[2025] UGHC 515

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT WAKISO**

## **ORIGINATING SUMMONS NO 001 OF 2025**

**GYAGENDA DERRICK SSEREMBA :::::::::::::::: PLAINTIFF**

**VERSUS**

## **1. PRIDE MICROFINACE (MDI) LTD**

**2. NAJJUMA AISHA :::::::::::::::: DEFENDANTS**

## **BEFORE: HON LADY JUSTICE GRACE FLAVIA LAMUNO**

## **JUDGEMENT**

#### **INTRODUCTION**

The Plaintiff, instituted this suit by Originating summons under Order 37 rule 3 of The Civil Procedure Rules for the determination of the following questions;

- 1) Whether or not the 1st Defendant breached the land sale agreement dated 13.07.22? - 2) Whether or not the Plaintiff is entitled to vacant and exclusive possession of the land comprised in Busiro Block 268 Plot 228, land at Namusera, Wakiso?

The plaintiff prayed for the following reliefs;

- a) A declaration that the 1st defendant breached the land sale agreement dated 13th July 2022; - b) A declaration that the Plaintiff is entitled to vacant and exclusive possession of land comprised in Busiro Block 268 Plot 228, land at Namusera, Wakiso; - c) An order of eviction against the 2nd Defendant from Busiro Block 268 Plot 228, land at Namusera, Wakiso; - d) A permanent injunction against the defendants restraining them from interfereing in any way with the Plaintiff's possession of Busiro Block 268 Plot 228, land at Namusera, Wakiso; - e) General and punitive damages arising out of inconveniences caused to the defendants and - f) Costs of the suit.


## **BACKGORUND**

The Plaintiff contends in his affidavit in support of the Originating Summons that; on 29th January 2022, the Plaintiff saw a newspaper advert in Saturday Monitor placed by Miima Auctioneers and Court Bailiffs for sale of Busiro Block 268 Plot 228, land at Namusera, Wakiso. The plaintiff made an offer to the Bailiffs to purchase the property at UGX 81,000,000= which was accepted. Prior to the purchase, the Plaintiff conducted a search at the land registry which revealed that the property was encumbered by a mortgage of the 1st defendant. The plaintiff visited the property and inquired from the 2nd defendant who confirmed that she was aware of her loan obligation, failure to repay and subsequent foreclosure by the 1st defendant. Being satisfied with the status of the property, the Plaintiff executed a sale agreement for property comprised in Busiro Block 268 Plot 228, land at Namusera, Wakiso (hereafter the suit property) for a valuable consideration of UGX 81,000,000= from the 1st Defendant and transferred the property into his name. The Plaintiff avers that whereas the suit property was sold to him with the knowledge of the 2nd Defendant and that whereas the 1st defendant was obliged to deliver vacant possession to the Plaintiff, the property is still in possession of the 2nd defendant who has stubbornly refused to vacate.

The 1st Defendant filed an affidavit in reply dated 5th June, 2025 briefly contending that; the 1st defendant changed its name from Pride Microfinance Limited (MDI) to Pride Bank Limited. That the land was sold to the Plaintiff on an *"as is"* basis and the Plaintiff inspected the suit property and satisfied himself about its condition and proceeded to execute the sale agreement which waters down the Plaintiff's claim that the 1st defendant breached the land sale agreement. That at the time of execution of the sale agreement, the Plaintiff had inspected the suit property and was fully aware that the 2nd defendant was still in occupation of the same. That the 1st defendant has not breached the sale agreement and the Plaintiff has a right to evict the 2nd defendant.

The 2nd Defendant filed an affidavit in reply dated 16th June, 2025 briefly contending that; on 18th October2019 she was offered a loan of UGX 96,800,000= by the 1st defendant which she accepted. On 23rd October 2019, she signed a loan agreement of UGX 96,800,000= between her and the 1st defendant. She further avers that she had serviced the loan however faced challenges due to the economic

hardships caused by the COVID pandemic and the 1st defendant granted her a loan moratorium of four months and that she executed a loan variation deed. She further contends that she met the loan repayment obligations but failed due to the second COVID lockdown. That on 29th may 2021 the 1st defendant issued a 1st notification of late loan repayment which she never received. A 2nd notification was sent on 5th July 2021 which she did not receive and a 3rd notification was issued on 12th August 2021 which she did not receive. A notice of recall by letter was issued by the 1st defendant on 2nd September 2021. On 12th November 2021 she received a notice of sale of the suit property from MIIMA Auctioneers and Court Bailiffs informing her that a sale was to be conducted within 21 days from the date of receipt of the notice. On 29th January 2022 the 1st defendant's agents, MIIMA Auctioneers and Court Bailiffs placed an advert for sale of the suit property in the newspaper and the sale was to take place 30 days from the date of the advert. On 3rd February 2022 the 1st defendant's agent MIIMA Auctioneers and Court Bailiffs issued her an eviction notice accompanied by another one on 6th May 2022. On 5th May 2022, MIIMA approved a sale of the suit property to the Plaintiff. On 31st May she wrote a letter to the 1st defendant requesting to be allowed to get a purchaser of the suit land willing to pay a higher sum than UGX 81,000,000=. That the 1st defendant unlawfully sold and transferred the suit property to the Plaintiff at UGX 81,000,000=. The 1st defendant unlawfully transferred the suit property to the Plaintiff. That she resisted the Plaintiff and 1st defendant's illegal eviction that is why she is still in possession of the suit property. She filed CS No. 292 of 2023 in commercial division against the Plaintiff and 1st defendant which was erroneously dismissed and she has filed MA No. 1216 of 2025 to re-instate it.

