the trial Magistrate, the Appellant's written statement of defence raised a reasonable answer to the Respondent's claim. For instance, the Appellant would be expected to adduce evidence to establish; whether his alleged *kibanja* covered the suit land, i.e. Plot 5211, as well as what happened to the portion of the *kibanja* that fell on the suit land when the title deed thereof was transferred into the names of the Respondent. The Appellant's counsel argued that the evidence would also establish whether the Appellant would become a trespasser on the suit land on account of change of proprietorship in favour of the Respondent. - The Appellant's counsel submitted that the trial Magistrate $26.$ ignored the Appellant's averments in the written statement of defence in regard to his ownership of a kibanja on Kabonge John's land, out of which the suit land described as Plot 5211 arose after subdivisions. That the trial Magistrate instead unjustifiably gave a lot of weight to the discrepancy in the plot numbers mentioned in the parties' respective pleadings.

$27.$ The Appellant's counsel submitted that the Land Act as amended, clearly provides that change of proprietorship of registered land does not affect the equitable interests of the lawful occupants of such lands and that in the same vein, there is no law that provides that sub-divisions made in registered land affect the equitable interests of lawful or *bonafide* occupants thereof. That by premising his ruling solely on the discrepancy in the plot numbers mentioned in the parties' respective pleadings, the Magistrate made a grave error which ultimately denied the Appellant's access to substantive justice. That it is sad that it did not occur to the trial Magistrate that these plot numbers keep changing every time sub-divisions are made in a given parcel of land. Counsel stated that bibanja holders like the Appellant herein are not always or necessarily privy to changes in the numbering of plots on which their equitable interests are comprised.

28. It was further contended for the Appellant that it is very much possible that the Respondent purchased the suit land from Kabonge John without the knowledge of the Appellant who was a kibanja holder thereon and that this is why it was very crucial for Kabonge to join the suit as a party so he could explain how the two plot numbers, i.e. 5211 and 5214 arose and how their creation affected the Appellant's kibanja interest. Counsel submitted that the Appellant's written statement of defence raised a reasonable answer and triable issues regarding the Appellant's kibanja interest in the suit land. Counsel stated that if the Appellant's written statement of defence had not been struck out, he would have been able to explain or show court the extent of his *kibanja* of 1.5 acres when court visited locus.

- The Appellant's counsel submitted that the trial Magistrate $29$ injudiciously exercised his discretion when he struck out the Appellant's written statement of defence. The Appellant's counsel prayed that this honourable court allows the appeal, sets aside the ruling and orders of the trial Magistrate, sets aside the ex-parte proceedings that ensued after the trial court's ruling, restores the Appellant's written statement of defence and then return the case file to the trial court for hearing of the matter inter-party. - In opposition to the $1^{st}$ and $2^{nd}$ grounds of the appeal, the 30. Respondent's counsel contended that the Respondent in this appeal, in paragraph 2 of his affidavit in support of Miscellaneous Application No. 009 of 2022, wherein he was the Applicant, stated that he instituted Civil Suit No. 96 of 2021 in the lower court on 5<sup>th</sup> October, 2021 with a claim that the Defendant is trespassing on the suit land measuring approximately 34 meters by 5 meters of land comprised in Kyaggwe, Plot 5211, Block 115 land at Kyungu. That the Respondent further attached the plaint, highlighting paragraphs 3, $4(a, d)$ and $9(g)$ that elucidate his claim. - That in response, the Appellant/Defendant filed a written 31. statement of defence dated 12<sup>th</sup> October, 2021, specifically, in paragraphs 8, 9 and 10, pointed out how he allegedly acquired the suit land. That the Appellant stated that he received 70ft by 100ft land comprised in Kyaggwe, Plot 5214, Block 115 land at Kyungu from Mr. Kabonge John, a third party to the main suit who subsequently

testified on behalf of the Respondent after the Appellant's written statement of defence was struck off. That this grant was reduced into a memorandum of understanding dated and signed on 3<sup>rd</sup> March, 2021.

- Furthermore, that the memorandum of understanding attached $32.$ is with respect to the land on Block 115, Plot No. 5214. That to further assert his claim, the Appellant attached signed transfer forms allegedly given to him by Mr. John Kabonge in paragraph 11 of his written statement of defence. And that the signed transfer forms, just like the memorandum of understanding, is with respect to the land comprised in Block 115, Plot No. 5214 instead of Block 115 Plot 5211, which is the subject matter in the plaint. - The Respondent's counsel submitted that under the Civil 33. Procedure Rules S. I. 71-1 as amended, upon an application, the court can order any pleading to be struck out because it does not disclose a reasonable answer and order the suit to be dismissed or judgement entered accordingly. Counsel referred to the case of Joseph Nanjubu v. Frank Kintu & Anor Miscellaneous Application No. 77 of 2011. - It was further argued for the Respondent that the Appellant's $34.$ written statement of defence read as a whole, including all the annexures, cannot succeed against the claims preferred by the Respondent. The Respondent's counsel argued that this is because it addresses an entirely different subject matter from which the cause of

action arises. That the grant allegedly made to the Appellant by the third party (Mr. Kabonge John) is comprised in Block 115, Plot 5214, which his defence intends to protect.

