[2024] UGSC 22

# THE REPUBTIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 04 OF 2022

#### M ETROPOLITAN PROPERTIES LTD: : : : : : : : : : : : : : : : : : :APPELLANT

#### VERSUS

#### MAYIMUNA MUYE AMIN RESPONDENT

(Appeal from the decision of the Court ofAppeal (Cheborion, Musota and Madrama, llA) in Ovil Appeal No. 180 of 2014 dated 2?d December, 2021)

## CORAM: HON. LADY JUSTICE FAITH MWONDHA, JSC HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA - EKIRIKUBINZA, JSC HON. LADYJUSTICE PERCY NIGHTTUHAISE, JSC HON. MR. JUSTICE MIKE J. CHIBIT& JSC HON. LADY JUSTICE ETIZABETH MUSOKE, JSC

#### JUDGMENT OF ELIZABETH MUSOKE, JSC

This appeal is against the decision of the Court of Appeal (Cheborion, Musota and Madrama, JJA) in Civil Appeal No. 180 of 2014 dated 22nd December, 202t.

#### Background

The respondent instituted, in the High Court, a suit against the appellant seeking, among others, a declaration that she is the lawful owner of a parcel of land situated at Mbuya in Kampala District; and for cancellation of ^a ceftificate of title held by the appellant purporting to cover the same land. The respondent claimed a freehold interest in the suit land and relied on a certificate of title which showed her as the registered proprietor. According to that certificate of title, the suit land is known as Freehold Register Volume 210 Folio 11, Plots L2,14,16,17,18,28 and 29 and is situated at Mbuya. The respondent further claimed that she had been the registered proprietor

since 22nd July, 1993, when she obtained a transfer of the land from its previous registered proprietor, the Uganda Land Commission (ULC).

At the same time, the appellant also holds a ceftificate of title for the suit land. According to the appellant's title, the suit land is known as Leasehold Register Volume 3326 Folio 12, Plot 17 Serunkuma Road, Kampala District. The appellant, in its pleadings, claimed that its title is supported by a lease granted to it by the ULC on ls December, 2004for a term of 49 years. The appellant further claimed that the suit land was available for leasing when the ULC granted its lease, and doubted that the ULC had previously transferred the suit land to the respondent as alleged.

During the early stages of handling the respondent's suit in the trial Court, when it had only come up for mention on a number of occasions, and before a scheduling conference for the suit had been held, the appellant's counsel raised a preliminary objection to the suit, framed as follows:

"That the plaintiff's own pleadings in paragraph 4 (i) and (ii) of the plaint disclosed an illegality. That the Land Reform Decree which was still in force on the date, that is 22nd July, 1993, the plaintiff was registered as a proprietor of freehold title prohibited the holding of fteehold, creating an interest in land greater than a leasehold, by or in favour of an individual. (sic)"

The learned trial Judge (Murangira, J), after considering written submissions of counsel on the preliminary objection, made a ruling upholding it. He reasoned that the registratlon of the respondent on 22nd July, 1993 as an owner of a freehold interest was illegal as it was done in contravention of the Land Reform Decree, 1975, the law in force at the time, which, under Section 2 (1), prohibited anyone from owning an interest greater than leasehold including a freehold interest. The learned trial Judge held that, owing to the highlighted illegality, the respondent had no cause of action against the appellant and accordingly dismissed her suit with costs. He also declared the respondent's certificate of title null and void and ordered for its cancellation.

The respondent was dissatisfied wlth the learned trial Judge's decision and appealed to the Court of Appeal. The Court of Appeal found that the underlying question raised by the respondentt suit, namely, which of the respondent's or the appellant's certificate of title was valid, could only be determined after a full trial and not in a decision on a preliminary objection before trial, as the learned trial Judge had done. The Court of Appeal further found that the course adopted by the learned trial Judge amounted to a summary decision which had violated the respondent's constitutionally guaranteed right to a fair hearing through a full trial. The Court of Appeal therefore reversed the decision of the learned trial Judge and made an order remitting the matter back to the High Court for trial on the merits before another Judge.