The Plaintiff filed an affidavit in rejoinder 20th June 2025 in which he stated that; there is nothing unlawful about the sale and transfer and that MA No. 1216 of 2025 is an afterthought which was filed on 11th June 2025, two weeks after service with the originating summons to create an impression that the suit property is contentious whereas not.

## **REPRESENTATION**

At the hearing on 10th June 2025, the plaintiff and his Learned Counsel were absent while the 1st Defendant was represented by Learned Counsel Juliana Namirembe whereas Learned Counsel Mahazi Ismail represented the 2nd Defendant. The court issued


directives for the filing of the affidavit in reply, rejoinder and written submissions. The parties filed their pleadings and submissions which I have considered in the determination of this suit.

# **Preliminary Objections**.

The 2nd Defendant in her affidavit in reply raised a preliminary objection to the effect that the Plaintiff's application is incompetent since it raises contentious and complex issues which can only be resolved through a regular suit.

The Plaintiff in his rejoinder also raised three preliminary objections to the effect that;

- a) The 2nd defendant's affidavit in reply was filed out of time. - b) The affidavit is incompetent and inadmissible owing to noncommissioned annextures attached thereto, and, - c) The certificate of translation of the affidavit refers to an affidavit in rejoinder and not the affidavit in reply itself.

## **Resolution and determination of the objections; Whether the matter is competently before court?**

Counsel for the 2nd Defendant argued that the points raised by the 2nd Defendant in paragraph 5 (a) – (bb) of the affidavit in reply are complex in nature and can only be resolved by way of an ordinary plaint. He argued inter alia that this originating summons involves issues of fraud alleged against the plaintiff which are of a serious nature and must be strictly proved. He also argues that the 1st Defendant unlawfully sold and transferred the suit property to the Plaintiff.

Counsel for the 2nd Defendant further submitted that in **Namutebi Mariam Bitalo Vs Nabisere Jalia Originating Summons No. 004 OF 2023**, court cited the case of **Kalusumbai Vs Abdul Hussein (1975) EA 708**, where it was held that the procedure by Originating Summons was intended to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way, not to have court determine matters which involve a serious question.

He argued that the questions which the Plaintiff intends to address by this mode of application are neither straight forward, simple and or uncontested but rather disputed and involves allegations of fraud which cannot be judiciously determined on an originating summons. The matters are complex and controversial which require to be heard


inter-parte. In the circumstances, he prayed that the Originating Summons is dismissed with costs.

Counsel for the Plaintiff submitted and cited **Datta Vs Datta Originating Summons No. 18 of 2024** where Justice Celia Nagawa stated that '…upon perusal of the documents presented to this honourable court, it is indeed undisputed that the Plaintiff is the registered proprietor of the property…arising from the above undisputed facts, it is my finding that the procedure under which the originating summons were filed is proper…The Plaintiff's counsel brought this matter under Order 37 Rule 3 and 6 which is clear in as far as claims that emanate from contracts and indicated therein that, "…. or any other question arising out of or connected with the contract of sale, not being a question affecting the existence or validity of the of the contract…'.

Counsel for the Plaintiff argued that the Plaintiff entered into a sale agreement with the 1st defendant for purchase of the suit land on 13th July 2022 at a consideration of UGX 81,000,000=. That the 1st defendant has failed to deliver vacant possession and the 2nd defendant has blatantly refused to vacate the house.

Counsel for the Plaintiff argued that this case revolves the suit property for which he is the registered proprietor and the Plaintiff's title is undisputed wherefore he is entitled to vacant possession. He argued that this matter is suitable for determination by Originating Summons under Order 37 Rule 3 of the Civil Procedure Rules.

