[2024] UGHC 387

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU**

# **CIVIL SUIT NO. 005 OF 2017**

| 1. LATYENG COMMERCIAL FARM<br>LIMITED | | |------------------------------------------------------------------|------------| | 2. OKELLO MATHEW=====================================PLAINTIFFS | | | -VERSUS | | | 1. OYET MARTIN | | | 2. OYUGI MOLLY | | | 3. AMURU DISTRICT LAND BOARD | | | 4. MWAKA<br>EDMOND====================================DEFENDANTS | | | -AND | | | OYET MARTIN=================================COUNTER | -CLAIMANT | | -VERSUS | | | 1.<br>LATYENG COMMERCIAL FARM LIMITED | | | 2.<br>OKELLO MATHEW | | | 3.<br>OYUGI MOLLY=============================COUNTER - | DEFENDANTS |

# **BEFORE: HON. MR. JUSTICE PHILLIP ODOKI**

# **RULING**

## **Introduction:**

[1] The Plaintiffs instituted this suit against the Defendants seeking for, a declaration that they are the lawful owners of land measuring approximately 203 and 198 hectares situated at Kidimon Village, Palyec Parish, Amuru District (hereinafter referred to as the 'suit land'); a declaration that the Defendants are trespassers on the suit land; an eviction order against the Defendants, their agents, servants, assignees and licensees on the suit land; a permanent injunction to restrain the Defendants, their servants, agents or anyone acting on their behalf from further interfering with their possession, use and quite enjoyment of the suit land and from preventing them from selling the suit land; compensation for expenses incurred in ploughing the suit land amounting to Ugx 30,000,000/= (Uganda Shillings Thirty Million); general damages; and costs of the suit.

[2] On the 25th September 2023, the Plaintiffs' suit against the 2nd – 4th Respondents was withdrawn. The 1st Defendant filed his Written Statement of Defense to the Plaintiffs' suit and set up a counter – claim against the Counter – defendants seeking for, inter alia, a declaration that the suit land is public land and for a declaration that he is rightful owner of the suit land.

[3] On the 19th March, 2024, counsel for the Counter – defendants intimated to the court that they intend to raise a preliminary objection that the counter – claim does not disclose any reasonable cause of action against the Counter – defendants. This court gave counsel directives to file written submission, which directives were duly complied with.

## **Legal representation:**

[4] The 1st Defendant/ Counter – claimant was represented by Mr. David Owor Abuga of M/s Owor -Abuga Co. Advocates. The 1st and 2nd Plaintiff /Counter – defendants were represented by Mr. Patrick Abore of M/s Abore Advocates & Legal Consultants. The 2nd Counter – defendant was represented by Mr. Walter Okidi Ladwar of M/s Ladwar, Oneka & Co. Advocates.

## **Submissions of counsel:**

[5] Counsel for the Counter – defendants submitted that a counter- claim is a separate suit which must disclose a cause of action, failure of which it has to be rejected under Order 7 rule 11(a) of the *Civil Procedure Rules, S. I. 71 – 1*. Counsel submitted that although the Counter – claimant alleged at paragraph 6(a) of the counter – claim that he bought goodwill of the suit land, he never indicated the nature of the goodwill he bought of the suit land which confers any right over the suit land. Counsel further submitted that the Counter – claimant seeks a declaration that the suit land is public land. He therefore has no valid ownership right over the suit land which is public land. According to Counsel for the Counter – defendants, the counter – claim does not describe what right was enjoyed by the Counter – claimant and was violated by the Counter – defendants. Counsel relied on the case of, *Auto Garage -vs-Motokov (No. 3) (1971) EA. 514* on what must be in the plaint in order for it to disclose a cause of action. Counsel also relied on the case of *Praful Chandra R. Patel versus Abbas Manafwa & 3 others HCCA No. 0013 of 2015* for the proposition of the law that in determining whether a plaint discloses a cause of action or not, the court must look only at the plaint and its annexures if any and nowhere else.