The appellant was dissatisfied with the judgment and orders of the Court of Appeal and lodged the present appeal in this Court on the following grounds:

- '1) The learned Justaces of Appeal erred in law when they failed to distinguish between freehold land held by the Uganda Land Commission and freehold land held by other pensons with respect to convercion of freehold to leasehold by operation of law. - 2) The learned Justices of Appea! erred in law when they failed to hold that the freehold land held by and registered in the name of the Uganda Land Commission was not converted into leasehold by operation of law. - 3) The learned Justices of Appeal erred in both law and fact when they held that the appellant's preliminary objection in the High Court that the r€spondent could not take a lawful transfer ofthe suit property from the Uganda Land Commission as registered owner of a freehold could not be fairly resolved without further evidence. - 4) The learned Justi€es of Appeal erred in both law and in fact when they held that the respondent was denied a fair hearing in the High Court."

The appellant prayed this Court to make the following orders:

- "a) The appeal be allowed. - b) The judgment and orders of the Court of Appeal be set aside. - c) The ruling and orderc of the High Coud be upheld and the respondent's suit be dismissed. - d) The respondent pays to the appellant the costs of this appeal and the costs in the Court of Appeal and the High Court."

The respondent opposed the appeal and prayed that this Court dismisses it with costs.

### Representation

At the hearing, Mr. George Arinaitwe, holding brief for Mr. Peter Nkurunziza, appeared for the appellant. Mr. Caleb Alaka and Mr. Alex Kamukama, holding brief for Mr. Joseph Kyazze and Mr. Mpumwire Abraham Dalton, jointly appeared for the respondent.

The respective counsel filed written submissions.

## Appellant's submissions

For purposes of my decision in this appeal, I shall only consider the respective counsel's submissions on grounds 3 and 4.

## Grounds 3 and 4

In support of ground 3, counsel for the appellant submitted that the Court of Appeal erred in finding that the point of law raised against the respondent's certificate of title could not be fairly resolved as a prellminary objection and that it required fufther evidence for its resolution. Counsel contended that a point of law may be taken and determined as a preliminary matter if it may dispose of the suit, and fufther that the trial Court has the discretion as to when to make a ruling on the objection. Counsel pointed out that in this case, the point of law was an objection by the appellant to the respondentt title which the appellant contended was illegally obtained

contrary to the Land Reform Decree, 1975. Under that decree, it was illegal for an individual to own an interest greater than leasehold yet the respondent's title which was issued while the decree was still in force was a freehold interest which was greater than leasehold. Furthermore, counsel contended that the respondent's title clearly supported these facts, and it was unnecessary to adduce any fufther evidence to prove them.

In relation to ground 4, counsel contended that the respondent was given a fair hearlng on the point of law whose determination did not require adducing further evidence. Furthermore, that the respondent's counsel in the trial Court did not ask to adduce further evidence in answer to the point of law, and, only raised legal arguments based on the powers of a registered proprietor under Section 92 of the Registration of Titles Act, Cap. 230, the effect of Section 2 (1) of the Land Reform Decree and the interrelationship between those two legal provisions. These arguments were considered and rejected by the trial Court.

Counsel fufther contended that when a point of law is determined as ^a preliminary matter in circumstances that do not call for adducing further evidence for its determination, a fair trial is deemed to have been achieved.

Counsel also submitted that, in any case, the Court of Appeal, as an appellate Court was obligated to dispose of the point of law raised against the respondent's title instead of referring it back to the High Court for determination. For this submission, counsel relied on Ham Enterprises Ltd and 2 Others vs. Diamond Trust Bank (U) Ltd and Another [2023] UGSC 15. Counsel contended that the Court of Appeal abdicated from this duty and prayed that this Couft resolves the point of law, instead of referring the matter back to the High Court as the Couft of Appeal did, because it does not require the calling of evidence for its determination.

#### Respondent's submissions

In relation to ground 3, counsel for the respondent submitted that Court of Appeal correctly found that the point of law raised against the respondent's

title was not a pure point of law and that it could not be considered as a preliminary objection. Counsel, referring to the East Africa Court of Justice case of James Katabazi and Otherc vs. Attorney Genera! of Uganda and Another, Reference No. 1 of 2007 (unreported), advanced a legal proposition that a preliminary objection cannot be raised if any fact has to be asceftained or if what is sought is the exercise of judicial discretion, Counsel further suppofted the Court of Appeal's finding that disputes on land ownership, Iike the one in this case, and generally disputes regarding illegality and fraud can only be fairly and judiciously determined after a full trial. For this submission, counsel cited the Ham case (supra) and Fang Min and Others vs. Belex Tours and Travel Ltd, Supreme Court Civil Appeal No.6 of 2013 (unrepofted).

