[2011] UGHC 192

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT MBALE**

### HCT-04-CV-CA-115-2009

# (FROM BUSIA CIVIL SUIT NO. 15 OF 2009)

AINEYO OKELLO..................................

#### **VERSUS**

| 1. AMOS LUBAALI | |-------------------------------| | <b>4. AKUMU JESSICA MOMBO</b> | | 3. WANYAMA OJUNA MOMBO | | 4. BWIRE TITO MOMBO | | 5. WANDERA OGEYA MOMBO | | 6. WAFULA NUWA MOMBO |

# **BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN** JUDGMENT

This is an appeal against the ruling of a Magistrate Grade I Busia in which he struck out the appellant's suit on a preliminary point of law. The appeal is brought under S.323 MCA, S.71 of the CPA, O.43 of CPR and O.6 rr22 and 23 CPR.

On the outset I note that the MCA ends at S.230 and I have not found the relevancy of $Q.6$ rr.22 and 23 CPR.

The background to this appeal is that on 13 July 2009 the appellant represented by M/s Musamali & Co. Advocates filed in the Chief Magistrate's Court of Busia

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Civil Suit 0.15 of 2009 against six defendants, now respondents to wit Amosi Lubaali, Akumu Jessica Mombo, Wanyama Ojuna Mombo, Bwire Tito Mombo, Wandera Ogeya Mombo and Wafula Nuwa Mombo. These respondents in this appeal are represented by M/s Kamba and Co. Advocates.

After the pleadings were closed learned counsel for the defendants/appellants intimated to court that he had a preliminary objection to the suit. He sought and court allowed him to file written submissions of the points of objection.

Mr. Bwire who represented the appellant in the lower court made an oral reply to the points of objection raised by learned counsel for the defendants.

The preliminary objection was three fold that:-

1. The suit based on purported customary law is not sustainable.

2. The suit is barred by the Act of Limitation.

$\frac{3}{2}$ . The suit offended O.7 rr.3 and 14 of the CPR.

Mr. Kamba learned counsel for the respondents made an extensive submission on each of the objections and urged court to strike out and dismiss with costs the suit. The learned Magistrate Grade I upheld the objections and struck out the suit with costs hence this appeal.

The appellant was dissatisfied with the decision hence this appeal based on five grounds of appeal that:-

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- (1) The learned trial Magistrate erred in law and fact when he held that the appellant's suit in the lower court was barred by S.5 of the Limitation Act without first determining from the pleadings, when the appellants cause of action arose. - (2) The learned trial Magistrate erred in law and fact to rule on a preliminary point of law that the appellant's suit was a representative suit when he himself was in doubt as to whether the appellant brought the suit in personal capacity or on behalf of others. - (3) The learned trial Magistrate erred in law and fact when he failed to restrict himself to the pleadings of the case and instead determined the merits of the case at that stage without any evidence before him. - (4) The learned trial Magistrate misdirected himself in law and fact when he held that the suit property was not sufficiently described within the meaning of O.7 r.3 CPR. - (5) The learned trial Magistrate misdirected himself in law when he acted with $\vert$ bias against the appellant by considering only the respondents' arguments and completely ignoring appellant's arguments which were properly before him

I allowed respective counsel to file written submissions in support of their respective cases.

As rightly submitted by Mr. Musamali learned counsel for the appellant, it is the duty of this court as a first appellate court to scrutinize, re-appraise and re-evaluate the evidence adduced in the lower court and make its own finding on both facts and the law. *PANDYA V. R [1957] E. A.336*. I will do exactly what is expected of a first appellate court in this case.

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I have considered the respective submissions of both learned counsel. I have studied the submissions made in the lower court and the ruling by the learned Magistrate Grade I. I will go ahead and decide the grounds of appeal one by one.

# Ground I

On this ground, Mr. Kamba learned counsel for the respondents submitted that the suit in the lower court sought from court a declaration that:-

- a) The suit property is not available for sale, lease, gift or hire by the defendants/respondents. - b) Any purported or intended sale of the suit property by the defendants (respondents) without express consent of the plaintiff/appellant is null and $10$ void. - c) Permanent injunction against all the defendants/respondents or their agents etc not to sale lease, hire or give as gift the suit property be issued. - d) An order of eviction of any defendant who is in breach of the law governing the suit property etc.

