Wakilii

Mbarara Municipal Council v Natta Mary Nalongo (H.C.C.S. NO. MMB 44 1997 ) (H.C.C.S. NO. MMB 44 1997)

High Court · [2005] UGHC 98 · 2005 Counterclaim Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of property; plaintiff's plaint rejected and struck out; defendant's counterclaim proceeded to hearing
Decision
Plaint rejected and struck out; counterclaim granted with damages, declaratory relief, eviction order, and permanent injunction in favour of the defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The plaint was rejected and struck out for failure to disclose a cause of action and defective service. However, the counterclaim survived as a separate proceeding under Order 8 rule 13 of the Civil Procedure Rules. The defendant validly purchased Plot 55 Bulemba Road including the house she occupied. No fraud was established. The defendant was awarded general damages of UGX 4,000,000 for seven years of denied access, and granted declaratory and injunctive relief confirming her ownership and restraining the plaintiff from trespassing.

Outcome

Plaint rejected and struck out; counterclaim granted with damages, declaratory relief, eviction order, and permanent injunction in favour of the defendant

Facts

In 1995, Mbarara Municipal Council advertised sale of houses in Kakoba Housing Estate. The defendant, an erstwhile tenant, purchased House 55 for UGX 5,100,000. A survey was later conducted and the property was allocated as Plot 55 Bulemba Road, which included another house. Title was registered in the defendant's name. The plaintiff filed suit in 1997 but failed to serve process within time. Extension was granted requiring service within 15 days, but service occurred 22 days later. The defendant filed defence and counterclaim. On preliminary objection in 2003, the court rejected the plaint for failing to disclose a cause of action and struck out the suit for defective service. The defendant sought to proceed with her counterclaim, to which the plaintiff objected on procedural grounds.

Issues

  1. Whether the counterclaim could survive after the plaint was rejected and struck out.
  2. What property the defendant bought from the plaintiff — a plot with one house or two houses.
  3. Whether the defendant's title is tainted with fraud.
  4. Whether the defendant is entitled to the remedies sought in the counterclaim.

Orders

  • Judgment for the defendant in the counterclaim.
  • Award of UGX 4,000,000 as general damages.
  • Declaration that the defendant is the rightful owner of Plot 55 Bulemba Road, Mbarara.
  • Eviction order against the plaintiff's agents, servants, and employees from Plot 55 Bulemba Road, Mbarara.
  • Permanent injunction restraining the plaintiff, its agents, employees, and servants from trespassing on Plot 55 Bulemba Road, Mbarara.
  • Costs of the counterclaim awarded to the defendant.

Rules and key headnotes

Counterclaim — Survival After Rejection of Plaint
A counterclaim may proceed as a separate suit even after the plaint has been rejected and struck out, provided it complies with Order 8 rule 13 of the Civil Procedure Rules, which contemplates continuation of a counterclaim where the plaint is put out of action by stay, discontinuance, dismissal, rejection, or striking out.
Counterclaim — Form and Requirements
Where a defence and counterclaim are filed as a single pleading, payment of the prescribed counterclaim fee, and the inclusion of a section clearly labelled as counterclaim satisfy the requirements of Order 8 rule 7 of the Civil Procedure Rules, which mandates that the person making a counterclaim must state specifically that he does so by way of counterclaim.
Registration of Titles — Certificate of Title as Conclusive Evidence
Under section 59 of the Registration of Titles Act, a certificate of title is conclusive evidence of title, and a court may go behind the register only in cases of actual fraud by the transferee, which must be proved strictly in accordance with the principles in Kampala Bottlers v Damanico (U) Ltd requiring the transferee to be guilty of fraudulent acts or to have knowingly taken advantage of another's fraud.
Sale of Property — What Passes on Sale of House
Where municipal property comprising houses is sold subject to future survey and demarcation of plots, the purchaser acquires not merely the house but the land comprised in the subsequently registered title, as it is idle to imagine a purchaser could buy a house not situate on land.
Special Damages — Pleading and Proof
Special damages must be specifically pleaded and strictly proved with relevant evidence, following the principle in Masaka Municipal Council v Semogerere; where such evidence is not adduced, no award of special damages or mesne profits can be made.
General Damages — Assessment for Denial of Possession
A registered proprietor denied quiet possession of property for seven years is entitled to general damages to compensate for anxiety and inconvenience suffered, even where the claimant fails to adduce evidence justifying the specific quantum claimed.

Legislation cited (7)

Cases cited (4)

  • Nampera Trading Co v Yusufu Ssemwanje & Anor [1973] I ULR 69
  • Kyamulesire v Bikanculika (H.C.C.S. No. 254 of 1992)
  • Kampala Bottlers v Damanico (U) Ltd (S.C.C.A. No. 22 of 1992)
  • Masaka Municipal Council v Semogerere [1998-2000] HCB 23

Full judgment

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

Mbarara Municipal Council v Natta Mary Nalongo (H.C.C.S. NO. MMB 44_1997 ) (H.C.C.S. NO. MMB 44_1997) [2005] UGHC 98 (16 February 2005)
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.