Wakilii

Kamwine v Tumusiime and 3 Others (Civil Suit 96 of 2021)

High Court · [2023] UGHCLD 347 · 2023 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection by plaintiff to strike out written statement of defence of 1st and 2nd defendants
Decision
Preliminary objection dismissed; main suit to proceed to trial on merits

Observed later treatment

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

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that a preliminary objection must be a pure point of law arising on the face of the pleadings, not requiring evidence or exercise of judicial discretion. Where the competency challenge to a written statement of defence alleges illegalities in acquiring a freehold title and claims the defence is evasive, but both grounds require adducing evidence and do not constitute pure points of law, the preliminary objection fails. The questions of whether defendants properly obtained a freehold title and whether they acted without letters of administration are factual matters requiring proof at trial, not suitable for determination at the preliminary objection stage. Preliminary objection dismissed with costs to the defendants.

Outcome

Preliminary objection dismissed; main suit to proceed to trial on merits

Facts

The plaintiff instituted a suit seeking recovery of land, declarations that the 1st and 2nd defendants were trespassers who fraudulently obtained a freehold certificate of title, and cancellation of that title. The plaintiff claimed the defendants obtained the freehold title while the land was subject to a court dispute and without following proper procedures, including public hearings required under the Land Act and Land Regulations. The plaintiff also alleged the defendants dealt with property of the late Restetua Rwamukonjo without letters of administration. The plaintiff raised a preliminary objection seeking to strike out the defendants' written statement of defence on grounds it disclosed illegalities and was frivolous, vexatious and evasive. The defendants responded that the plaintiff's mother's lease had expired, the land reverted to the district land board, and they lawfully applied for and obtained freehold titles.

Issues

  1. Whether the written statement of defence of the 1st and 2nd defendants is competent before this court.
  2. Whether the joint written statement of defence entails illegalities in terms of acquiring a freehold title from a leasehold.
  3. Whether the joint written statement of defence is frivolous, vexatious and evasive and fails to disclose any reasonable answer to the plaintiff's claim.

Orders

  • Preliminary objection overruled and dismissed.
  • Costs of the preliminary objection awarded to the 1st and 2nd defendants.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Requirements — Pure Point of Law
A preliminary objection must consist of a pure 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 suit. It is in the nature of a demurrer and is argued on the assumption that all facts pleaded by the other side are correct. A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Civil Procedure — Striking Out Pleadings — Allegations Requiring Proof
Where a preliminary objection alleges that a written statement of defence discloses illegalities in how a party acquired title to land, such allegations are not pure points of law but require adducing evidence from both parties. Such matters are not suitable for determination at the preliminary objection stage but must be determined at trial on the merits.
Civil Procedure — Frivolous and Vexatious Pleadings — Test
A proceeding is vexatious when the party bringing it is not acting bona fide and merely wishes to annoy or embarrass the opponent, or when it is not calculated to lead to any practical result. An answer or plea is frivolous when it is clearly insufficient on its face, does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the plaintiff. Whether a defence is frivolous or vexatious on the basis of alleged illegal acquisition of title is a matter requiring proof and cannot be determined on a preliminary objection.

Legislation cited (14)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] 1 EA 696
  • Ham Enterprises and 2 Others v DTB and Another (HCMA No. 654 of 2020)
  • Makula International v His Eminence Cardinal Nsubuga and Another (1982) HCB
  • Ludula and 6 Others v Rev. Canon Luzinda and Others (HCCS No. 2029 of 2016)
  • Daphine Negesa Musoke v Samu Investments Ltd (CACA No. 85 of 2003)
  • Dr. Adeo Danta Kekitiinwa and 3 Others v Edward Mando Wakida (CACA No. 3 of 1997)
  • Pontrilas Investments Ltd v Central Bank of Kenya and The Attorney General of the Republic of Kenya (Reference No. 8 of 2017)
  • Attorney General of the Republic of Kenya vs Independent Medical Legal Unit

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kamwine_v_Tumusiime_and_3_Others_(Civil_Suit_96_of_2021)_[2023]_UGHCLD_347_(20_October_2023)
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.