Wakilii

Administrators of the estate of Sir Edward Muteesa II & Others v Kasasa and Another (Civil Appeal No 152 of 2020)

Court of Appeal · [2022] UGCA 342 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court (Land Division) ruling dismissing a consolidated civil suit on a preliminary point of law, together with an application contesting the competency of the appeal
Decision
Appeal substantially dismissed; trial court's dismissal of HCCS No. 622 of 2003 upheld, with costs orders varied

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Cited — treatment unverified cited in 2 (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 dismissed the appeal in substance, holding that the timing and manner of hearing a preliminary objection is a matter for the trial court's judicious discretion. Consolidation of suits does not merge them into a single action; the suits are combined only for convenience, so the trial judge could dismiss one consolidated suit and save the other. The appellants, having admitted in a later suit that they had lost the land and sought compensation, could not maintain a prior suit to recover the same land — this amounted to approbation and reprobation, applicable to inconsistent pleadings where justice requires and without proof of a received benefit. The Court varied only the costs orders.

Facts

Sir Edward Muteesa II was the registered owner of land at Mutungo Luzira (approximately 640 acres) since 1946. Through a series of transfers between 1968 and 1979, the land passed via Victoria Mpologoma (under a power of attorney), Lake View Properties Ltd, and ultimately into the name of the 1st Respondent, Dr. Muhammed Buwule Kasasa. The Administrator General, on behalf of the late Muteesa's estate, filed Civil Suit No. 622 of 2003 against the 1st Respondent to recover the land. In 2005, the Kabaka and others, including the appellants, filed Civil Suit No. 227 of 2005 against the Attorney General seeking compensation and damages for loss of the same land. The two suits were consolidated as HCCS No. 2139 of 2016. The 1st Respondent raised preliminary objections, and the trial judge dismissed Civil Suit No. 622 of 2003 (recovery) on the ground that pursuing both recovery and compensation for the same land amounted to approbation and reprobation, saving Civil Suit No. 227 of 2005 for trial. The appellants appealed.

Issues

  1. Whether the trial judge erred in declining to hear the consolidated suits on merit and instead hearing a preliminary objection first, contrary to a Court of Appeal order in Civil Appeal No. 102 of 2016.
  2. Whether consolidation of suits merges them into a single action precluding separate determination of one of the constituent suits.
  3. Whether the appellants' conduct in seeking recovery of land in one suit while claiming compensation for the loss of the same land in another amounted to approbation and reprobation.
  4. Whether the preliminary objection was barred by res judicata.
  5. Whether the doctrine of approbation and reprobation could be disposed of as a pure point of law without evidence.
  6. Whether the trial judge erred in relying on matters raised in submissions in rejoinder.
  7. Whether the awards of costs in HCCS No. 622 of 2003 and HCMA No. 44 of 2020 were proper.
  8. Whether the appeal was competently instituted given service of an unsigned notice of appeal.

Orders

  • Civil Application No. 213 of 2020 to strike out the appeal disallowed with no order as to costs.
  • The 2nd Respondent (Attorney General) struck off as a party to the appeal with no order as to costs.
  • The trial judge's order awarding full costs in HCCS No. 622 of 2003 varied; appellants to pay 50% of the taxed costs in the High Court.
  • The award of costs in HCMA No. 44 of 2020 set aside.
  • Appeal substantially dismissed with costs to the 1st Respondent.

