Wakilii

Makaru v Tumwebaze (Hct-05-cv-ma-cs-0125-2008)

High Court · [2008] UGHC 173 · 2008 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to amend plaint following preliminary objections in High Court civil matter
Decision
Application dismissed and original plaint rejected for failing to disclose a cause of action

Observed later treatment

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Holding

Held that the applicant's purported withdrawal of M.A. 78/2008 without leave of court contravened Order 25 r.1(2) CPR, leaving that application pending and barring M.A. 125/2008 under s.6 Civil Procedure Act. Additionally, the original plaint disclosed no cause of action under Auto Garage v Motokov principles because it failed to establish a tenancy right with supporting facts or agreement. No amendment can cure a plaint that lacks the essential elements of a cause of action. Application and original plaint rejected.

Outcome

Application dismissed and original plaint rejected for failing to disclose a cause of action

Facts

The applicant, Ben Makaru, filed M.A. 125/2008 seeking to amend the plaint in Civil Suit No. 42/2007. The applicant had earlier filed M.A. 78/2008 seeking similar amendments but purportedly withdrew it by notice without seeking leave of court. The respondent, John Tumwebaze, raised preliminary objections including that M.A. 78/2008 remained pending, that service of M.A. 125/2008 was three days late under Order 12 r.3(2) CPR, and that the original plaint disclosed no cause of action. The original plaint averred that the applicant was a sitting tenant of government property on Plot M11 Mbaguta Street, Mbarara, and that the respondent had obtained a lease offer from the Uganda Land Commission in violation of government policy favouring sitting tenants. The plaint sought declarations that the lease offer was unlawful. The court found that the purported withdrawal of M.A. 78/2008 was invalid and that the original plaint lacked essential elements establishing a cause of action.

Issues

  1. Whether M.A. 125/2008 can be heard while M.A. 78/2008 seeking to amend the same plaint is still pending before the court.
  2. Whether the purported withdrawal of M.A. 78/2008 without leave of court under Order 25 r.1(2) CPR is valid.
  3. Whether service of M.A. 125/2008 three days outside the 15-day period under Order 12 r.3(2) CPR invalidates the application.
  4. Whether the original plaint discloses a cause of action capable of being cured by amendment.

Orders

  • Application dismissed.
  • Original plaint (Civil Suit No. 42/2007) rejected under Order 7 r.11(a) for failing to disclose a cause of action.
  • Costs of the main suit and this application awarded to the Respondent/defendant.
  • Ag. Deputy Registrar to deliver the Ruling.

Rules and key headnotes

Civil Procedure — Withdrawal of Suit — Leave of Court Required After Hearing Date Fixed
Where an application has been set down for hearing, the plaintiff cannot withdraw or discontinue it without leave of court as required by Order 25 r.1(2) of the Civil Procedure Rules. A purported withdrawal by notice alone without such leave or consent of the respondent is invalid and the application remains pending.
Civil Procedure — Concurrent Applications — Section 6 Civil Procedure Act
Where one application to amend a plaint is pending before the court, a second application seeking to amend the same plaint cannot be heard by virtue of s.6 of the Civil Procedure Act, which prohibits concurrent proceedings on the same matter.
Civil Procedure — Pleadings — Cause of Action — Auto Garage Test
A plaint discloses a cause of action only if it establishes that the plaintiff enjoyed a right, that the right has been violated, and that the defendant is liable. If any of these essential elements is missing, the plaint is a nullity and no amendment can cure it. The plaint must be rejected under Order 7 r.11(a) CPR.
Civil Procedure — Pleadings — Tenancy Claim Must Be Supported by Facts or Agreement
A plaint alleging tenancy rights must plead facts or attach a tenancy agreement establishing the existence and terms of the tenancy. A bare assertion of being a sitting tenant without supporting facts or documentation fails to establish the right necessary to constitute a cause of action.
Civil Procedure — Service of Process — Delay of Three Days — Substantive Justice Over Technicality
Where service of a chamber summons is effected three days outside the 15-day period prescribed by Order 12 r.3(2) CPR but the respondent and counsel attend and oppose the application without suffering any prejudice, the short delay will not invalidate the proceedings. Substantive justice under Article 126(2)(e) of the Constitution prevails over technicalities where no injustice is occasioned.

Legislation cited (9)

Cases cited (4)

  • Muhondo v Semakulo [1982] HCB 27
  • Mark Okello v David Wasaiia (Court of Appeal Civil Reference No. 54 of 2005)
  • Auto Garage v Motokov [1971] EA 514
  • Augustine Tibaruha and Others v Ibaka Group Credit Finance (High Court Miscellaneous Application No. 72 of 2000)

Full judgment

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

Makaru v Tumwebaze (Hct-05-cv-ma-cs-0125-2008) [2008] UGHC 173 (15 December 2008)
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.