Wakilii

Warsame v Osege (HCT-04-CV-CS-0003-2013)

High Court · [2013] UGHCCD 111 · 2013 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory ruling on preliminary objection seeking judgment on admission or striking out of defence
Decision
Preliminary objection partly allowed; hearsay evidence struck out; matter to proceed to trial

Observed later treatment

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Holding

The court dismissed the plaintiff's preliminary objection seeking judgment on admission or striking out of the defence. The court held that no sufficiently clear admission had been made requiring notice under O.13 r.4 CPR before seeking judgment on admission. The written statement of defence was not frivolous or vexatious and disclosed a defence case. However, newspaper reports annexed to the defence were struck out as inadmissible hearsay evidence violating section 59 of the Evidence Act. The defendant retained the right to plead defences of illegality, act of God, and ex turpi causa.

Outcome

Preliminary objection partly allowed; hearsay evidence struck out; matter to proceed to trial

Facts

The plaintiff, a businesswoman, claimed UGX 67,000,000 from the defendant as money had and received. The plaintiff alleged she gave the defendant UGX 70,000,000 to purchase Kenyan shillings, he returned UGX 3,000,000, but claimed the balance was robbed from him. The defendant admitted being in a money-lending partnership with the plaintiff but pleaded the transaction was illegal, that he suffered a robbery (an act of God), and relied on the maxim ex turpi causa. He attached newspaper reports of the robbery. The plaintiff's counsel raised a preliminary objection seeking judgment on admission or striking out the defence as frivolous and evasive.

Issues

  1. Whether the plaintiff is entitled to judgment on admission under O.13 r.6 CPR.
  2. Whether the written statement of defence offends O.6 r.10 and should be struck out for being evasive and frivolous under O.6 r.30 CPR.
  3. Whether the handing of money to the defendant by the plaintiff was unlawful.
  4. Whether the reference to newspaper reports alleging robbery violates section 59 of the Evidence Act.
  5. Whether the defences pleaded by defendant of illegality, act of God, and ex turpi causa oritur non actio are frivolous and vexatious.

Orders

  • Objection dismissed on issues 1, 2, 3 and 5.
  • Objection succeeded on issue 4.
  • Defendant directed to expunge hearsay evidence (newspaper reports) from pleadings.
  • Matter to proceed for hearing as scheduled.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Judgment on Admission — Requirements under O.13 r.6 CPR
To obtain judgment on admission of facts under O.13 r.6 CPR, the admission must be sufficiently clear that the issue can be said to be closed. Where an admission is ambiguous, a party must seek clarification by notice under O.13 r.4 CPR before moving for judgment. The rules do not envisage an implied admission; the admission must be specific.
Civil Procedure — Pleadings — Striking Out under O.6 r.30 — Test for Frivolous and Vexatious Defence
A written statement of defence will not be struck out under O.6 r.30 CPR as frivolous or vexatious merely because it raises defences that require determination at trial. The court must look at whether the pleadings disclose a defence case and whether they address the allegations put forward, not whether the defences will ultimately succeed.
Evidence — Hearsay — Newspaper Reports — Admissibility
Newspaper reports are hearsay statements and inadmissible under section 59 of the Evidence Act. Documents annexed to pleadings that constitute hearsay evidence must be expunged from the record.
Evidence — Burden of Proof — Defendant's Right to Plead Defences
A defendant has the right to plead defences of illegality, act of God, and ex turpi causa non oritur actio where he bears the burden of proving those defences under sections 102 and 103 of the Evidence Act. Such defences are not frivolous merely because they require proof at trial.

Legislation cited (8)

Cases cited (10)

  • Maximovoleg Petrovich v Premchandra Shenoi & Anor (HCCS No. 802 of 1997)
  • R v. Singh 1957 E.A 822 at 825 page 24
  • Attorney General v Tinyefuza (Constitutional Appeal No. 97)
  • Equator Touring Services Ltd v City Council of Kampala (Misc. Application No. 406 of 2013)
  • Central Electrical International Ltd v Eastern Builders and Engineers (Misc. Application No. 176 of 2008)
  • Excel Construction Ltd versus AG. HCCS No. 3007
  • Techistudy Ltd v Kelland [1976] 1 WLR 1042
  • Attorney General for Kenya [1939] EACA 18
  • Republic v. Dan 1965 E.A 167
  • Alifar Keya [1938] EACA 18

Full judgment

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

Warsame v Osege (HCT-04-CV-CS-0003-2013) [2013] UGHCCD 111 (6 September 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.