[6] Counsel for the Counter – claimant, on the other hand, submitted that paragraph 5(a) of the Counter – claim shows that the Counter – claimant bought the suit land on the 8th January, 2011at a purchase price of Ugx 80,000,000/=. Paragraph 5(b) and (c) of the Counter – claim shows that after purchase of the suit land, the Counter – claimant took immediate possession, constructed grass thatched houses and started small scale farming on the suit land. He thereafter applied for a leasehold from Amuru District Land Board as per Annexures B1, B2, and B3. According to counsel for the Counter – claimant, the Counter – claimant started enjoying his right to land from 2011 when he bought the suit land up to 2017 when he was sued in this Court. Counsel further submitted that Paragraph 5(e) & (f), 6, 7, 8, and 9 shows that the 1st and 2nd Counter – defendant surveyed the suit land, thereby violating the Counter – claimant's right over the suit land.

[7] Counsel for the 1st Defendant/ Counter – claimant also raised a preliminary objection that the suit by the 1st Plaintiff is a nullity because it was filed without authority/company resolution of the members of the 1st Plaintiff. Counsel relied on the case of *Bugerere Coffee Growers vs. Ssebadduka & A'nor [1970] EA 147* that a suit instituted by a company without authority of its members is a nullity. Counsel further submitted that given that there is no authority/company resolution of the members of the 1st Plaintiff to institute this suit, counsel for the 1st Plaintiff acted without any instructions from the 1st Defendant/Counter – claimant in contravention of Regulation 2 of the *Advocates (Professional Conduct) Regulations, S. I 267 -2*.

[8] In rejoinder, to the submission of counsel for the 1st Defendant/ Counter – claimant that the Counter – claimant bought the suit land from Openy Okura, counsel for the Plaintiffs/ 1st and 2nd Counter - defendants submitted that Openy Okura did not have legal mandate to sell the suit land which is public land.

[] On the preliminary objection by counsel of the 1st Defendant/ Counter – claimant that the 1st Plaintiff did not have authority to institute this suit, counsel for the Plaintiffs submitted that although it is a practice for companies to obtain a board resolution to authorize legal proceedings, the Companies Act does not explicitly require a resolution for every instance when a suit is filed by a company. A competent officer of the company such as a director, secretary or any other individual with authority to act can initiate legal proceedings without a specific resolution to that effect. For that proposition of the law, counsel relied on the case of *Alisen Foundation Group of Companies Ltd versus Bazara Julius HCMA No. 0054 of 2023*.

[9] On the submission of counsel for the 1st Defendant/ Counter – claimant that the Counter – claimant bought the suit land from Openy Okura, counsel for the Plaintiffs submitted that Openy Okura did not have legal mandate to sell the suit land which is public land.

#### **Analysis and determination of the court:**

[10] On the preliminary objection that the Counter -claim does not disclose a cause of action against the Counter - defendants, a counter – claim being a cross - suit is regarded as a plaint and must comply with all rules governing the filing of a plaint. Order 7 rule (11) of the *Civil Procedure Rules, S. I. 71 – 1* provides that a plaint shall be rejected where it does not disclose a cause of action. A cause of action was defined by the Supreme Court in *Attorney General versus Major General David Tinyefunza, Constitutional Appeal No. 1 of 1997* to mean;

> *"…every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant... it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit."* Underlined for emphasis.

[26] In the celebrated case of *Auto Garage -vs- Motokov (No. 3) (1971) EA. 514*, at page 519, Spry V. P, held that;

*"I would summarise the position as I see it by saying that if a plaint shows that the plaintiff enjoyed a right, that right has been violated and that the defendant*

*is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment."*

[27] A determination as to whether a plaint discloses a cause of action or not has to be made only upon perusal of the Plaint and its annexures if any and nowhere else. See: the case of *Kapeka Coffee Works Ltd versus NPART CACA No. 3 of 2000.* The same view was also expressed in the East African Court of Appeal case of *Jeraj Shriff & Co Versus Chotai Fancy Stores [1960] 1 EA 374* where Windham J. A. at page 375 held that:

*"The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it and upon the presumption that any express or implied allegations of fact in it are true."*