Learned counsel submitted that these prayers are unachievable because the 1^st respondent was born in 1924 and came to the disputed land with his mother, grew up there, occupied and has been selling the land since. That the rest of the respondents are old men with children. Therefore the cause of action did not arise in 2008. That the Limitation Act S.5 covers the respondents who acquired interest from one Erina and others who acquired from her. That Erina died around 1970 and the appellant has been in slumber since 1940 to seek the reliefs being sought. Mr. Kamba further submitted that the conditions given to Erina in 1940, cannot bind the respondents in view of the Public Lands Act 1969 which abolished


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customary tenure and made all land public land. That this ground of appeal lacks merit.

Mr. Musamali submits to the contrary. I agree with Mr. Musamali that the learned trial Magistrate did not determine when the cause of action arose before finding that S.5 of the Limitation Act applies to the appellant's suit. On the issue of limitation the learned magistrate held *inter alia* that:-

"On the second ground of the preliminary objection that the suit is barred by Limitation. See Oitamony v. Olinga 1985 **HCB 87 at 87** for definition of limitation. The plaint clearly states that Erina Akumu was given the land in 1940s, the plaintiff's cause of action is therefore limited by S.5 of the Limitation Act.

This Court is inclined by Mr. Kamba's line of thought (sic) that the mere fact that the defendants have had a long protracted stay on the land any purported owner of any land cannot begin dictating to the defendants what they should do with the land.

In the circumstances, court finds merit in ground two of the preliminary objection and as such, it succeeds."

This was all that the learned trial Magistrate said about the point of law regarding $Q_{\tilde{O}}$ limitation.

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A cause of action arises from the time there is an alleged breach or violation of a right by a given defendant; not from the time the plaintiff and defendants entered into a binding agreement.

A cause of action is defined thus:-

"The popular meaning of the expression 'cause of action' is that particular act on the part of the defendant which gives the plaintiff his cause of complaint..... Strictly speaking, every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have to traverse forms an essential part of the cause of action which accrues upon the happening of the latest such *facts* ................"

Halsburys Laws of England Vol.1 Paragraph 9.

The period of limitation begins to run when the c use of action accrues. This is when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.

From the pleadings of the appellant in the lower court, paragraphs 5h-5m thereof, he avers that the breach or violation of the agreement arose in mid-2008, when the defendants/respondents purported to sale the suit property contrary to an earlier agreement. So from the pleadings the appellant's cause of complaint arose in mid 200 $\frac{1}{2}$ not 1940. The suit in the lower court was file 1 on 13^th July 2009 which was a mere 1 year from the time the cause of action arose. Therefore the learned trial

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Magistrate was wrong to conclude and hold that the appellant's cause of action is limited by S.5 of the Limitation Act.

From the pleadings the appellant avers that up to 2004 he had no problem with the respondents until 2008 when the problems arose.

When I read the learned Magistrate's ruling, I was amazed to discover that he appeared to make findings which could only be made when evidence had been led by either side. He held inter alia that:-

"This court is inclined with Mr. Kamba's line of thought that the mere fact that the defendants have had a long protracted stay on the land, any purported owner of the land lost ownership of that land and cannot begin dictating to the defendants what they should do with the land."

By this conclusion, I agree that the learned trial Magistrate descended into the arena of the trial and adduced his own evidence upon which he relied to strike out the appellant's plaint.

I will uphold this ground of appeal. The appellant's suit was brought within the statutory period of 12 years and was therefore not barred by the Limitation Act.

# Ground 2:

This is the ground to determine the fate of this $a_1$ peal.

Mr. Musamali for the appellant submitted that the learned trial Magistrate was not sure the appellant was bringing the suit in his personal capacity or on behalf of the Babooli clan. Therefore he was wrong to determine this issue at a preliminary stage. That he should have proceeded to hear the evidence from both parties and allowed each party to address him on that point and made the ruling at the end of the case. Further that the appellant brought the suit as a custodian and trustee and never at any one time pleaded that he was suing by way of representative action.

