Walalkila v Mugimba (Civil Appeal 197 of 2018) [2024] UGCA 211 (15 August 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL 197 OF 2018 (ARISING FROM HCCS 019 OF 2018)

SIRAJJE WALALKILA ========================= APPELLANT $\mathbf{V}$ HAKIM MUGIMBA ============================== RESPONDENT

CORAM; HON. JUSTICE CHEBORION BARISHAKI JA, HON. JUSTICE MOSES KAZIBWE KAWUMI JA, HON. JUSTICE DR. ASA MUGENYI JA.

### JUDGMENT OF DR. ASA MUGENYI

#### **INTRODUCTION** $1.$

This is an appeal from the judgment of High Court delivered by Justice Alexandrea Nkonge Rugadya on 23rd June 2017. The appellant is challenging the dismissal of his suit on the grounds of limitation and absence of a representative order.

#### **BACKGROUND** $2.$

2.1 The appellant and respondent are the sons of the late Ismail Kabanda who died intestate in 1978. The respondent and one Badru Musisi obtained a grant of letters of administration for the deceased estate from Mengo Court in 1978. Badru Musisi died in 2001. In 2008, the appellant filed HCCS 019 of 2008 where he sought revocation of the letters of administration. On 9th November 2015, the respondent's counsel raised preliminary objections as to the validity of the suit. On 23rd June 2017 the court dismissed the suit on the ground that the pleadings were fatally defective rendering the suit incompetent.

pg. 1

### **GROUNDS OF APPPEAL** 3.

The appellant raised five grounds of appeal which we shall summarize into three.

- 3.1 The learned trial judge erred in law and fact when she entertained the hearing and determination of the preliminary objection on the appellant's suit without notice to him. - 3.2 The learned trial judge erred in law and fact when she held that appellant's pleadings were defective and the suit incompetent and dismissed it without hearing it on merit hence occasioning an injustice to the appellant. - 3.3 The learned trial judge erred in law and fact when she held that the appellant's suit was barred by limitation and without a representative order dismissed it hence occasioning an injustice to him.

#### **ISSUES RAISED** $4.$

The court shall address the following issues raised by the appellant.

- 4.1 Whether there was a preliminary objection and if so whether the appellant was given notice of it? - 4.2 Whether the appellant's pleadings were defective and the suit could be dismissed on preliminary objections? - 4.3 Whether the trial judge was justified to dismiss the suit as a result of it being barred by limitation and there was no representative order?

### **Representation**

At the hearing the appellant was represented by Mr. Simeon Lutakome. The respondent was represented by Ms. Mary Nyachieo.

pg. 2

### PARTIES SUBMISSIONS

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The court shall consider the conferencing notes filed as submissions by the parties.

### 5. APPLICANT'S SUBMISSIONS

5.1 The appellant submitted that the respondent who was the defendant did not indicate anywhere that he was going to raise a preliminary objection. The appellant submitted that when the suit came up for hearing on 9th November 2015, counsel for the respondent did not seek leave to raise a preliminary objection. The appellant further submitted that the court record does not show that the respondent or his counsel ever appeared in court. The record does not show the hearing of the preliminary objection. The appellant concluded that the trial judge's decision on the preliminary objection was irregular and contrary to Order 6 Rule 28 of the Civil Procedure Rules. He contended that the judge erred by referring to arguments of counsel for the respondent who was not on record. The appellant was never served with the defense submission on the preliminary objection.

#### **RESPONDENT'S SUBMISSIONS** 6.

- 6.1 The respondent submitted that the appellant was represented at the time of the preliminary hearing as per the court record. The appellant and his counsel were in court when the respondent raised its objections. Therefore, the appellant was given a chance to be heard which he chose to forfeit when he failed to appear in court subsequently. - 6.2 The respondent submitted that under Order 6. Rule 28 of the Civil Procedure Rules a point of law may be raised by pleading. He further cited Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 where it was $pg.3$

stated that a preliminary objection "consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the case. The respondent submitted that it indicated the preliminary objection it raised in its amended statement of defence.

6.3 The respondent further submitted that Order 6 Rule 29 of the Civil Procedure Rules empowers court to dismiss a matter on a preliminary objection. The respondent cited the Attorney General v Major General David Tinyefunza Supreme Court Constitutional Appeal 1 of 1997 where Justice Mulenga said.

"The Court has the option. It may or may not hear the point of law before the hearing. It may dispose of the point before, at or after the hearing and it may or may not dismiss the suit or make any order it deems fit."

The respondent submitted that the court exercised its discretion in determining the preliminary points raised. He prayed the appeal be dismissed with costs.

## DETERMINATION OF COURT

7.1 I will address grounds 1 and 5 together. The appellant is aggrieved by a decision of the High court dismissing his matter on a preliminary objection. He contends his matter was dismissed without hearing it on merit. In Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 where it was stated that a preliminary objection "consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the case." The law on preliminary objections is set out Order 6 Rule 28 of the Civil Procedure Rule which states.

