Wakilii

Sebowa v Nalule (Miscellaneous Application 1402 of 2023)

High Court · [2023] UGHCLD 398 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Miscellaneous application arising from civil suit seeking dismissal of underlying land suit on grounds of limitation, locus standi, want of cause of action, non-compliance with court directions, and security for costs
Decision
Application to strike out the underlying civil suit dismissed; matter to proceed to full hearing in Civil Suit No. 321 of 2022

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application seeking to strike out the underlying land suit on preliminary grounds. All five grounds raised — limitation, locus standi, want of cause of action, non-compliance with court directions, and security for costs — were held to raise contested factual issues requiring evidence at trial rather than determination on pleadings alone under Order 6 rule 29 CPR. The court held that the suit disclosed triable issues including fraud allegations and identity questions under the doctrine of idem sonans.

Outcome

Application to strike out the underlying civil suit dismissed; matter to proceed to full hearing in Civil Suit No. 321 of 2022

Facts

The applicant, registered proprietor of land in Kyadondo Block 169 Plot 32 since 1984, purchased the property from Nalule Kulistina who executed transfer documents in his favour. He enjoyed uninterrupted possession until 2022 when the respondent, administrator of the estate of the late Nalule Christine, filed Civil Suit No. 321 of 2022 claiming the land forms part of the estate. The applicant sought dismissal on grounds that the suit was filed 38 years after his registration (limitation), the respondent lacked standing as the vendor was Nalule Kulistina not Nalule Christine, and the plaint disclosed no cause of action. The respondent asserted that Nalule Christine and Nalule Kulistina referred to the same person, pleaded fraud particulars in the plaint, claimed only discovering the fraud in 2022, and maintained that the family remained in possession of part of the land including burial grounds.

Issues

  1. Whether the application holds merit to warrant the dismissal of Civil Suit No. 321 of 2022 under Order 6 rule 29 of the Civil Procedure Rules?
  2. Whether Civil Suit No. 321 of 2022 is time barred under the Limitation Act?
  3. Whether the respondent/plaintiff has locus standi to institute Civil Suit No. 321 of 2022?
  4. Whether the plaint vide Civil Suit No. 321 of 2022 discloses any cause of action against the applicant?
  5. Whether Civil Suit No. 321 of 2022 should be struck out for failure by the respondent to comply with court directions?
  6. Whether the respondent/plaintiff should be ordered to deposit security for costs?

Orders

  • Application dismissed.
  • Point of law overruled.
  • Costs of the application to be in the main cause.

Rules and key headnotes

Civil Procedure — Dismissal of Suits — Order 6 Rule 29 CPR — Determination on Pleadings Alone
In considering applications under Order 6 rule 29 CPR, the court considers only the pleadings and annexures thereto, not subsequent affidavits or evidence. A preliminary point of law must be capable of disposing of the matter without resort to ascertaining facts from elsewhere apart from the pleadings alone.
Civil Procedure — Preliminary Objections — Points of Law Must Not Depend on Disputed Facts
A preliminary objection premised on a point of law must not deal with disputed facts and must not derive its foundation from factual information which stands to be tested by normal rules of evidence. Where a point of law raises issues of evidence requiring proof, it is to be overruled.
Land & Property — Limitation — Fraud Exception under Section 25 Limitation Act
Under Section 25 of the Limitation Act, where an action is based upon fraud, the period of limitation does not begin to run until the plaintiff discovers the fraud. Whether a plaintiff discovered fraud at a particular time and whether they were prevented by sufficient cause from instituting suit during the limitation period are issues requiring evidence and cannot be determined on pleadings alone in a preliminary objection.
Civil Procedure — Locus Standi — Idem Sonans Doctrine Applied to Party Names
Under the doctrine of idem sonans, where a name in a legal document, though different from the correct spelling, conveys to the ears when pronounced a sound practically identical with the sound of the correct name as commonly pronounced, it may be sufficient designation of the individual person referred to. Absolute accuracy in spelling names is not required in legal documents.
Civil Procedure — Cause of Action — Test for Striking Out Pleadings
A cause of action connotes every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support their right to judgment. In ascertaining whether a plaint discloses a cause of action, court should limit itself to the plaint and annexures thereto. No suit should be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.
Civil Procedure — Non-Compliance with Court Directions — Article 126(2)(e) Constitution
Article 126(2)(e) of the Constitution of Uganda provides for substantive hearing of matters on their merits without undue regard to technicalities. Where pre-trial steps have been substantially complied with, it would be unfair to deny a party a hearing on grounds of technical non-compliance with filing directions.

Legislation cited (16)

  • Judicature Act Cap.13 s.33
  • Civil Procedure Act Cap.71 s.98
  • Limitation Act Cap.80 s.5
  • Limitation Act Cap.80 s.25
  • Civil Procedure Rules SI-71-1 Order 6 rule 29
  • Civil Procedure Rules SI-71-1 Order 6 rule 30
  • Civil Procedure Rules SI-71-1 Order 7 rule 6
  • Civil Procedure Rules SI-71-1 Order 7 rule 11(a)
  • Civil Procedure Rules SI-71-1 Order 7 rule 11(d)
  • Civil Procedure Rules SI-71-1 Order 7 rule 11(e)
  • Civil Procedure Rules SI-71-1 Order 26 rule 1
  • Civil Procedure Rules SI-71-1 Order 26 rule 2(1)
  • Civil Procedure Rules SI-71-1 Order 26 rule 3
  • Civil Procedure Rules SI-71-1 Order 52 rule 1
  • Civil Procedure Rules SI-71-1 Order 52 rule 3
  • Constitution of Uganda 1995 as amended Article 126(2)(e)

Cases cited (12)

  • Libyan Arab Bank v Intrepco Ltd (1985) HCB 73
  • Yaya Farajalla v Obur Ronald & 3 Others (Court of Appeal No. 0081 of 2018)
  • Robert A Lusweswe v GW Kasule & Anor (1987) HCB 82
  • Iga v Makerere University [1972] EA 65
  • Mukisa Biscuits v West End Distributors [1969] EA 696
  • Orr Vs Byers, by the Court of Appeal of California 1988
  • Glady Nduku Nthuki v Letshego Kenya & Anor (Kenya High Court Civil Suit No. 007 of 2021)
  • Tororo Cement Co Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 2 of 2001)
  • Auto Garage & Anor v Motokov [1971] EA 514
  • Kebirungi v Road Trainers Ltd & 2 Others [2008] HCB 72
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)
  • Galukande v Kibirige (Miscellaneous Application No. 261 of 2018)

Full judgment

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

Sebowa_v_Nalule_(Miscellaneous_Application_1402_of_2023)_[2023]_UGHCLD_398_(23_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.