Counsel also contended that the learned trial Judge's decision fell below the threshold for adjudication of land disputes which was discussed in the Court of Appeal case of Brian Kaggwa vs. Peter Muramira, Civil Appeal No. 26 of 2OO9 (unrepofted) and requires a trial Court to reach a decision after evaluating the evidence of the case.

With respect to the appellant's submissions on ground 4, counsel submitted that the contention that the trial Court afforded the respondent a fair hearing was devoid of merit. In counsel's view, without a hearing being conducted, the respondent could not cross-examine witnesses on the contents of the annextures to the appellant's written statement of defence yet the same were heavily relied on in the learned trlal Judge's decision, Furtherstill, that the failure allow cross-examination was prejudicial to the respondent and had offended her right to a fair hearing because her rights in the suit property were determined in a summary manner. In those circumstances, the Couft of Appeal's conclusion that courts in Uganda may only reach the right decisions after hearing the pafties to the suit based on the pleadings and the evidence cannot be faulted.

{

### Appellant's submissions in rejoinder

Counsel for the appellant, in the submissions in rejoinder, merely reiterated his earlier submissions in support of grounds 3 and 4.

### Consideration of the Appeal

I have carefully studied the record and also considered the respective counsel's submissions and the law and authorlties clted. This is a second appeal against a decision rendered by the Court of Appeal in an appeal from a decision of the High Coud, and this Couft's duty while handling such appeals is to determine whether the Court of Appeal, in determining the first appeal, properly appraised the evidence and arrived at an appropriate conclusion supported by the law and evidence. See: Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of ¹⁹⁹⁷ (unreported).

I have carefully considered the respective counsel's submissions on grounds 3 and 4. I begin by observing that the learned trial Judget decision from which this appeal arises was a ruling dismissing the respondent's suit on a point of law. Such decisions are made under Order 6 Rule 28 and 29 of the Civil Procedure Rules, S,I 71-1 ("CPR"). Rule 28 provides in material part that:

### "...by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."

Rule 29 provides for dismissal of a suit on a point of law and is in the following terms:

#### "29. Dismissal of suit.

If, in the opinion of the couft the decision of the point of law substantially disposes of the whole suit, or of any distinct cause of action, ground of defence, setoff, counterclaim, or reply therein, the

z' couft may thereupon dismiss the suit or make such other order in the suit as may be just."

The points of law that may be taken under the above provisions are commonly referred to as "preliminary objections". In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] 1 EA 696 (per Law, JA) it was stated that:

"a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suat. Examples are an objection to the jurisdiction of the cou\$ or a plea of limitation, or a submission that the partaes are bound by the contract giving rise to the suit to refer the dispute to arbitration."

In the same case, Sir Newbold, P had thls to say about preliminary objections:

"A preliminary objection as 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 the 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."

In this case, the learned trial Judge considered a polnt of law raised by counsel for the appellant and determined it as a preliminary objection. Before discussing the substance of the said point of law, it is, in my view, worth considering an important point of procedure which is whether the learned trial Judge proceeded correctly when he determined the point of law before conducting a scheduling conference. The guidance given by this Court in the case of Tororo Cement Co. Ltd vs. Frokina International Ltd, Civil Appeal No. 2 of 2OO1 (unrepofted) is that the holding of a scheduling conference, which should be done before hearing any issue arising from the case/ is, under the provisions of the CPR, mandatory. Tsekooko, JSC stated as follows in that case:

"I ought at this stage to note the apparent non-compliance with the provisions of Order XB of the Civil Procedure Rules, During the hearing of this appeal, we were informed by counsel, that prior to the hearing of the case, no scheduling conference took place in the High Court. Under the new Order XB ofthe CP Rules, the holding ofa scheduling conference is mandatory. See Rule 1 (1) thereof. The principal objective of the scheduling conference is to enable court to assist parties to dispose of cases expeditiously by sorting out points of agreement and disagreement or assessing the possibility of mediation, arbitration and other forms of settling the suit. After a scheduling conference, and where it is necessary, interlocutory applications can then be made and be disposed of before the suit is fixed for hearing. In that way, the progness of the suit is managed systematically.