That according to the plaint paragraph $5(b)$

"The plaintiff is now the only surviving son and the oldest lineal descendant of the Orada family, and therefore he is the defacto custodian and trustee of the clan values, norms and aspirations of the Babooli clan of the Orada lineage."

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That this ground of appeal should succeed.

On the other hand, Mr. Kamba for the respondents submitted to the contrary and maintained that the appellant's suit was a representative action. $\vert$ $\angle$

On this issue, I agree with Mr. Kamba. If one looked at the pleadings in the lower count paragraphs $5(b)$ , (c), (k) and 6, it becomes clear that for all intents and purposes, this was a representative action. I will set out the said pleadings as follows:-

"5(b) The plaintiff is now the only surviving son and the oldest lineal descendant of the Orada family, and therefore he is the defacto custodian and trustee of the clan values,

norms and aspirations of the Babooli clan of Orada lineage."

$5(c)$ The plaintiff took over the mantle of leadership of the Babooli clan of Orada lineage after the death of his eldest brother Tito Oundo who among other things handed him a written document before his death. On how the clan land belonging to Orada lineage should be administered, which inter alia prohibited anyone to sell, lease, give as gift or hire it."

"5(k) In mid 2008 the $3^{rd}$ defendant purported to sale the suit property which exclusively belongs to the Babooli clan of Orada lineal descendants to other persons when himself is a Mwalira clan."

"6 The plaintiff shall therefore contend and aver that

(a) The defendants who belong to the Baliira clan have no colour of right to sell the land of the Babooli clan of the Orada lineal descendants. (b) The defendants are in general breach of the law *which govern the Babooli clan....................................*

The pleadings in the above paragraphs clearly show that the plaintiff was representing many others.

By purporting to sue on behalf of a large community comprised in the Babooli clan, the appellant ought to have instituted the suit as a representative action after getting leave from court to do so as required under O.1 rr.8 and 12 CPR. The

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Babooli dan is not restricted to one family. It must be a large community scattered verywhere.

The ruling of this court Tazenya Henry and 5 others v. Koire George Williams $HCMA$ No.200 of 2008 (*Mbale*) (Unreported) is instructive on this point and I agree.

Another case with similar persuasion relied upon by *Mr. Kamba is KAMUNYU* & ORS V. A. G. & ORS [2007] E. A. 116. In that case the appellants were Masai Pastoral Community members. They had filed a suit in the High Court for wrongfully interference with their legal rights by the respondents and claimed to represent the entire Masai Community of Tanzania who had been evicted from Mkomazi Game Reserve. They also prayed for compensation for loss/damage of livestock and property for a multitude of the Masai Pastoral Community who were evicted.

The court of Appeal for Tanzania held *inter alia* that:

"*The first point for consideration and decision in this appeal*" is of a procedural nature and it is whether it is correct in law for the 53 appellants to sue not only on their behalf, but also on behalf of every member of the Masai Community *affected by the eviction.....*

*Where the judgment sought is in rem, that is a judgment applicable to the whole world, an individual does not sue on* behalf of the whole world but sues for judgment which is effective against the whole world.... If the appellants intended to benefit every member of the Masai Community,

$ac$ they ought to have instituted either a class suit or a representative suit under O.1 rule 8 of the Civil Procedure Code 1966."

O.1 r $\frac{1}{8}$ CPC is similar to our O.1 r.8 CPR and 12 CPR. Where there are numerous persons having the same interest in one suit one or more of such persons may sue or be sued with permission of court. The appellant's title is merely a leadership The Babooli clan composed of many people-all-into a community. A title. representative suit ought to have been filed.

Consequently I will dismiss ground 2 of the appeal.

## Ground 3

Mr. Kamba learned counsel for the appellant submitted that the learned trial Magistrate made his decision basing on points of law and needed no evidence before him to determine the grounds upon which he dismissed/struck out the appellant's suit. That the 4 grounds were purely on points of law and therefore this ground lacks merit.

On the other hand, Mr. Musamali for the appellant submitted to the contrary and I agree.

