Wakilii

Rama Makuza v Nakamya & Ors (Ma No. 140 of 2013)

High Court · [2013] UGHCLD 32 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss or strike out written statement of defence arising from civil suit for property transfer and recovery of money
Decision
Application dismissed; main suit HCCS No. 247 of 2011 to proceed to full trial

Observed later treatment

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Holding

Held that the application to dismiss or strike out the written statement of defence lacked merit. The allegations of fraud could not be proved in an interlocutory application without evidence being adduced at trial. The failure to attach supporting documents to the defence was addressed by procedural rules allowing leave to produce documents at hearing. The attachment of a document in a local language did not render the defence illegal, as translation could be ordered when evidence is adduced. The defence was neither defective on its face nor disclosed such fundamental defects that no amendment could cure them. The matters raised triable issues to be resolved at full trial.

Outcome

Application dismissed; main suit HCCS No. 247 of 2011 to proceed to full trial

Facts

The applicant purchased land described as Kibuga Block 26 Plot 284 from the 1st respondent's father, Musa Mpagi, in 1993. Musa Mpagi died in 2002 before transferring the property. The property was registered in the name of Musa Mpagi's mother, Ajija Nabukalu. In 2004, the 1st respondent obtained letters of administration for her father's estate. In 2006, the 1st respondent allegedly obtained letters of administration for Ajija Nabukalu's estate and transferred the property into her own name. In 2009, the 1st respondent approached the applicant offering to transfer the property to his name for facilitation fees. The applicant paid UGX 17,000,000 in five installments to the three respondents, who signed acknowledgments. The respondents disappeared when the applicant insisted the balance would only be paid upon delivery of the certificate of title in his name. The applicant instituted the main suit seeking a declaration of ownership, cancellation of the 1st respondent's name, registration in his name, a permanent injunction, and recovery of the money paid. The respondents filed a written statement of defence. The applicant then brought this interlocutory application to dismiss or strike out the defence on grounds of fraud, illegality, and for being frivolous and vexatious.

Issues

  1. Whether the written statement of defence should be dismissed on account of fraud.
  2. Whether the written statement of defence should be dismissed for being frivolous and vexatious.
  3. Whether the written statement of defence should be struck out on the ground that it discloses no reasonable answer to the suit.
  4. Whether the written statement of defence should be struck out on grounds of illegality.

Orders

  • Application dismissed without costs.

Rules and key headnotes

Civil Procedure — Striking Out Pleadings — Standard for Dismissing or Striking Out Defence — Fraud Must Be Proved at Trial
Allegations of fraud cannot be proved in an interlocutory application to dismiss or strike out a written statement of defence; such allegations must be proved by evidence adduced at a full trial where the respondent has the opportunity to respond.
Civil Procedure — Evidence — Documents Not Produced with Pleading — Remedy Under Order 7 Rule 18
The failure to attach documents referenced in a written statement of defence does not render the defence fraudulent or defective; Order 7 rule 18 of the Civil Procedure Rules provides that such documents may not be admitted in evidence without leave of court, which is the appropriate remedy rather than striking out the pleading.
Civil Procedure — Language of Court — Documents in Local Language
The attachment of a document written in a local language to a pleading does not render the pleading illegal; the court may direct that such documents be translated into English when evidence is adduced, at which time both the original and the translated copy shall be admitted.
Civil Procedure — Striking Out Pleadings — Inherent Powers — When Court Will Strike Out Defence
A court will use its inherent powers to strike out a defective written statement of defence only where the defect is apparent on the face of the record and where no amount of amendment will cure the defect, in order to stop proceedings which should not have been brought and to protect parties from futile and useless proceedings.
Land Law — Conveyancing — Triable Issues — Proprietary Rights
Where a dispute concerns proprietary rights over land and involves allegations regarding the validity of a purported sale and subsequent transfer, such matters raise triable issues which must be resolved at a full trial and not by way of an interlocutory application.

Legislation cited (10)

Cases cited (3)

  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Bank of Uganda & 2 Ors -vs- Basajjabalaba Hides & Skins & 7 Ors
  • Kayondo v Attorney General [1988-1990] HCB 127

Full judgment

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

Rama Makuza v Nakamya & Ors (Ma No. 140 of 2013) [2013] UGHCLD 32 (25 March 2013)
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.