## One hopes that the holding of a schedulang conference will be a regular feature in the trial of civil cases by all trial Courts."

The proposition that every trial Court is obligated to hold a scheduling conference before deciding any matter related to the case is supported by the express wording of Order 12 Rule 1 of the CPR, which is in the following terms:

"1. Scheduling conference.

(1) The court shall hold a scheduling conference to sort out points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement-

(a) within seven days after the order on delivery of interrogatories and discoveries has been made under rule 1 of Order X of these Rules; or

(b) where no aoolication for interrooatories and discoveries has been made under rule 1 of Order X of these Rules. then within twenty-eioht days from the date of the last reolv or reioinder referred to in rule 18(5) of Order VIII of these Rules, except that the time mav be extended on aoolication to the couft, showing sufficient reasons for the extension,"

The operative provision in this case is Order 12 Rule 1 (b) under which every trial Court is obligated to conduct a scheduling conference within 28 days from the date of the filing of the pleading constituting the last reply or rejoinder within the meaning of Order 8 Rule 18 (5). In the present case, the learned trial Judge conducted no scheduling conference before proceeding to dismiss the respondent's suit on a point of law he allowed to be taken as a preliminary objection. This was procedurally incorrect, This finding is sufficient to dispose of the appeal since the learned trial Judge's decision which was arrived at in disregard of the rules of procedure can be set aside for that reason alone. However, I will proceed to make brief obseruations on other key points made by the appellant in this appeal.

The most important remaining question arising from the decision of the learned trial Judge is whether the point of law that formed the basis of his decision could properly be taken as a preliminary objection and relied on to dismiss the respondent's suit. According to the earlier referenced definition from the Mukisa Biscuit Manufacturing Co. Ltd case (supra), a preliminary objection is a pure point of law which if argued as such may dispose of the suit. In my view, traditionally, and as seen from the examples given by Law, JA in the Mukisa Biscuit Manufacturing Co. Ltd case, the points of law that qualifu as preliminary objections are those of a fundamental nature to the sustainability of the suit such as an objection to the jurisdiction of the Court, a plea of limitation, or arguments that pafties have a binding agreement to refer their dispute to arbitration.

I am also aware of the dictum of Romer, U in Everett v. Ribbands and Another [1952] 1 ALL ER 822 which may be understood by some as widening the scope of the nature of points of law that may be taken as preliminary objections. Romer, U stated in that case as follows:

"I think it is a pity that this point was not set down as a preliminary point of law before the hearing. The action was a substantial one. I understand it was estimated to last three days, and I can well believe that it would. The point of law, if decided, as it has been, against the plaintiff, would have been decisive of the case. Although there may have been good

reason for not applying, I should have thought this was the very class of case in which an application ought to have been made under Ord 25, r 2, to have the point determined before the hearing so as to save all discovery of documents, the collecting together of witnesses, and so on, and have the question decided at a very early stage. Where there is a point of law which, if decided in one way, is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards."

However, I must observe that the point of law raised in the Everett case (supra) related to the cause of action, that is, whether the facts in the pleadings supported the plaintiff's cause of action for malicious prosecution. Therefore, it was of a fundamental nature.

I also wish to point out that the approach taken in other jurisdictions such as India and England and Wales, is that trial Courts are encouraged to determine as points of law, only such points of a fundamental nature because they raise a question on the sustainability of the suit. In India, their Code of Civil Procedure has been amended to define preliminary issues as points of law relating to the "jurisdiction of the Court" or to those that constitute a "bar to the suit created by any law for the time being in force." See: Indian Supreme Court case of Sathyanath & Another vs. Sarojamani, Civil Appeal No. 3680 of 2022 (unreported) for a discussion on this point.

Therefore, in my mind, there is a distinction between fundamental points of law that relate to the sustainability of a suit, and points of law that are interlaced with the other points arising in the suit, whether of fact or mixed law and fact. It is the former and not the latter points of law that ought to be determined as preliminary objections. The rationale is that the purpose of determining certain points as preliminary points of law is that owing to the certitude of result, a decision on those points is certain and will dispose of the case. The danger of a trial Court determining, as a preliminary objection, a point of law whose answer is not settled, is that if the trial Court's decision is set aside on appeal, it will lead to remitting the case back to the trial Court for hearing on the merits and this will result in delayed justice.