- The Respondent's counsel submitted that the Appellant would 35. have failed to justify his illegal occupation and trespass on Kyaggwe Plot 5211, Block 115 at Kyungu, which is the subject of Civil Suit No. 96 of 2021. That the legal implication of this will be that the Respondent will not have a remedy against the unjustified actions of the Appellant. Counsel argued that the Appellant claims ownership of land measuring 70ft by 100ft comprised in Block 115 Plot 5214 and he states that Mr. Kabonge John executed transfer forms for the aforementioned land and further buttresses this by attaching the only evidence of his interest in Plot No. 5214, a signed transfer form and memorandum of understanding. - The Respondent submitted that paragraphs 10 and 11 of the 36. written statement of defence are unambiguous, clear and unequivocal admissions that the Appellant is stopped from denying, and the court should not be coerced into restoring a written statement of defence only to prove already admitted facts. That these admitted facts warrant the Respondent to obtain judgment on admission under Order 13 rule 6 of the Civil Procedure Rules. - The Respondent's counsel submitted that the Appellant's 37. counsel in his submissions ignored all the other paragraphs wherein the Appellant admits ownership of Plot 5214, and yet if the written

statement of defence is read as a whole, his interest, if any, is in Plot 5214. Counsel cited the case of Opia Moses v. Chukia Lumogo Roselyn & 5 Others Civil Suit No. 0022/2013.

- The Respondent's counsel argued that the written statement of 38. defence read as whole only justifies the fact that the Respondent owns a plot of land not in contention in Civil Suit No. 96 of 2021. That the Appellant's defence addresses an issue on a piece of land that does not form the subject matter of Civil Suit No. 96 of 2021. That there is no need to lead evidence or have a full trial to prove a variance in the plots of land in question. - The Respondent argued on the 3<sup>rd</sup> ground of the appeal that 39. the mailo interest that the Respondent holds on Block 115, Plot 5211 was acquired and registered on the 27<sup>th</sup> day of July, 2018, while the Appellant claims to have acquired his interest on Block 115, Plot 5214, on the 3<sup>rd</sup> day of March, 2021, as per the agreement he entered into with Mr. Kabonge. That the legal implication is that under the Registration of Titles Act, the Respondent's title is indefeasible and was acquired without any subsisting legal or equitable interest. That this is obviously with the exception of fraud, which has neither been alleged nor proved by the Appellant. - Respondent's counsel further submitted that the 40. The Appellant's equitable or legal interest does not fall on Plot 5211 because it had already been sold to the Respondent. That Mr. Kabonge could not sell to the Appellant because, on the 3<sup>rd</sup> day of

March, 2021, he did not hold any interest in Plot 5211. That it is legally untenable for the Appellant's counsel to argue that the Appellant has any legal or equitable interest in Plot 5211.

- The Respondent stated that the Appellant's alleged inheritance $41.$ of 1.5 acres metamorphosed into a mailo interest on land comprised in Kyaggwe Block 115, Plot 5214. That this is further buttressed by the fact that the transfer forms signed by Mr. Kabonge and the Appellant are under the Registration of Titles Act. That much as the kibania is a special form of interest recognized within the mailo interest, it is important to note that it is only an equitable interest primarily regulated by the Land Act. That the procedure of transferring a kibanja to another person differs from the procedure under the mailo interest. - Additionally, the Respondent's counsel averred that the 42. procedure adopted by Mr. Kabonge and the Appellant, which involved transfer forms, only points to a mailo interest, not a kibanja. And that according to the agreement the Appellant and Mr. Kabonge entered, the former was obligated to mutate the 70ft X 100ft on Block 115, Plot 5214 and transfer the land into his name. That this process results in the issuance of a duplicate certificate of title. - The Respondent's counsel argued that proof of ownership of a $43$ kibanja interest is not a duplicate certificate of title and that this means that whatever interest the Appellant had was forfeited on the 3<sup>rd</sup> day of March, 2021, as per the agreement he entered into with Mr.

Kabonge, and he retained only a mailo interest on Block 115, Plot 5214, measuring 70ft by 100ft which explains why he asserted in his pleadings that his interest is on Block 115, Plot 5214. That it is, however, unfortunate that the Appellant's counsel is trying to create an equitable interest for his client even when it is legally untenable.