[28] In the instant case, although at paragraph 5(a) of the counterclaim, the Counter -claimant pleaded that he purchased a goodwill of the suit land from Openy Akura, annexure 'A' to the Plaint shows that he bought the suit land. It makes no mention of goodwill. At Paragraph 5(b), he pleaded that upon execution of the agreement for purchase of the suit land, he took possession of the suit land, constructed grass thatched houses thereon, started small scale agriculture and has been on the suit land undisturbed. At Paragraphs 5(c) & (d), he pleaded that he applied for a lease from Amuru District Land Board, the land was inspected by the Area Land Committee and surveyed by Amuru District Land Surveyor. In annexure 'B2' which is a Demarcation Form, it is indicated that the Counter – claimant is the customary owner of the suit land. At paragraph 5(e) – (g) he pleaded that the Counter – defendants resurveyed the suit land when he had already surveyed it. He lodged a complaint to Amuru District land Board. Annexure 'D' is the complaint wherein he stated that he is the owner of the suit land and yet the 2nd Counter – defendant is claiming the same piece of land. In Paragraph 8 of the Counter

– claim, he pleaded that that acts of the counterclaimants have caused him mental anguish and loss of income for which he seeks payment of damages.

[29] In my view, the Counter – claim, read together with the annexures to it, shows that the Counter – claimant enjoys a right as a customary owner of the suit land. His right was violated by the 2nd Counter – defendant who is claiming to own the same land and the Counter – defendant went ahead to re-survey the suit land causing him mental anguish and loss of income. The Counter -claim therefore discloses a reasonable cause of action against the Counter defendants.

[30] I have not found merit in the submissions of counsel for the Counter – defendants that because the Counter -claimant sought for a declaration that the suit land is public land, he therefore has no valid ownership right over the suit land which is public land. The position of the law was settled in *Attorney General versus Major General David Tinyefunza* cited above that a determination as to whether a plaint discloses a cause of action does not depend upon the character of the relief prayed for by the plaintiff*.* I therefore find that the preliminary objection that the counter – claim does not disclose a cause of action is without merit. It is accordingly rejected.

[31] On the preliminary objections which was raised by counsel for the 1st Defendant /Counter – claimant that the 1st Plaintiff's suit is a nullity because it was filed without authority/company resolution of the members of the 1st Plaintiff and that counsel for the 1st Plaintiff is acting without instructions, my considered view is that those matters cannot be raised as preliminary objections. In the *Mukisa Biscuits Manufacturing Co. Ltd* (supra) Law JA stated at page 700 that;

*"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*

[32] The issue as to whether the 1st Plaintiff filed the suit without authority/company resolution of the members of the 1st Plaintiff and whether counsel for the 1st Plaintiff was not given instructions in the matter are all matters of evidence. The burden is on the Counter- claimant, who has raised the matter, to prove his allegations. I am fortified by the decision of the Nigerian Supreme Court in the case of *Haston (Nigeria)Limited versus African Continental Bank Plc, SC 109, 1998 (2002) LPELR) 1359 (SC)* where the court held that it must be presumed that the suit was authorized by the board of directors of the company unless the contrary is proved by the party who asserts it.

[33] Similarly, in *Narvichandra Kakumbhai Radia versus Kakubhai Kalidas and Co. Ltd SCCA No. 10 of 1994* in which a similar objection had been raised in the High Court. The Supreme Court agreed with the trail judge that the issue whether the authority was given and whether counsel had instructions was a matter of evidence which required proof and that the burden was on the party making the allegation.

[34] In the instant case, the 1st Defendant/Counter - claimant has not led a shred of evidence to support his contention that the 1st Plaintiff's suit was not authorized by the 1st Plaintiff's board of directors or that counsel for the1st Plaintiff was not given instructions. I therefore find no merit in the preliminary objections that the 1st Plaintiff's suit is a nullity because it was filed without authority/company resolution of the members of the 1st Plaintiff and that counsel for the 1st Plaintiff is acting without instructions. The objections are according rejected.

I so order.

Dated and delivered by email this 30th day of May 2024.

Phillip Odoki

**Judge.**