The above discussion, in my view, clearly describes the considerations a trial Court ought to bear in mind when exercising its discretion under Order 6 Rules 28 and 29 of the CPR on the question of whether or not a point of law may be taken and allowed as a preliminary objection. These considerations may be summarized as follows: a) A point of law may be taken as a preliminary objection if it is a pure point of law, the positive determination of which may dispose of the suit; b) a point of fact or mixed law and fact, which may require evidence for its determination should never be taken as preliminary objections $c$ ) a pure point of law is one which is fundamental in nature in that it raises questions against the sustainability of the suit, for example, a point on jurisdiction, limitation, cause of action, or an agreement to refer the dispute to arbitration; d) a point of law, which is interlaced with the other points arising in the suit, whether of fact or mixed law and fact, should not be determined as preliminary objection due to the risk of reversal of the decision on the points on appeal and the resultant remittal of the file back for hearing of the case, resulting in delays in the trial.

I shall, for ease of reference, set out the point of law in this case, which was as follows:

"That the plaintiff's own pleadings in paragraph 4 (i) and (ii) of the plaint disclosed an illegality. That the Land Reform Decree which was still in force on the date, that is 22^nd July, 1993, the plaintiff was registered as a proprietor of freehold title prohibited the holding of freehold, creating an interest in land greater than a leasehold, by or in favour of an individual."

As seen from the above quotation, the point of law in this case was not carefully delineated, and it was difficult to state, with certainty, what it was. In the end the learned trial Judge treated the point of law as being related to cause of action, for he stated in his final orders, as follows:

"In the result, and for the reasons given hereinabove, the defendant's counsel's preliminary objection is upheld. Accordingly, I hold that the plaintiff's freehold title is null and void. The same and its related entries in the register book shall be cancelled by the Commissioner Land Registration. I so order. In addition to the afore said order, I hold that the plaintiff has no cause of action against the defendant. Thus the plaintiff's suit is dismissed with costs."

However, with the greatest of respect, I am unable to agree that the point of law, in its form, raised an issue on cause of action. As stated by Wambuzi, CJ in Attorney General vs. David Tinyefuza, Constitutional Appeal No. 1 of 1997 (unreported) quoting with approval from Mulla on the Code of Civil Procedure, Volume 1, 14th Edition at page 206:

"A cause of action means 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 must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."

The question of whether a suit discloses a cause of action is considered basing on the pleadings and annextures thereto, and for that purpose it has to be assumed that the facts stated therein are true. In this case, the respondent, in her pleadings, sought for a declaration that she was the owner of the suit land by virtue of a certificate of title she held for the suit land, and also sought for a declaration that the appellant's certificate of title purporting to grant him ownership over her land was obtained illegally and fraudulently and ought to be cancelled. In my view, those facts disclosed a cause of action for the respondent against the appellant. Therefore, the learned trial Judge's contrary holding was incorrect.

Be that as it may, the majority of the reasoning in the learned trial Judge's ruling on the preliminary objection focused on "illegality" of the respondent's interest in the suit land, which he considered to have rendered her suit unsustainable. In a passage from the ruling at page 143 of the record, the

learned trial Judge, after considering the meaning of Section 2 (1) of the Land Reform Decree, 1975, stated as follows:

"I have looked at the said decree and indeed individuals were specifically prohibited from holding tenure of land greater than 99 years and the public bodies, religious and other charitable organizations could hold such land for not more than 199 years. The prohibition remained in force until the coming into force of the 1995 Constution.

$...$

Then the question arises as to how the plaintiff acquired a freehold certificate of title over the suit land? In view of the above cited law, it was not legally possible for the plaintiff to become the registered proprietor of a freehold estate in the suit land in July, 1993. Such registration of the plaintiff on the certificate of suit land comprised in Freehold Volume 11 Plot 17 Sserunkuma Road was contrary to the then existing law."

The learned trial Judge, basing on the above reasoning further stated, in a passage at page 146 of the record, as follows:

"It is well settled by the Supreme Court that a "Court of law cannot sanction that which is illegal. Illegality once brought to the attention of the Court overrides all questions of pleading including any admission made thereon.

