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Semambo and 4 Others v Kawamara Mishambi (CIWL APPEAL NO. 34 OF 2011)

Court of Appeal · [2019] UGCA 2116 · 2019 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing a suit with costs on a preliminary objection
Decision
Appeal allowed; High Court ruling set aside and suit remitted to the High Court for trial before another Judge

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Holding

The Court of Appeal held that a dismissal of a suit with costs is a decree that conclusively determines the parties' rights and is appealable as of right under section 66 of the Civil Procedure Act, so leave was unnecessary. On the merits, the Court found the plaint, read with its annextures, disclosed a cause of action by pleading particulars of fraud which the trial court should have inquired into. The Court further held that the suit, being for the protection of the appellants' security of occupancy as tenants by occupancy under Article 237(8) of the Constitution and section 31(1) of the Land Act, was not a suit for recovery of land and was not time-barred under the Limitation Act. The appeal was allowed and the matter remitted for trial.

Facts

Stanley Sebuufu Semambo purchased a kibanja interest of about one and a half acres over the suit property in 1984. The appellants, as beneficiaries of his estate, claimed to be lawful occupants in possession of the property. In 1993, after Semambo's death, the Uganda Land Commission issued a lease over the suit property to Jack Mishambi, and a certificate of title was issued to him. Upon Mishambi's death, the respondent and Sam Kwesiga were registered as proprietors as administrators of his estate. The appellants alleged the lease and title were procured through fraud and illegality, including a false declaration that the property was unoccupied and failure to notify or obtain the consent of the occupants. The appellants pleaded they discovered the respondent's claim and fraud in 2008 when shown the lease title and threatened with eviction. They instituted Civil Suit No. 55 of 2009 seeking cancellation of the title, a declaration of lawful occupancy, and a permanent injunction against eviction. The High Court dismissed the suit on a preliminary objection that it was time-barred and disclosed no cause of action, and granted judgment on the respondent's counterclaim including an eviction order.

Issues

  1. Whether the High Court decision dismissing the suit on a preliminary objection was a decree appealable as of right without leave.
  2. Whether the appellants' plaint disclosed a cause of action against the respondent.
  3. Whether the appellants' suit was time-barred under the Limitation Act.

Orders

  • Preliminary objection raised by the respondent dismissed with costs in the cause.
  • Appeal allowed with costs.
  • Ruling of the High Court set aside.
  • High Court Civil Suit No. 55 of 2009 remitted to the High Court for trial before another Judge.
  • Costs in this Court and the lower court awarded against the respondent.

Key headnotes

Civil Procedure — Appeals — Distinction Between Decree and Order — Appeal as of Right
A decision dismissing a suit with costs conclusively determines the rights of the parties and is a decree within the meaning of section 2(c) of the Civil Procedure Act, which is appealable as of right under section 66 without the need for leave.
Civil Procedure — Cause of Action — Test on a Preliminary Objection
In determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annextures, assume the pleaded facts are true, and ascertain whether the plaintiff had a right which was violated by the defendant; the court errs by going beyond the plaint and considering extraneous evidence.
Land & Property — Tenants by Occupancy — Security of Occupancy
Where pleaded particulars of fraud against a registered proprietor's predecessor in title, aimed at defeating the interests of lawful occupants, are set out in the plaint, those particulars disclose a cause of action that the trial court must inquire into rather than reject on a preliminary objection.
Land & Property — Limitation — Suit for Protection of Security of Occupancy Distinguished from Recovery of Land
A suit brought to protect the security of occupancy of a tenant by occupancy under Article 237(8) of the Constitution and section 31(1) of the Land Act is not a suit for recovery of land, and the Limitation Act does not impose a limitation period upon it, those instruments being silent on limitation.
Civil Procedure — Preliminary Objections — Need to Hear Evidence
Where the merits of a claim turn on disputed facts, a matter cannot properly be determined on a preliminary objection without first hearing and evaluating the evidence of the parties.

Legislation cited (10)

  • Civil Procedure Act, Cap.71 s.66
  • Civil Procedure Act, Cap.71 s.76
  • Civil Procedure Act, Cap.71 s.2(c)
  • Civil Procedure Rules, S.I 71-1 Order 43 rule 1
  • Civil Procedure Rules, S.I 71-1 Order 7 rule 11
  • Limitation Act, Cap.80 s.5
  • Limitation Act, Cap.80 s.6(1)
  • Constitution of the Republic of Uganda 1995 Article 237(8)
  • Land Act, Cap.227 s.31(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 rule 30(1)

Cases cited (11)

  • Hwan Sung Limited v M. and D. Timber Merchants and Transporters Limited (Civil Appeal No. 2 of 2018)
  • South British Insurance Co. Ltd v Mohamedali Taibji Ltd [1973] EA 210
  • Jeraj Shariff & Co. v Chotai Fancy Stores (1960) EA 374
  • Mulindwa Birimumaso v Government Central Purchasing Corporation [2004] KALR 348
  • Kabareebe v Nalweyiso (Civil Appeal No. 34 of 2003)
  • Kampala Bottlers v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Zaabwe v Orient Bank and 5 Others (Civil Appeal No. 45 of 2006)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Auto Garage v Motokov (No.3) [1971] EA 514
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Narottam Bhatia and Another v Boutique Shazim Ltd (Civil Appeal No. 16 of 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.