- Further submission for the Respondent was that the Appellant $44.$ does not provide any evidence on his written statement of defence or affidavit in reply to Miscellaneous Application No. 009 of 2022 to suggest that he either inherited the 1.5 acres of land from his father or that he owns a kibanja on the suit land. That this appeal is devoid of merit and that the lower court properly evaluated the evidence on record and correctly applied the law to justifiably exercise its discretion to strike out the Appellant's written statement of defence. He prayed that the appeal be dismissed with costs. - The Appellant's counsel argued in rejoinder that even if it were $45$ true that the Appellant's interest was solely in the plot number stated in his written statement of defence, it would still be important for the trial court to allow both parties to prosecute their respective cases to establish whether the portion in dispute actually lies on the Respondent's land. That as is the case with land disputes, at the end of the proceedings, the trial court would be enjoined to visit the locusin-quo to, among others, verify the oral evidence by the respective parties. That in land matters, parties have in some instances disputed over the same parcel of land albeit with differing descriptions provided by the same parties. - The Appellant's counsel rejoined that the Appellant in the 46 instant appeal was denied an opportunity to be heard by the trial court. The Appellant's counsel argued that if he had not appealed against the decision, his home that he constructed on the suit land, would be at the mercy of the trial court, which incidentally had already decided to proceed ex-parte against the Appellant. That the Constitution of the Republic of Uganda protects the right to a fair hearing and that this embodies everyone's right to be heard in proceedings before the courts of law or other fora. That by the trial court denying the Appellant's written statement of defence, it unreasonably denied him the right to adduce his evidence in a land dispute and this occasioned a miscarriage of justice. - 47 The Appellant's counsel prayed that this court finds that the trial court's decision to strike out the Appellant's defence was erroneous and occasioned a miscarriage of justice. Counsel also prayed that the remedies sought by the Appellant or any other appropriate remedies be granted by this honourable court.

## **Court's consideration**

$\mathcal{L} = \mathcal{L}$

Pleadings are formal documents filed with the court which set 48. out the facts a party wishes to rely on to prove his or her case in civil proceedings. This can be a claim against another party or a defence to a claim against a particular party. The party's pleading must not leave out any specific matters but must also be as brief as possible. It is therefore vitally important that the rules are followed when drafting

pleadings. The Court has the power to dismiss a proceeding due to a party's failure to do so.

- 49 The principles guiding striking out of pleadings and cases are now well settled. Usually, pleadings are struck out on a point of law which can be raised at any time during the proceedings. However, in practice parties are required to raise preliminary objections at an early stage. Where a preliminary objection is raised or an application is made to strike out a pleading, the court only looks at the pleadings to determine whether the objection has merit or not. - $50.$ The duty of court while considering striking out pleadings is to determine whether the pleadings have been formulated in accordance with the established rules of pleadings. Order 6 rule 30 (1) of the Civil Procedure Rules, S. I. 71-1 provides thus:

"The court may, upon application, order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer and, in any such case, or in case of the suit or defence being shown by the pleadings to be frivolous or vexatious, may order the suit to be stayed or dismissed or judgment to be entered accordingly, as may be just."

$51$ In Kayondo v. Attorney General [1988-1990] HCB 127, it was held that:

> "The court may use its inherent powers to strike out a defective written statement of defence where the defect is apparent on the face of the record and where no amount of amendment will

-E

cure the defect. The procedure is intended to stop proceedings which should not have been brought to court in the first place and to protect the parties from the continuance of futile and useless proceedings".

$\sim$ $\sim$

- 52. The power to strike out any pleading should be exercised after the court has considered all facts. Consequently, a plaintiff applying for striking out a defence on the grounds listed under Order 6 rule 30 of the Civil Procedure Rules, must persuade court that the defence falls within the well-known meaning of the words listed thereunder and he or she should specify whether it is the whole defence or only parts thereof and if parts, which ones, offend the rules of pleading. The court must exercise the powers to strike out a pleading or case with the greatest care and only in the clearest of cases should the court strike out a pleading. - The grounds upon which the application appealed against was 53. based were that the defence filed by the Appellant does not provide any answer or reasonable response to the claims in the plaint in respect of the subject matter of trespass in Civil Suit No. 96 of 2021. The Respondent / Plaintiff claimed that the Appellant / Defendant was in unlawful occupation of his land and hence trespassing on his land comprised in Block 115 Plot 5211. Furthermore, the Respondent herein argued that the written statement of defence was frivolous and vexatious since it does not address any of the issues or claims raised in the plaint.