In the instant case, an illegality has been pointed out and argued by the defendant and court cannot ignore such a complaint at the expense of justice. The law must prevail."

The learned trial Judge then discussed several cases that dealt with the effect of illegality and then concluded, in a passage at page 147 of the record, as follows:

"The conclusion I make from the above decided cases cited herein in this ruling is that what is done in contravention of the provisions of an act of Parliament cannot be made the subject of an action. It is an established principle that the court will not lend its aid in order to enforce a contract entered into with a view of carrying into effect anything which is prohibited law. It is trite law that the court cannot be used to enforce an illegal contract even if both parties entered it willingly."

It is apparent that the learned trial Judge found the cases of Kisugu Quarries Ltd vs. Administrator General [1999] 1 EA 163 (Supreme Court) and Kyagalanyi Coffee Ltd vs. Francis Senabulya, Couft of Appea! Civil Appeal No. 41 of 2OO6 (unrepofted) as supporting the proposition that what is done in contravention of an act of Parliament cannot be made the subject of an action. In other words, the learned trial ludge interpreted these authorities as establishing a principle that a point on illegality affects the sustainability of a sult and should always be decided as a preliminary objection. I found nothing in those authorities to suppoft this interpretation. I noted that in the Kisugu Quarries case, the point on illegality was neither taken nor decided as a preliminary objection, but was decided after full trial. The principle articulated in the Kisugu Quarries cases is the well-known principle that a Couft of law should not render a judgment that promotes an illegality. This principle is most fairly applied after a hearing of all the evidence in a full trial.

I reiterate my earlier view that a point of law, even one on alleged illegality, ought not be taken and determined as a preliminary objection if it is interlaced with other issues arising for determination in the case. The point of law in this case was closely interlaced with other issues, especially on whether the respondent's title was validly obtained, an issue which required the investigation of the circumstances under which the respondent's title was granted. If the respondent's title was willingly granted to her by the ULC, another related point arose on whether, under the Land Reform Decree, 1975, a freehold interest was not nullified but was converted into, and treated as a leasehold interest, by operation of the law. This point was answered in the affirmative in the judgment of Cheborion, JA, with which other members of the Couft concurred. It is not for purposes of this judgment, necessary to answer this point but I only wish to state that the point was interlaced with at least the other issue arising from the suit that I identified earlier.

I also wish to state that the view taken by Cheborion, JA that a land case can never be decided on a preliminary objection is not strictly correct. This view was expressed in various parts of his judgment. In a passage at page 76 of the record, the learned trial Justice of Appeal stated as follows:

"It would appear that there may indeed be cases where the point of law so raised requires no evidence for the Court to determine. However, most disputes relating to ownerchip of land, acquisition of title and other claims where allegations and @unter allegations of illegality and or fraud are pleaded, the court should conduct a trial where pafties adduce evidence in support or defence of their claims."

Cheborion, JA further stated, in a passage at page 77 of the record, as follows:

"It is evident from the plaant and the wratten statement of defence that there were allegations and counter allegations of illegality and fraud in the manner in which both the appellant and the respondent acquired their respective titles. Such claims in my view could only be determined after a full trial."

However, consistent with my analysis in this judgment, a fundamental point of law with a bearing on the sustainability of a suit, such as one on cause of action, or jurisdiction or limitation, may be taken and decided as ^a preliminary point and relied on to dlspose of even a land case.

For the above reasons, I would, although for different reasons, agree with the conclusion of the Court of Appeal that the point of law in this case should not have been taken as a preliminary point of law and should not have been relied on by the trial Court to dismiss the respondent's suit. The case should have proceeded to a full trial on the merits.

As can be seen from the reasons, it was not necessary to determine any of the grounds of appeal, in order to arrive at my decision in this appeal. In my view, none of the grounds capture the crucial questions arising from the decision of the learned trial Judge. All grounds would therefore be answered in the negative.

,/ a) h,

I would, accordingly, find that this appeal fails and make the following orders:

- a) The appeal is dismissed. - b) The decision of the Court of Appeal is upheld. - c) The case is remitted to the High Court for trial on the merits before another Judge. - d) The respondent shall have the costs of the appeal and those in the Courts below.