## **DETERMINATION BY THE COURT**

Court shall proceed to resolve first objection that relates to whether this matter is competently before court. Order 4 rule 1 of the Civil Procedure Rules provides that every suit shall be instituted by presenting a plaint in that court. The Civil Procedure Rules also provide for other ways of moving the court. In this case, the application was commenced by way of Originating Summons under Order 37 rule 3 of the Civil Procedure Rules. This issue puts into question the procedure adopted for bringing this suit. Order 37 rule 3 of the CPR provides that: - "A vendor or purchaser of immovable property or their representatives may, at any time or times, take out an originating summons returnable before a Judge sitting in chambers, for determination of any question which may arise in respect of any requisitions or objections, or any claim for


compensation; or any other question arising out of or connected with the contract of sale, not being a question affecting the existence or validity of the contract."

The plain reading of the above order returns the view that a person selling or buying land, or their legal representative, can go to court using a simplified procedure called an originating summons to ask the judge to decide any issue that comes up in the process of the sale. These issues could include questions about the title, objections raised during the transaction, or claims for compensation.

However, the rule does not allow the use of this procedure to resolve disputes that question whether the sale agreement is valid or whether it exists at all. Such serious disputes must be handled through a full trial in an ordinary suit. Indeed, Courts have overtime guided, that matters to be considered under the said procedure should be those that are straight forward and which do not require oral evidence to prove the allegations therein or evidence beyond affidavit evidence to reach a fair and just decision. Where the matters raised in the Originating summons are complex and require oral evidence or evidence beyond the affidavits submitted, then the appropriate mode of institution of such a suit would be by way of an ordinary plaint.

Hon Justice Stephen Mubiru in **Guaranty Trust Bank (U) Limited v Dokwals Uganda Limited and Another (Civil Suit Originating Summons 1 of 2021)** held that: Originating Summons (OS) is one of the two modes of commencing a civil suit. A suit is commenced by this mode where the dispute concerns matters of law, and there is unlikely to be any substantial dispute of fact. The affidavits are the pleadings for the case. The affidavit filed in support serves as the plaint, while the affidavit in reply serves as the written statement of defence. This procedure exists in the interests of efficiency and cost. It provides a simple, informal, expeditious and inexpensive method of obtaining a final judgment, where no oral evidence is required, and the proceedings can be determined by way of affidavit evidence. An originating summons is the appropriate procedure where the main point at issue is one of construction of a document or statute or is one of pure law. It is not appropriate where there is likely to be any substantial dispute of facts that the justice of the case would demand the settling of pleadings. He further held that: The plaintiff should set out in the originating summons a concise statement of the

questions which the plaintiff seeks the court to decide or answer or a statement of the relief or remedy claimed (where appropriate).

This procedure for Originating Summons entails the interpretation of documents, wills, deeds, enactments, or any other written instrument. It also involves the determination of any question of construction arising under the instrument and for a declaration of rights of persons interested - **(See: Jas Ventures International Ltd V Okello Carlos Orach Originating Summon No. 0008 of 2023, Guaranty Trust Bank Uganda Limited V Dokwals Uganda Limited & Anor Civil Suit No. 0001 of 2021 (OS))**.

I have read the Originating Summons and the Affidavit in support filed by the Plaintiff. I have also considered the Affidavit in Reply filed by the 1st and 2nd Defendants and the Plaintiff's Affidavit in Rejoinder. I have also given due consideration to the submissions filed by Learned Counsel for their respective parties.

It is trite law that a preliminary objection can be raised any time before judgement. A preliminary objection is a point of law that should be pleaded or arise by clear implications from the pleadings.

The plaintiff in his Originating Summons raised the following questions for the determination of this Court;

- 1. Whether or not the 1st Defendant breached the land sale agreement dated 13.07.22? - 2. Whether or not the Plaintiff is entitled to vacant and exclusive possession of the land comprised in Busiro Block 268 Plot 228, land at Namusera, Wakiso?

The uncontested evidence before the Court as between the Plaintiff and 1st defendant as adduced in the affidavit in support of the originating summons and the 1st defendant's affidavit in reply show that the Plaintiff and 1st defendant entered into a sale agreement for the purchase of the suit property. Indeed, the 1st defendant does not object to court granting an eviction order against the 2nd defendant since the land title and the mortgage release letter to the suit land were handed over to the Plaintiff to take possession of the suit property which the 2nd defendant has frustrated ever since the property was sold off.

On the contrary, the 2nd Defendant contends that the 1st defendant unlawfully sold off and transferred the suit property to the Plaintiff which brings into question the validity of the sale agreement executed between the Plaintiff and 1st Defendant. In my opinion, this matter dwells on the validity of the sale of the suit property which brings into dispute the validity of the transactions touching the subject matter.

Order 37 of the Civil Procedure Rules is intended to solve simple matters which do not require investigations and that should only be used in situations where there are no substantial disputes as to facts but rather on legal consequences of the set of facts. In **Bukenya Paul & 7 Others Versus Mary Margaret Nakawunde & Another CACA 132 of 2016** at Page 18-19 it was held that; "Suits by Originating Summons are intended for simple and straightforward noncontentious matters…originating summons do not include disputed facts."

