[2001] UGCA 22

## THE REPBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA. \* HON. JUSTICE S. G. ENGWAT], JA. CORAM:

## CIVIL APPEAL NO.62 OF 1999

#### BETWEEN

## JTISTINE E. M. H. LUTAAYA::::: ::: :: :::::::::: :: ::APPELLANT

#### AND

# STIRLING TNTERNATIONAL )::::::::::::::::RESONDENT crvrl- ENGTNEERTNG CO. LTD.)

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(Appeal arising from the decision of the High Courr (Byunugisha, J) in Civil Suit No. 494 of 1995).

#### JUDGMENT OF G. M. OKELLO. JA

This is an appeal from the decision of the High Court (Bvamugisha, J) dated l7l8l99 in HCCS No 494 of 1995, whereby the appellant's suit was dismissed with costs.

ll) By a plaint dated 2215195, the appellant on 1616195 instituted in the High Court, a suit against the respondent, claiming aggravated damages and other reliefs, for trespass upon the appellant's mailo land described as Kyaggwe Block l9l Ptot 34 at Gwawanya, Kinga and Kapeke. ln the suit, the appellant alleged that the respondent blasted stones and excavated murram from the land and carried them awav without the appellant's permission.

The amount and total value of the stones and murram which the respondent removed was not ascertained but was estimated to be over Shs 400.000,000/:.

- Io It is important to note that at the time of institutrng the suit, the appellant had transferred her mailo estate to her son A. K. P M Lutaaya and one Pradip Karia, her associate in a companv called Timbers & Tools Ltd. The appellant and her said son, Lutaaya, were alreadv directors in that company. The land was leased to the company but the lease was later nullified for want of the Minister's pnor consent There was also a claim of ownership over the land by Sirimuzawo which the High Court dismissed in favour of the appellant in HCCS No 879/88. - t5 l In its Written Statement of Defence dated 617 195, the respondent admitted in paragraph 5 thereofthat it entered the said land under licence {iom one Ruth Sirimuzawo who was the apparent owner thereof from whom the respondent was in the process of purchasing the said land. The respondent further admitted that it excavated stones from the land for processing aggregate and also got murram from the land. It attached the valuations of the stones and murram it carried away liom the land. The appellant disputed the valuation. In paragraph 7 of its Written Statement of Defence (WSD), the respondent challenged the appellant's capacity to institute the suit.

When the case was called for hearing in the High Court, two preliminary objections were raised: l5

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- (l) that the amended plaint was filed out of time - (2) that the plaint disclosed no cause of action

l The trial judge upheld the first objection and the hearrng proceeded on the original plaint which the trial .ludge found to disclose a cause of action. The following issues were then framed:-

- (a) whether the suit land belongs to the plaintiff. - (b) whether the defendant trespassed on the plaintrffs land, - (c) whether the defendant occupied the suit land under ^a licence from the apparent owner, and if so, - (d) whether the defendant is excused from liability to the plaintiff, and, - (e) Relief, if any

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Appellant called three witnesses. Her attempt to produce in evidence valuation report to show the quantity and value of the stones and murram removed by the respondent fiom the suit land was rejected because no stamp dutv was paid on it. Her counsel's request for adjournment to pay the requisite stamp duty was refused and the appellant's case rested there. The trial judge accordingly decided the case under 0 l5 r 4 ofthe Civil Procedure Rules

In the ;udgment that followed, the trial ludge found that the appellant's capacity to institute the suit was obscure since at the time of instituting the suit, her mailo estate was registered in the names of other people. She also found that trespass was not proved and dismissed the surt. Hence this appeal

The memorandum of appeal comprised ll grounds framed as follows:-

- (l) the learned Judge having ruled on a preliminarv point of law that the plaint showed a cause of action erred in law to have held afterwards in herludgment that the plaintiff had no cause of action, - (2) the learned Judge having ruled on preliminary objection raised by the defendant, that the plaintiff's case was based on trespass committed during the time when the plaintiff was the person entitled to the suit land, erred in law and fact when she later in her judgment held that the plaintiff was not entttled to the same suit land for the same period, - (3) the learned Judge erred in law when she held that Timber & Tools Ltd. was still the recognised proprietor of the suit land,