As submitted by Mr. Musamali instances which show that the learned trial Magistrate did not restrict himself to pleadings are:-

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At P.51 of the record when he cited article 37 of the Constitution and applied it to non existent facts, and;

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At P.52 of the record when he observed that without a document on court $(ii)$ record showing the custom of the Babooli clan, there is no pleading (evidence) that this document is for Babooli clan.

It is trite law that customary law is proved either by oral evidence or written evidence or both. It was therefore premature at the stage of ruling on a preliminary point of law for the learned trial Magistrate to pronounce himself on evidence of pleadings that the document was for the 'Babooli clan' or "accepted by the Babooli clan."

$(iii)$ Another strange pronouncement by the learned trial Magistrate is at P.53 of the record paragraph 2 where he held that:-

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"This court is of the opinion that the defendants have *usufruct and occupational interest in land....................................*

Further to this the learned trial Magistrate considered details about the legal evolution of our land law as were contained in the Public Lands Act. The Land Reform Decree and now the Land Act. Such details were not supposed to be handled during the preliminary objection because evidence ought to have been adduced first before court pronounced itself on the same. The only time this should have been done was after trial.

Clearly this was a matter of evidence which he had not heard.

I will agree that in this respect the trial Magistrate misdirected himself in law and fact by not restricting himself to the pleading s of the case and tried to determine the merits of the case at this stage without any evidence before him.

I will allow this ground of appeal.

## Ground 4

Regarding this ground, Mr. Kamba learned counsel for the respondents submitted in reference to O.7 r.3 CPR that where the subject of the suit is immovable property, the plaint shall contain a description sufficient to describe it. That the learned trial Magistrate allowed the respondents' objection that the suit offended O.7 $\frac{1}{2}$ . 14 CPR. That both provisions in O.7 $\frac{1}{2}$ and 14 are mandatory and should be enforced.

Mr. Musamali for the appellant submitted to the contrary.

After perusing the pleadings and the submissions in the lower court, I am inclined to agree with learned counsel for the appellant's submission on this ground. O.7 r.3 $\angle$ PR provides thus:

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"*Where the subject matter of the suit is nmovable property,* the plaint shall contain a descripti *i* of the property *sufficient to identify it."*

The catch word in this provision is "sufficient" This should mean "enough for the parties to know it."

Paragraph 5 (a) of the plaint at P.7 of the record provides:

The three therefore resolved that each of them surrender a portion of his land to form a reasonable chunk of land to be given to Erina Akumu Nabooli for her settlement and use and indeed the three brothers did give her a piece of land (the suit property)."

Then paragraph $5(h)$ of the plaint provides that:-

"On the basis of the above conditions Erina Akumu Nabooli, did occupy the land given to her and did use the land with her sons who included the late Isacc Mombo (the late husband to the $2^{nd}$ defendant and late father to the $3^{rd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ defendants; and Amos Lubaali the 1^st defendant."

The above descriptions in my view were enough to sufficiently describe the suit land to enable the parties know it. The land is where the parties stay. It is land that was given to their parent *inter alia* by the appellant with conditions. The description enabled the respondents to answer to the claim in their written statement of Defence wherein they constantly referred to "the land". The respondents did not express any doubt as to the land in issue in their defence. This means the respondents are not mistaken about the suit land and refer to it in size as "10 acres of land at Butula village Lumino"

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Conversely, in the appellant's reply in rejoinder, to the written statement of defence paragraph $3(a)$ describe the land thus:-

"The suit property is situated in Butula village which is predominantly occupied by the Babooli clan and not the *Baalira clan to which the defendants belong.*"

In the circumstances, since the suit land is not surveyed the description in the plaint was sufficient between the parties. The respondents know the land in question.

I will find that the disputed land was sufficiently described. I will consequently allow this ground of appeal.

## Ground 5

In support of this ground, Mr. Musamali learned counsel for the appellant submitted that the learned trial Magistrate only glorified the respondents' submissions and completely ignored and down played the submissions of the appellant. That apart from briefly stating what the appellant's legal representative argued, he never attempted to reconcile them with that of the respondent before reaching his conclusions. That this led to absurd conclusions to the detriment of the appellant.

