Wakilii

Walusimbi and 3 Others v Senyimba TA CharlestonGeneral Auctioneers and 3 Others (Civil Appeal 86 of 2013)

Court of Appeal · [2020] UGCA 2149 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing a suit on preliminary objections (rejection of plaint and dismissal on points of law)
Decision
Appeal allowed; trial court ruling set aside and suit remitted to the High Court for hearing on the merits

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that where a plaint pleads fraud and illegality, those issues raise questions of fact that must be tried on evidence and cannot be disposed of on preliminary objection. Section 34(1) of the Civil Procedure Act is not an absolute bar to a fresh suit after execution is completed; section 50 permits a suit against a purchaser for fraudulent acquisition. A court bailiff's immunity under section 46(2) of the Judicature Act applies only to lawful acts and cannot be decided on the pleadings where fraud is alleged. The trial judge wrongly conflated rejection of a plaint with dismissal on a point of law and wrongly found no cause of action. The appeal was allowed and the suit remitted for trial on the merits.

Facts

Anita Basudde sued the appellants for trespass on Block 265 Plot 1217. A consent decree was entered requiring instalment payments, which the appellants partly defaulted. The judgment creditor obtained a warrant of attachment and sale covering Plot 1217 and Plot 1218. The property was valued by an allegedly unregistered firm at UGX 235,000,000, far below other valuations exceeding UGX 2.6 billion. The first respondent, a court bailiff, sold the property to the second respondent, who later sold to the third and fourth respondents. The appellants had filed an application objecting to the attachment which was never heard before the sale. The appellants, whose schools housing about 1,500 pupils stood on the land, then sued seeking declarations that the attachment and sale were fraudulent, cancellation of the sale, and damages. The High Court dismissed the suit on preliminary objections, holding the bailiff immune, the suit barred under section 34 CPA, and the plaint disclosing no cause of action. The appellants appealed.

Issues

  1. Whether a plaint that pleads fraud and illegality in the attachment and sale of property can be rejected or the suit dismissed on preliminary objection without first hearing evidence.
  2. Whether section 34(1) of the Civil Procedure Act is an absolute bar to a fresh suit after execution by attachment and sale has been completed.
  3. Whether a court bailiff's immunity under section 46(2) of the Judicature Act can be determined on the pleadings alone where fraud and illegality are alleged.
  4. Whether the trial judge erred in conflating rejection of a plaint under Order 7 rule 11 with dismissal of a suit on a point of law under Order 6 rule 29.
  5. Whether the plaintiffs disclosed a cause of action and an interest in the suit property.

Orders

  • Appeal allowed.
  • Ruling of the learned trial judge set aside.
  • The suit of the appellants be heard and determined on the merits.
  • Costs of the appeal and of the court below to the appellants.

Key headnotes

Civil Procedure — Preliminary Objections — Pleadings of Fraud and Illegality Require Trial on Evidence
Where a plaint pleads fraud and illegality, those allegations raise questions of fact that must be tried on evidence and cannot be disposed of summarily on a preliminary point of law decided on the pleadings alone.
Civil Procedure — Rejection of Plaint and Dismissal on Point of Law — Distinction between Order 7 rule 11 and Order 6 rule 29
Rejection of a plaint under Order 7 rule 11 for disclosing no cause of action or being barred by law is determined on a perusal of the plaint alone and is mandatory, and is distinct from the dismissal of a suit on a point of law under Order 6 rule 29, which presupposes that the plaint discloses a cause of action; the two must not be conflated.
Civil Procedure — Execution — Section 34(1) Civil Procedure Act Not Absolute Bar to Fresh Suit
Section 34(1) of the Civil Procedure Act is not an absolute bar to instituting a fresh suit after execution by attachment and sale has been completed; a separate suit may lie, particularly where fraud is alleged.
Land & Property — Court Sale in Execution — Suit Against Purchaser for Fraudulent Acquisition
Although a sale of immovable property in execution becomes absolute on payment of the full purchase price under section 49 of the Civil Procedure Act, a suit may be maintained against a purchaser under section 50(2) of the Act and section 176 of the Registration of Titles Act to set aside or impeach a title acquired fraudulently, fraud being a question of fact requiring evidence.
Judicature Act — Court Bailiff Immunity — Section 46(2) Limited to Lawful Acts
The immunity granted to a court bailiff under section 46(2) of the Judicature Act protects only lawful or authorised acts done in execution of a court warrant and does not extend to acts alleged to be fraudulent or unlawful; where such allegations are pleaded, the immunity cannot be determined on the pleadings alone.
Civil Procedure — Declaratory Relief — Order 2 rule 9
Under Order 2 rule 9 of the Civil Procedure Rules a suit is not open to objection merely because a declaratory judgment is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.