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- (4) the learned Judge erred in law when she held that without setting a date as to when the trespass actually commenced there could be no trespass proved, - (5) the learned Judge failed to appreciate the pleadings particularly the admission in paragraph 5 of the Written Statement of Defence acknowledging the activities of the defendant on the suit land and the defendant's dealings with the plaintiff as reflected in paragraph 5 and 7 (c), - (6) the learned Judge erred in law when she constituted herself a court of appeal over her earlier decisions in the case, - (7) the learned Judge ened in law when she refused to allow the plarntiff to pay stamp duty on the valuatron report when the plaintiff offered to do so immediately, - (8) the learned Judge erred in law when she speculated on the rejected valuation report that it would have been objected to by the defence for the reason that it had been ordered by A K P. M. Lutaaya, - (9) the learned Judge erred in law when she proceeded to determine the suit and gave ludgment without waiting for the outcome of the interlocutory appeal, notice of which

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had been given concerning the ruling on payment of stamp duty,

- (10) the learned Judge erred in law when she adopted the procedure under 0 15 14 of the Civil Procedure Rules when there was no justification to do so, - (l I ) the learned Judge ened in law and fact when she failed to properly record the submission of counsel for each party on the question of stamp duty.

Counsel for both parties submitted written submissions in which the grounds were argued together Mr. Lule, learned counsel for the appellant, critrcised the trial Judge, firstly for finding in her ludgment that the appellant had no locus standi to institute the suit when she had earlier in her Ruling on ^a preliminary objection, found that the appellant had a cause of action as a reversioner. He argued that after finding on a preliminary ob.lection in favour of the appellant, the trial Judge was functus officio to reverse her decision in her final judgment. Counsel did not cite any authority to support that proposition. l5 l0

On the other hand, Mr. Mutaawe, learned counsel for the respondent, contended that finding on a preliminary oblection that a plarntiffhas a cause of action is one thing but proving the allegations made in the plaint is another. He submitted that the trial Judge found on the evidence that at the time of instituting the suit, other people were registered as the mailo owners

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t5 of the suit land. The trial Judge was therefore right to find that the appellant's capacity to institute the suit was obscure.

The trial Judge dealt with this issue in her judgment as follows:-

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"l shall deal with the issues in the order they were framed. The first is whether the land belongs to the plaintiff. This issue was framed in response to the allegation in the plaint to the effect that she was the registered proprietor of the land mailo estate. At the time of the instituting the suit in June 1995, the land belonged to some other people. She had already transferred her mailo estate. At the same time, exhibit D2, the title deed, shows that there is a subsisting Lease of 49 vears in favour of Timber and Tools Ltd. Therefore, the capacity under which the plaintiff filed the suit was obscure to say the lease."

The procedure to determrne whether a plaint discloses a cause of action was stated by the former East Afiica Court of Appeal in .4 Gar e and others

2{r Vs Motokov ll97ll EA 514, that only the plaint and its annextures, if any, must be looked at. Where a plaint shows that the plaintiff enjoyed a right, that right has been violated and that the defendant is liable, then a cause of action has been disclosed. If on the other hand, any of those essenttals is missing, no cause of action has been shown and no amendment is perm issible. 25

ln the instant case, paragraph 3 ofthe plaint alleges that:-

"The plaintiff is the registered proprietor of the Mailo Estate comprised in Kyaggwe Block l9l Plot 34 at Gwawanya, Kinga and Kapeke, (the suit properfy) which she acquired for the purpose of estahlishing the operating a quarrying business. Copy of the Cerfificate of Title is annexed and marked 'A' and she had granted a lease to ^a non African Company, Timber and Tools Ltd., a company incorporated in Uganda in which the plaintiff is ^a shareholder and director, and whose lease was nullified in High Court, Civil Suit No. 897/88 thus the entire benefit of the profits of the land resulting to the plaintiff from inception."

The above passage shows that the appellant enjoyed a right. She was the registered proprietor of the mailo estate of the land at the time of filing the suit. A copy of the Certificate of Title, Annexture'A'was attached to the plaint to substantiate the averment. On the basis of this paragraph, when he assumed the facts therern to be true, the trial Judge overruled the preliminary objection which challenged the appellant's nght to institute the suit. She said:-

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"At the material time, the plaintiff was the registered mailo owner and in my view she is entitled to sue for any waste or damage caused to her interest in reversion."