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On the other hand, Mr. Kamba learned counsel for the respondents submitted dismissing the complaint by the appellant. That this ground of appeal has no foundation and is scandalous. I substantially agree with Mr. Kamba but defer on the description "scandalous". The complaint by the appellant is not scandalous. As pointed out, the learned trial Magistrate considered in a balanced way the submissions on both sides in equal measure.

I do not agree that the learned trial Magistrate was biased. There are two known tests in matters relating to bias and these are:-

- $(i)$ Whether there was real likelihood of bias. - $(iii)$ Whether there was reasonable suspicion of bias.

These two tests are complimentary depending on the circumstances.

That notwithstanding, where there is a complaint as to whether the trial judge or Magistrate is biased, the complaint must first be raised to the trial judge or Magistrate. The complaint should be based on allegations of pecuniary, family or kindred or propriety. Whoever complains to the judge or magistrate has the burden to produce credible evidence to prove the same. The concerned judge or magistrate will then decide to either step down from the case or overrule the objection. This was not done in the instant case. Therefore the issue of bias cannot be a subject of appeal now.

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This ground of appeal shall collapse.

I will conclude this judgment with general comments on the law.

The matter in the lower court was ended before trial and before evidence was put on court record. The striking out or dismissal of the suit at that stage can be done under O.6 rr.29 or O.6 R. 30 CPR. The lower court Civil Suit 15 of 2009 was struck out supposedly under O.9 r.30 CPR. While striking out a suit, before hearing the evidence, court has to look at the pleadings alone and not the anticipated This was the decision in HMB KAYONDO SC V. ATTORNEY evidence. GENERAL [1988-90] HCB 127 where it was held that:-

"In an application to strike out plealings which do not disclose a cause of action or defence, he court would only look at the pleadings as filed by the parties."

This procedure is only appropriate to cases which are plain and obvious so that any judge can say at once the statement of claim is insufficient even if proved to entitle the plaintiff to what he seeks. See. HUBBUCK AND SONS LTD V. WILKINSON HEYWOOD & CLERK LTD [1899] 1 QB 89.

The rationale for these pronouncements is that a decision is being made on a preliminary objection before evidence is adduced. A preliminary objection is defined in MUKISA BISCUIT MANUFACTURING CO. VS. WESTEND DISTRIBUTORS [1969] E. A. 696 as:-

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"A preliminary objection consists of $\iota$ point of law which has been pleaded or which arises by clear implications out of pleadings and which if argued as a preliminary point may *dispose of the suit.*"

Extraneous matters, opinions or conclusions of fact which require evidence should never be included in the decision of the issues included in the objection. Once such matters come forth then the suit should better be handled at full hearing. Regarding the issue raised by Mr. Kamba in his concluding remarks that the appellants complained that the Magistrate erred both in law and fact yet the $\mathfrak{D} :$ Magistrate only considered questions of law, I am of the view that it was not prejudicial but I wish to note that it has become a mode of framing grounds of appeal by many lawyers. In the instant appeal since the appeal arose out a decision on preliminary points of law, learned counsel for the appellant ought to have

restricted his complaints on points of law only. It would have rendered the appeal and submissions shorter.

For the reasons given herein I will partially allow this appeal in grounds 1, 3 and 4. I will dismiss the appeal in grounds 2 and 5. $\frac{1}{2}$

Since the sustainability of the lower court's suit depended on the appellant's success in ground 2 of the memorandum of appeal which has failed because the appellant ought to have filed a representative action which he did not do this appeal is finally dismissed with $\frac{1}{2}$ the costs to the respondents.

Your lun

**Musota Stephen**

**JUDGE**

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23.3.2011

23.3.2011

Parties absent.

Kamba for the respondent.

Kimono Interpreter.

Kamba: Judgment for today.

Court:

Stood over to 10:30a.m.

Lucia /un

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**Musota Stephen**

## **JUDGE**

23.3.2011

$10: 0$ Court resumed.

Aggrey Bwire for Appellant.

Hassan Kamba for Respondents.

Parties absent.

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Bwire: Matter for judgment and we are ready to receive it.

$\boxed{\text{Cou}}\text{rt}:$ Judgment delivered.

At Judium

**Musota Stephen**

**JUDGE**

23.3.2011