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. . . . . . . . . . . . . . . . . . . .

Dated at Kampala this $\frac{3}{2}$ day of $\frac{3}{2}$ and $\frac{3}{2}$ day of $\frac{3}{2}$ .

# Elizabeth Musoke

Justice of the Supreme Court

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram (Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Chibita, Musoke, JJ. SCI

# CIVIL APPEAL NO. 4 OF 2022

# METROPOLITAN PROPERTIES LTD .................. APPELLANT

# VERSUS

# MAYIMUNA MIryE AMIN......... .......... RESPONDENT

(An appeal arising from the judgment and decision of the Court of Appeal Civil Appeal No. 180 of 2Ol4 before Barishaki Cheborion Musota and Madrama, JJA dated 22"d December 202 1)

# JUDGMENT OF FAITH MWONDHA JSC

I have had the benefit of reading in draft the judgment of my learned sister Musoke, JSC, I concur with her ar-ralysis and decision. I also agree with the orders she proposed.

# Decision of Court

Since the other four members of Coram concur with the lead judgment, the appeal is dismissed in the terms as proposed therein. Dated at Kampala this .......1. day of.. \*\*)........2024.

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Faith Mwondha Justice of the Supreme Court.

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# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: MWONDHA; TIBATEMWA-EKIRIKUBINZA; TUHAISE; CHIBITA; MUSOKE; JSC)

# CIVIL APPEAL NO. 04 OF 2022

# METROPOLITAN PROPERTIES LTD....................................

### VERSUS

MAYIMUNA MUYE AMIN....................................

(Appeal from the decision of the Court of Appeal (Cheborion Barishaki, Stephen Musota and *Christopher Madrama, JA) in Civil Appeal No. 180 of 2014 dated 22^nd December, 2021)*

# JUDGMENT OF TUHAISE, JSC.

I have had the benefit of reading in draft the Judgment prepared by my learned sister Lady Justice Elizabeth Musoke, JSC.

I agree with her decision and conclusions that this appeal be dismissed with the orders given therein.

Dated at Kampala, this $\dots$ 1.3 day of $\dots$ 2024.

Percy Night Tuhaise Justice of the Supreme Court

Delivered by the Ryliston 13/6/24

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

#### MWONDHA, TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA, (CORAM: **MUSOKE JJ. SC.)**

#### CIVIL APPEAL NO: 04 OF 2022

#### **BETWEEN**

METROPOLITAN PROPERTIES LTD :::::::::::::::::::::::::::::::::::

#### AND

<table>

MAYIMUNA MUYE AMIN ::::::::::::::::::::::::::::::::::::

[An appeal from the decision of the Court of Appeal at Kampala (Cheborion Barishaki, Stephen Musota and Christopher Madrama, JJA) in Civil Appeal No. 180 of 2014 dated 22^nd December, 2021]

### **JUDGMENT OF CHIBITA, JSC**

I have had the benefit of reading in draft the judgment of my learned sister Hon. Justice Elizabeth Musoke, JSC

I agree with her decision that this appeal be dismissed and the orders she has proposed.

Dated at Kampala this $\frac{1}{2}$ day of $\frac{1}{2}$ 2024

Hon. Justice Mike Chibita JUSTICE OF THE SUPREME COURT

the Rysber 13/6/24

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: MWONDHA; TIBATEMWA-EKIRIKUBINZA; TUHAISE; CHIBITA; MUSOKE; JJSC)

#### CIVIL APPEAL NO. 04 OF 2022

#### **BETWEEN**

#### METROPOLITAN PROPERTIES LTD....................................

#### AND

#### **MAYIMUNA MUYE AMIN....................................**

(Appeal from the decision of the Court of Appeal (Cheborion Barishaki, Stephen Musota and Christopher Madrama, JJA) in Civil Appeal No. 180 of 2014 dated $22^{nd}$ December, 2021.)

#### JUDGMENT OF PROF. TIBATEMWA-EKIRIKUBINZA, JSC.

I have had the benefit of reading in draft the Judgment prepared by my learned sister Hon. Justice Elizabeth Musoke, JSC.

I agree with her analysis and conclusion that this appeal be dismissed. I also agree with the orders she has proposed.

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

- Ugalen HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

elmined on 13/6/24 by

the Registra