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Mr. Lule, submitted that having made that ruling on the preliminary objection. the trial Judge was functus officio in her final .;udgment to rescind or reverse it Learned counsel did not cite anv authority to support that proposal. With respect, I am not persuaded by that submission. The decision of the Judge on the preliminary objection on the right of the appellant to institute the suit was based on the assumption that the facts alleged in the plaint were correct. That was not what the decision in the judgment was based on. lt was founded upon the consideration of the evidence available

- The Annexture 'A' Appellant's Certificate of Trtle was tendered in evidence as Exh. Dl. It shows that at the time of institutrng the suit. other people were registered as the mailo owners of the land Thev are: l{) - ( ^I) Justine M. N. Lutaaya, appellant who was registered on ^r6/8/81 - (2) Pradip Nandlal Karia, and - (3) Abraham K. P M. Lutaaya. The last two were registered on 2714195.

Clearly, on l616195 when the appellant instituted this surt, the mailo Register showed that there were three registered proprietors of the mailo estate of the land as shown above Abraham K. P M. Lutaaya, (PW2) also confirmed in his evidence, that he and Karia were registered proprietors ofthe suit land at the time he was giving evidence. It follows that even if this was a joint ownership, appellant could not institute the suit alone without the co-owners

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or their permission. Had the trial Judge looked at annexture 'A' to the plaint, she would have found that, besides the appellant, there were two other people registered as the proprietors of the mailo estate of the suit land. At that stage, she would have upheld the objection since the appellant did not enjoy the right of ownership of the suit land alone as she claimed. However, I do not think that her hands are tied by her decision on the preliminary ob.lection which was based on assumption that the averments of facts in the plaint are true, ifthe evidence proved that the appellant did not in fact enjoy the right she claimed. On the evidence available, the trial Judge was therefore justified to find as she did. This point alone is enough to dispose of the appeal since, if the appellant lacked locus standi to institute the suit, what ever admission that might have been made of the trespass is of no legal consequence.

No useful purpose is served by proceeding to consider other points l5

In the result, I would dismiss the appeal and uphold the trial Judge's decision. I would award the respondent costs of this appeal.

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Dated at Kampala this 94^ day or... J\$/1. 2oot.

AJ.^^.-., GM OKELLO.

.l STICE F APPEAL

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT I({MPALA

HON, JUSTICE G. M, OKELLO, JA. HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. MR JUSTICE S. G. ENGWAU. JA. CORAM:

## CIVIL APLICATION NO.62 oF ¹⁹⁹⁹

### BETWEEN

## JUSTINE E. M. H. LUTAAYA : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

### AND

# STIRLING INTERNATIONAL } CIVIL ENGINEERING CO. LTD.} ::::::::::::::: RESPONDENT

(Appeal arising from the decision of the High Court (Byamugisha, J) in Civil Suit No.494 of 1995).

# JUDGMENT OF A. E. MPAGI-BAHIGEINE. JA.

I have read in draft the judgement of Okello J. A. I am in agreement with my brother's findings. A preliminary objection is argued on the assumption that all the facts pleaded by the other side are correct. Iftherefore the learned judge subsequently found the facts as given to her to be different, she was justified in changing positions.

I would dismiss the appeal

Dated at Karnpala this -.. )s-fe ... dayor !rU"1 ²⁰⁰¹

4"^J" . E. MPAGI-BAHIGEINE JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

CORAM: HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. JUSTICE S. G. ENGWAU, JA.

### CIVIL APPEAL NO. 62 OF 1999

#### **BETWEEN**

### **JUSTINE E. M. H. LUTAAYA::::::::::::::::::APPELLANT**

#### AND

#### **STIRLING INTERNATIONAL** } CIVIL ENGINEERING CO. LTD. .:::::::::::RESPONDENT

(Appeal arising from the decision of the High Court (Byamugisha, J) in Civil Suit No. 494 of 1995).

### JUDGMENT OF S. G. ENGWAU, JA

I had the benefit of reading the judgment of Okello, JA. and I agree with his reasons and conclusion. I have nothing more useful to add.

In the result, I would dismiss this appeal with costs.

Dated at Kampala this ....................................

Trasan S. G. ENGWAU **JUSTICE OF APPEAL.**