From the Pleadings and submissions by the parties, this matter is a contentious matter that requires this Honorable Court to look at a number of considerable evidence before its determination. The affidavit in reply deponed by Najjuma Aisha the 2nd defendant delves into the details of the dispute that culminated into the Plaintiff purchasing the suit property. Although Counsel for the Plaintiff argues that the Plaintiff's title is not disputed, the 2nd defendant contends that the 1st defendant unlawfully sold and transferred the suit property to the Plaintiff and she has resisted the 1st defendant's illegal eviction attempts by remaining in possession of the suit property.

The issues raised in this matter are contentious and not simple matters. The essence of the procedure of originating summons is to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable court to determine matters which involve a serious question. They are intended to dispose of simple and non-contentious matters in a speedy manner - **(See: Mayanja Bosco V Kasikururu Lois Okumu and another OS No. 005 of 2008, Nesta Petroleum (U) Ltd V Silcon Oil (U) Ltd & Anor Originating Summons No. 0003 of 2022)**. In **JP Nagemi T/a Nagemi and Co. Advocates vs. Ismail Semakula OS 8/13** it was held that originating summons should be limited to straight forward matters and that originating summons is

not a procedure by which decisions on disputed questions of fact can be obtained and that it is not appropriate where disputes involve considerable amount of evidence.

It is trite that Originating Summons is a procedure reserved for matters that are straightforward, non-contentious, and primarily involve the interpretation of legal documents or undisputed facts, this case is far from such. In this case, it is apparent from the pleadings and affidavits that: the 2nd Defendant disputes the propriety of the sale and the Plaintiff's title; and has raised allegations of fraud. These allegations raise serious questions of fact and law that go beyond mere interpretation of documents. The opposing claims go to the root of the transaction and directly affect the validity of the Plaintiff's title and cannot be resolved on affidavit evidence alone. This level of dispute renders the matter contentious and inappropriate for determination under originating summons procedure. They require cross-examination of witnesses and a full trial on merit. In the present application, the questions already outlined, which the Plaintiff has framed for determination, would require taking and interrogating evidence from the 1st and 2nd defendants to establish the veracity of the allegations. The court will have to analyze the allegations of fraud precipitated by the 1st defendant before it can determine whether 1st defendant breached the sale agreement and whether the Plaintiff is entitled to vacant possession of the suit property. This requires going beyond the evidence presented in the supporting affidavit and hearing from all the parties.

The 2nd Defendant claimed that the said sale and transfer was unlawful. I also believe court cannot competently investigate and pronounce itself the legality of the sale of the suit land by mere reliance on the affidavits of the parties. This issue requires oral testimony from the parties.

I therefore find that this is not a proper case whose merits can be properly investigated under the Originating Summons filed by the Plaintiff. The matter raises complex issues which require evidence beyond affidavit evidence presented by the Plaintiff. The procedure adopted cannot be sustained by this Honorable Court as it's not a matter that is straight forward or simple in accordance with Order 37 Rule 3 of the Civil Procedure Act.

I thus agree with the submissions of learned counsel for the 2nd Defendant that this matter was improperly brought by way of Originating Summons. In the case of **Nakabugo Vs. Serunjogi (1981) HCB 58**, it was held that it is trite law that when disputed facts are complex and involve a considerable amount of oral evidence, an Originating Summons is not the proper procedure to take. I thus reject this application.

The best mode of institution would be a plaint. Where an Originating Summons may not properly resolve the dispute between the parties, the appropriate solution may well be to reject such pleadings and direct parties to file a plaint; it does extinguish the claims of the parties - **(***Zalwango & anor v Walusimbi & anor (Originating Summons No. 03 of 2013) [2014] UGHCCD 22 (11 February 2014***,***)*. The plaintiff is at liberty to commence an ordinary suit against the defendant.

The High Court has the power to grant any appropriate remedy—legal or equitable—based on the claims properly brought before it, in order to fully resolve all issues between the parties and avoid multiple legal proceedings see S.37 Judicature Act. It is trite that this Court has inherent powers to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court see S.98 CPA.

Exercising powers of the court under Order 37 rule 11 of the Civil Procedure Rules, I will not dismiss the suit but direct that the parties appear for hearing of the suit as an ordinary suit and not have it disposed of in a summary manner. The suit will be fixed for a scheduling conference on 28th August 2025 at 2:30P. M to consider any need of amendment and to fix it for hearing viva voce. Costs of the OS incurred thus far are costs in the cause.

# **I SO ORDER**

Delivered electronically this 14th day of July, 2025

**GRACE FLAVIA LAMUNO AG. JUDGE 14th July 2025**