"Any party shall be entitled to raise by his or her pleadings any point of law, and any point so raised shall be disposed of by the court at or after the hearing, except that by consent of the parties, or by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."

pg. 4

Order 6 Rule 29 empowers the court to dismiss a matter on a preliminary point. It states

$\overline{a}$

"If, in the opinion of the court, the decision of the point of the law substantially disposes of the whole suit, or of any distinct cause of action, ground of defence, setoff, counterclaim, or reply therein, the court may thereupon dismiss the suit or make such other order in the suit as may be just."

The respondent cited the Attorney General v Major General David Tinyefunza Supreme Court Constitutional Appeal 1 of 1997 where Justice Mulenga said.

Basing on the said provisions, the appellant's case was dismissed.

- 7.2 The appellant is aggrieved that he was not notified of the preliminary objection. A copy of the court record (p. 32 of the record of appeal) shows that the plaintiff was in court on 9th November 2015. Elen Najuma assisted by Tamale Sali represented him. Eric Kiingi counsel for the defendant requested for two weeks to file submissions. Justice Alexandra Nkonge Rugadya, the trial judge, (see record of appeal at page 35) requested the parties to file submissions on the preliminary objections raised by the defendant. She stated that on 3rd May 2016 the court will decide whether the main action will proceed. Therefore, it is not true that the appellant and his counsel were not aware of the preliminary point of law raised by the defendant. - 7.3 When the matter came up for ruling on 3rd May 2016, the judge was indisposed. The plaintiff was not in court. The matter was adjourned to 24th October 2016 at 10 am for hearing. The defendant was to serve the plaintiff. The ruling was eventually delivered on 23rd June 2017 in the presence of counsel of the defendant. Neither the plaintiff or his counsel were in court. There is no evidence that the plaintiff and or his counsel were served. The purpose of serving parties with notice of a ruling or judgement is to allow an aggrieved party to file his or her appeal in time. I notice that the parties consented on the 20th June 2018 for

pg. 5

the appellant to appea-l out of time (See record of appeal page 291' Therefore' the appeilant is not prejudiced by the failure of the trial court to give him notice of thedateoftherulingwhichhecontendedresultedinhimfilingoutoftime. Ground 1 of the aPPeal fails.

- 7.4 The court will address grounds 2 and 3 of the appeal together' The appellant was aggrievedbythedecisionoftheHighCourtwhichheldthathispleadingswere defective. It also held that his suit was barred by limitation' The defendant and one Badru Musisi obtained letters of administration to the plaintifl's father's estateon28thMarchlgT8. Theadministratorsarerequiredtogivean accountability within 6 months from the grant of the letters. s. 6 of the Limitation Act provides that an action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. Theperiodtoenforcearequestforanaccountabilitybyfilingasuitincourt expired on 28th September 1984 (i.e. 6 years plus 6 months)' The appellant filed his suit on 19th February 2009 which was outside the prescribed period. Therefore, the suit in respect of accountability was time barred. order 7 Rule 11 of the civil Procedure Rule requires the court to reject a plaint where it appea-rs from the statement it is barred by law. - 7.5The appellant filed a suit in respect of other abuses on the deceased's estate This included disposing of assets., borrowing while mortgaging the estate property etc. However, in the amended plaint the appellaat did not indicate the dates or periods when the said alleged offences were committed. In the absence of the said dates, a court cannot determine whether the offences occurred. within the prescribed time as set out in the law of limitation. A palty should provide such information to enable the opposing party know the claim that is against him'order6Rule18oftheCivilProcedureRulesallowsacourttostrikeout unnecessary matter which may embarrass or delay the fair trial of the action, and may in any such case, if it thinks fit. In the absence ol such information the plaint was defective. The appellant also did not plead any grounds of exemption

as required by Order 7 Rule 6 of the Civil Procedure Rule. Grounds 2 and 3 of the appeal fail.

- 7.6 The appellant was aggrieved that the trial judge held that he filed a suit on behalf of his siblings without a representative order. A perusal of the amended plaint shows that the appellant was filing the suit for his own benefit. He does not indicate that he was filing the suit on behalf of his siblings. The appellant as a beneficiary to the estate of his deceased father can bring a suit in respect of any entitlement under the estate due to him or for his own benefit. In paragraph 10 of the plaint he indicates that he had interest in certain lands that were passed to him. In order to enjoy such entitlement due to him as a beneficiary, the appellant did not need to include his siblings as it gives rights to a personal action. Therefore, the trial court erred when it stated that the appellant required a representative order to file the suit. However, as a beneficiary, the law in respect of time limits still applies to him. I already noted that the suit was time barred. - Taking all the above into consideration, the court finds that the appellant's $7.7$ pleadings were defective and his suit was time barred. For the said reasons, the appeal is dismissed with costs.

Dated at Kampala this

15th day of Augund 2024.

Dr. Asa Mugenyi JUSTICE OF APPEAL