$\overline{21}$

A pleading is frivolous if (i) it has no substance, or (ii) it is $54.$ fanciful; or (iii) where a party is trifling with the court, or (iv) when to put up a defence would be wasting court's time; or $(v)$ when it is not capable of reasoned argument. Furthermore, a matter is said to be vexatious when it has no foundation; or it has no chance of succeeding; or the pleading is brought merely for purposes of annoyance; or it is brought so that the party's pleading should have some fanciful advantage, or where it can really lead to no possible good. In other words, a vexatious matter is one which lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. However, the power to strike out pleadings is a drastic step that should be used sparingly and only in the clearest of cases in order to avoid injustice.

$\mathcal{L} = \mathcal{L} \times \mathcal{L}$

## 55. In R v. AJIT SINGH s/o VIR SINGH [1957] EA 822 at page 825 RUDD. AG. CJ said:

"Frivolous" is defined in the OXFORD ENGLISH DICTIONARY as

'Paltry, trumpery; not worthy of serious attention; having no reasonable ground or purpose.' In our judgment there is nothing on the record to show that this prosecution was frivolous or vexatious and we therefore set aside the order for payment of compensation made by the magistrate."

According to Mozley & Whiteley's Law Dictionary, Eleventh 56 Edition (1993) a vexatious action is "an action brought merely for the

sake of annoyance or oppression. The Court has inherent power to stav such an action".

- I have perused the written statement of defence of the third-57. party Mr. Kabonge John who was joined in Civil Suit No. 96 of 2021 by the Appellant. He clearly stated in paragraphs 3 and 4 of his written statement of defence that he sold his land comprised in Block 115, Plot 5211, Kyaggwe County, Mukono District, measuring 1.6110 hectares situated at Kyungu Zone to the Plaintiff (the Respondent herein). That on 27<sup>th</sup> day of July, 2018, the land was transferred from him and registered in the Plaintiff's name - Oboth Marksons Jacob vide Instrument Number MKO-00060780. - Kabonge added in paragraphs 5, 6, 7 and 12 of his defence 58. that when he was informed by the Plaintiff about the Defendant's construction on his land without permission, he wrote a notice to the Defendant (the Appellant) stopping him from encroaching on the Plaintiff's land. He also stated that the subject matter in Civil Suit No. 96 of 2021 is land comprised in Block 115, Plot 5211 while the land he allocated to the Defendant without any consideration measuring 100ft by 50ft is comprised in Kyaggwe Block 115, Plot 5214, which is not in issue in the suit. - The Appellant stated in paragraphs 5, 6 and 7 of the written 59. statement of defence thus:

"5. In specific reply to paragraph 4 of the plaint, the defendant shall contend that the suit land initially belonged to his late father a one ERIA NKIREHE KALEKEZI who purchased the same in 1986 from its then owner / mailo land owner a one ERIABU LUKWAGO.

6. That the said mailo owner sold the suit land to a one KABONGE JOHN who ultimately sold it to the plaintiff.

7. That upon the demise of the defendant's father, the beneficiaries shared out his estate and the defendant was allocated a kibanja measuring about 1.5 acres."

- 60. In my judgment, the Appellant's written statement of defence raised a reasonable answer to the Respondent's claim. For instance, the Appellant would have to adduce evidence to establish whether his alleged kibanja covered the suit land, that is, Plot 5211, as well as what happened to the portion of the *kibanja* that fell on the suit land when the title deed was transferred into the names of the Respondent. Another issue that the trial court would have considered is whether the Appellant was a trespasser on the suit land on account of change of proprietorship in favour of the Respondent. - Therefore, I find that the Appellant's written statement of 61. defence was not frivolous or vexatious as it raised triable issues which would better be resolved in a hearing involving the parties in the suit. A visit to the locus in quo would also elucidate issues of

ownership of the land in dispute and whether there is any trespass to the land and who is guilty of the trespass.

Pursuant to the foregoing analysis, I find merit in all the grounds 62. on which the Appellant faults the learned trial Magistrate for striking out his written statement of defence. Therefore, the appeal is allowed and the orders of the trial Magistrate in Miscellaneous Application No, 009 of 2022 are set aside. Costs of this appeal are awarded to the Appellant. I further order for retrial of Civil Suit No. 96 of 2021 before another Magistrate. I so order accordingly.

This judgment is delivered this $28^{th}$ day of May, 2024 by


**FLORENCE NAKACHWA JUDGE.**

In the presence of:

- (1) Counsel Akamba Paul from M/s Kagera Advocates, for the Respondent; - (2) *Mr. Matia Ssentambule, the Appellant;* - (3) Ms. Pauline Nakavuma, the Court Clerk.