Key headnotes

Civil Procedure — Preliminary Objections — Trial Court's Discretion as to Timing of Ruling
The hearing and determination of a preliminary objection, and the timing of any ruling on it, lies within the judicious discretion of the trial court; a court may hear the objection and rule before, at, or after the trial, and an appellate court will not interfere unless material prejudice is shown or the discretion was not exercised judicially.
Civil Procedure — Consolidation of Suits — Effect on Separate Identity of Constituent Actions
Consolidation of actions does not merge the constituent suits into a single action; the suits are combined for convenience to save costs, time and effort, and they retain their separate identities such that a final decision in one consolidated suit may be separately determined and is immediately appealable.
Land & Property — Registration of Titles — Election Between Recovery of Land and Compensation under Section 183
Under section 183 of the Registration of Titles Act, a party may sue for recovery of land or for damages but not both for the same land where the reliefs are not pleaded in the alternative; having elected to claim compensation for land admittedly lost, a party cannot simultaneously maintain a claim to recover that same land.
Civil Procedure — Approbation and Reprobation — Application to Inconsistent Pleadings Without Proof of Benefit
The doctrine of approbation and reprobation may be applied to prevent a party from setting up inconsistent claims in pleadings where justice so requires, and it is not necessary that the party have actually received a benefit from the earlier course of conduct for the doctrine to operate.
Evidence — Admissions — Admitted Facts Need No Proof
A statement in a party's own pleadings constitutes an admission under sections 16 and 17 of the Evidence Act, and an admitted fact need not be proved; where a party expressly admits in pleadings that the land has been lost, a court may rely on that admission to determine a preliminary point of law without taking further evidence.
Civil Procedure — Res Judicata — Distinction Between Application to Reject Plaint and Dismissal on Preliminary Point of Law
A ruling rejecting an application to strike out a plaint under Order 6 rule 30 does not render res judicata a subsequent preliminary objection raising a distinct pure point of law, since an application to reject a plaint and a dismissal of a suit on a preliminary point of law are conceptually distinct.

Legislation cited (10)

  • Registration of Titles Act s.183
  • Registration of Titles Act s.183(1)
  • Civil Procedure Rules Order 12 rule 1
  • Civil Procedure Rules Order 15 rule 1
  • Civil Procedure Rules Order 15 rule 2
  • Civil Procedure Rules Order 6 rule 30
  • Civil Procedure Rules Order 7 rule 11(a)
  • Evidence Act s.16
  • Evidence Act s.17
  • Constitution of the Republic of Uganda Article 129

Cases cited (22)

  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • National Enterprises Corporation v Mukisa Foods Ltd (Civil Appeal No. 42 of 1997)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Uganda Telecom Ltd v ZTE Corporation (Civil Appeal No. 3 of 2017)
  • Hall vs Hall, 584 U.S (2018)
  • Kivamukuteesa Consumers Vs Sebugwawo (1986) HCB 61 AT 62
  • Patrick Nkoba Vs Rwenzori Highlands Tea & Anor (1999) KALR 67
  • Mabirizi v M. Shah & Co. Ltd (Civil Appeal No. 45 of 2015)
  • Prem Lela Nahata & Anor v Chand Prasad Sikaria (Civil Appeal No. 446 of 2007)
  • Banque Des Marchands De Moscou (Koupetschesky) Versus Kindersley (1951) Ch 112 at 119
  • Lissenden Versus Bosch (Cav) Ltd AC 412 at 417-418
  • Evans Versus Bartlam (1937) AC 473, (1937) 2 ALL ER 646
  • MPB Versus LGK (2020) EWHC 90
  • PT Building Services Limited Versus ROK Build Limited [2008] EWHC 3434 (TCC)
  • Express Newspapers plc vs. News (UK) Ltd and others [1990] 3 All ER 376
  • Wycliffe Kiggundu Kato v Attorney General (Civil Appeal No. 27 of 1993)
  • Nurdin Ali Dewji & ors vs. Meghji & ors (1953) 20 EACA 132
  • Mukisa Biscuits Versus West End Distributors (1969) EA 696 at 701
  • Nas Airport Services Ltd Versus the Attorney General of Kenya (1959) 1 EA 53
  • Daniel Toroitich Arap Moi & Anor Vs Mwangi Stephen Murith & Anor (2014) E KLR
  • Mutembuli Yusuf v Nagwomu Moses Mutyabule (Election Petition No. 43 of 2016)
  • Jenkins v Bushby (1189}1 1Ch. 484
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