Legislation cited (32)

  • Judicature Act s.46(1)
  • Judicature Act s.46(2)
  • Civil Procedure Act s.34(1)
  • Civil Procedure Act s.49
  • Civil Procedure Act s.50
  • Civil Procedure Act s.50(2)
  • Civil Procedure Act s.92
  • Civil Procedure Rules Order 6 rule 28
  • Civil Procedure Rules Order 6 rule 29
  • Civil Procedure Rules Order 6 rule 30
  • Civil Procedure Rules Order 7 rule 11
  • Civil Procedure Rules Order 7 rule 11(a)
  • Civil Procedure Rules Order 7 rule 11(d)
  • Civil Procedure Rules Order 15 rule 2
  • Civil Procedure Rules Order 22 rule 75
  • Civil Procedure Rules Order 22 rule 77
  • Civil Procedure Rules Order 22 rule 78
  • Civil Procedure Rules Order 2 rule 9
  • Registration of Titles Act s.176
  • Registration of Titles Act s.181
  • Surveys Act Cap 232 s.9(1)
  • Surveys Act Cap 232 s.10(1)(a)
  • Surveys Act Cap 232 s.18(1)
  • Surveyors Registration Act Cap 275 s.19(3)
  • Surveyors Registration Act s.27(1)
  • Stamps Act Cap 342 s.2
  • Land Act s.31
  • Land Act s.32
  • Land Act s.35
  • Constitution of the Republic of Uganda article 237
  • Rules of the Court of Appeal Rule 30(1)(a)
  • Judicature (Court Bailiffs) Rules rule 11(4)

Cases cited (35)

  • Auto Garage and others v Motokov [1971] EA 514
  • Bifabusha v Turyazooka [2000] 2 EA at page 333
  • Mistry Amar Singh v Kulubya [1963] 3 All ER
  • Kisugu Quarries Ltd v Administrator General [1999] 1 EA
  • Bowmakers Ltd v Barnet Instruments Ltd [1945] All ER at page 582 and 583
  • Ethiopian Airlines v Olowu Motunrola (Civil Appeal No. 43 of 2005)
  • Makura International v His Eminence Cardinal Nsubuga and another (1982) HCB 11
  • Mercantile Credit Co Ltd v Hamblin [1964] 1 All ER 680
  • Bostel Brothers Ltd v Hurlock [1948] 2 All ER 312
  • Hajj Abdul Nasser Katende v Vithaldas Haridas & Co Ltd (Civil Appeal No. 84 of 2003)
  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Joyce Kinyankwanzi v Hezekia K Ndugga and Another [1974] HCB 296
  • Francis Micah v Nuwa Walakira (Civil Appeal No. 24 of 1994)
  • Tororo Cement Company Ltd v Frokina International Ltd (Civil Appeal No. 21 of 2001)
  • Jeraj Sharif v Chotai Fancy [1960] EA 374
  • Regina Bagada v The Cooperative Bank Ltd [2000] KALR 737
  • Goodlock v Cousins [1897] 1 QB 558
  • Creameries Ltd v Hull & Netherlands Steamship Company Limited (1921) KB 608 at 612
  • Kampala Bottlers Ltd v Damanico (Civil Appeal No. 22 of 1992)
  • Cullimore v Lyme Regis Corporation [1961] 3 All E.R. 1008
  • Kiggundu v Attorney General (Civil Appeal No. 27 of 1993)
  • Iga v Makerere University [1972] EA 65
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Oluoch [1972] EA 392
  • Nurdin Ali Dewji & others v G.M.M Meghji & Co. and Others (1953) 20 EACA 132
  • Drummond Jackson v British Medical Association [1970] 1 ALL ER 1094
  • NAS Airport Services Limited v The Attorney-General of Kenya [1959] 1 EA 53 (CAN)
  • Everett v. Ribbands [1952] 2 Q.B. 198 at p. 206
  • Curtis v Maloney [1950] 2 All ER 982
  • Dyal Singh v Kenyan Insurance Ltd [1954] 1 All E.R 847 PC
  • Guaranty Trust Company of New York v Hannay and Company Limited [1915] 2 KB 536 at page 562
  • Peters v Sunday Post Limited [1958] 1 EA 424
  • Kabwengure v Charles Kanjabi [1977] HCB 89
  • Venansio Bakweyaka v Kampala District Land Board (Civil Appeal No. 20 of 2002)
  • Uganda Posts & Telecommunications v Ibrahim Katumba (Civil Appeal No. 36 of 1995)
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