Wakilii

Basudde Matovu and Ors v Tibyasa Matovu and Ors (Civil Appeal No 186 of 2012)

Court of Appeal · [2021] UGCA 122 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court ruling upholding a preliminary objection and striking out the plaint for non-disclosure of a cause of action
Decision
Appeal dismissed; High Court orders striking out the plaint, vacating the caveat and granting a permanent injunction upheld

Observed later treatment

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Holding

The Court of Appeal dismissed a first appeal against the High Court's rejection of a plaint under Order 7 rule 11 of the Civil Procedure Rules. It held that whether a plaint discloses a cause of action is determined only by perusing the plaint and its annextures, assuming the facts pleaded are true. The claim that a registered proprietor held land in trust for a separated wife and children failed because no beneficial interest was traced and no particulars of any trust or fraud were pleaded. Cancellation of a registered title required fraud to be specifically pleaded and proved. The claim was also barred by res judicata and by limitation. The plaint disclosed no reasonable cause of action and was frivolous and vexatious.

Outcome

Appeal dismissed; High Court orders striking out the plaint, vacating the caveat and granting a permanent injunction upheld

Facts

The first appellant married the first respondent in 1963 and lived with him at Lungujja and Masaka; they had children (the other appellants). The couple separated in 1968 and lived apart thereafter. In 1977, some nine years after separation, the first respondent sold land developed along Mityana Road and used the proceeds to buy Busiro Block 367 Plot 143 at Mpogo (about 49 acres), registered in his own name. In January 2009 he transferred that property to the second to seventh respondents, being his second partner and their children, without the appellants' knowledge or consent. The appellants lodged a caveat and sued for a declaration that the land was family land, cancellation of the transfer, and vesting of the property, alleging breach of trust and that the transfer was made while the first respondent was of unsound mind. An earlier suit (HCCS No. 410 of 2003) concerning the Lungujja property had been dismissed and not appealed. The respondents raised a preliminary objection that the plaint disclosed no cause of action and was frivolous and vexatious.

Issues

  1. Whether the amended plaint disclosed a cause of action against the respondents.
  2. Whether the suit was frivolous and vexatious such that it could be struck out and dismissed.
  3. Whether the trial Judge erred in disposing of the suit at a preliminary stage without hearing evidence on the merits.
  4. Whether the claim was barred by res judicata and by the law of limitation.
  5. Whether the appellants had any proprietary or beneficial (trust) interest in the suit land capable of founding a claim to cancel the transfer to the respondents.

Orders

  • Appeal dismissed.
  • Order of the High Court striking out the plaint under Order 7 rule 11 of the Civil Procedure Rules upheld.
  • Order vacating the caveat lodged by the appellants upheld.
  • Order granting a permanent injunction restraining the appellants from interfering with the suit land upheld.
  • Costs awarded to the respondents in this Court and in the High Court.

Rules and key headnotes

Civil Procedure — Rejection of Plaint — Whether Plaint Discloses a Cause of Action
In determining whether a plaint discloses a cause of action under Order 7 rule 11 of the Civil Procedure Rules, the court looks only at the plaint and any documents attached to it, and assumes that the facts pleaded are true; it may not receive or seek other evidence.
Civil Procedure — Rejection under Order 7 rule 11 versus Dismissal under Order 6 rule 30
A plaint rejected under Order 7 rule 11 for disclosing no cause of action cannot at the same time be dismissed under Order 6 rule 30; an objection must be premised on one of these provisions and not both, though a suit shown by the pleadings to be frivolous or vexatious may be dismissed under Order 6 rule 30.
Land & Property — Cancellation of Registered Title — Requirement to Plead and Prove Fraud
The title of a registered proprietor cannot be impeached and a transfer cannot be cancelled unless fraud is specifically pleaded with particulars and strictly proved, and the fraud must be attributable to the transferee in title.
Land & Property — Family Land — Beneficial Interest of Separated Spouse and Children
A separated spouse and children who were never in possession of land registered in the sole name of the other spouse cannot claim a beneficial or family interest in it where no trust arrangement, particulars, or tracing of any beneficial interest are averred in the plaint.
Land & Property — Trusts — Pleading and Limitation of Beneficiary Claims
A claim by an alleged beneficiary to recover trust property must aver the trust and particularise any breach; absent fraud imputable to the transferee, such an action must be brought within six years under section 19(2) of the Limitation Act, and an action to recover land is otherwise barred by sections 5 and 6 of that Act.
Civil Procedure — Res Judicata — Section 7 of the Civil Procedure Act
Where a matter directly and substantially in dispute has been finally decided between the same parties by a competent court and not appealed, the same issue cannot be relitigated as it is barred by res judicata under section 7 of the Civil Procedure Act.

Legislation cited (15)

Cases cited (17)

  • Fr. Narcensio Begumisa and Others v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Uganda Telecom Ltd v ZTE Corporation (Civil Appeal No. 3 of 2017)
  • Mulindwa Birimumaso v Government Central Purchasing Corporation (Civil Appeal No. 2 of 2002)
  • Sheik Mohamed Lubowa v Kitara Enterprises Ltd (Civil Suit No. 4 of 1987)
  • Manshukal Ramji Karia and Anor vs Attorney General and Another, Supreme Court Civil Appeal No. 2002
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • Ismail Karshe ss Uganda Transport Ltd [1967] EA
  • Mortkov vs Auto Grarage 1970 EA / Auto Garage v Motokov (1971) EA 514
  • Sullivan v Ali Mohamed Osman (1959) EA 239
  • Attorney General v Oluoch (1972) EA.392
  • Jeroj Shariff & Co v Chotai Family Stores (1960 EA 374)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • G.L Baker Ltd v Medway Building and Supplies, Ltd [1958] 2 All E.R. 532
  • Thorne v Heard [1895] A.C. 495

Full judgment

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Basudde Matovu and Ors v Tibyasa Matovu and Ors (Civil Appeal No 186 of 2012) 2021 UGCA 122 (11 February 2021)
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.