Court name
High Court of Uganda
Case number
Civil Appeal 81 of 2018
Judgment date
30 October 2020

Yaya v Obur and Ors (Civil Appeal 81 of 2018) [2020] UGHC 165 (30 October 2020);

Cite this case
[2020] UGHC 165
Short summary:

Civil Procedure —Preliminary Objections —A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence. A defendant wishing to rely on points of law as a preliminary issue is required to set out such points of law in the written statement of defence before the preliminary issue is regarded as properly raised.— Order 6 rule 28 of The Civil Procedure Rules — A point of law that is pleaded which when so raised is capable of disposing of the suit, may then by consent of the parties, or by order of the court on the application of either party, be set down for hearing and disposed of at any time before the hearing.— A party seeking to raise a point of law based on disputed facts which, if properly presented and supported by some form of affidavit evidence, may dispose the suit, is obligated to move the court by way of a formal application raising the point of law. The formal application should be duly supported by an appropriate affidavit containing the necessary evidence in support of the point of law.— Be that as it may, whether raised by way of formal application or informally at the commencement of the hearing, the

Court has discretion to dispose of the preliminary objection immediately or defer its ruling until after hearing the whole case Such a deferment may be made where it is necessary to hear some or the entire evidence to enable the Court to decide whether the objection raised is dispositive of the suit or not.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable Civil Appeal No. 0081 of 2018

 In the matter between

YAYA FARAJALLAH                                              APPELLANT

And

  1. OBUR RONALD
  2. OYELLA SUSAN
  3. ARACH JOYCE
  4. NGINYA MICHAEL                                            RESPONDENTS

Heard: 23 June, 2020.

Delivered: 30 October, 2020.

Civil Procedure —Preliminary Objections —A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence. A defendant wishing to rely on points of law as a preliminary issue is required to set out such points of law in the written statement of defence before the preliminary issue is regarded as properly raised.— Order 6 rule 28 of The Civil Procedure Rules — A point of law that is pleaded which when so raised is capable of disposing of the suit, may then by consent of the parties, or by order of the court on the application of either party, be set down for hearing and disposed of at any time before the hearing.— A party seeking to raise a point of law based on disputed facts which, if properly presented and supported by some form of affidavit evidence, may dispose the suit, is obligated to move the court by way of a formal application raising the point of law. The formal application should be duly supported by an appropriate affidavit containing the necessary evidence in support of the point of law.— Be that as it may, whether raised by way of formal application or informally at the commencement of the hearing, the

Court has discretion to dispose of the preliminary objection immediately or defer its ruling until after hearing the whole case Such a deferment may be made where it is necessary to hear some or the entire evidence to enable the Court to decide whether the objection raised is dispositive of the suit or not.

JUDGMENT

Introduction:

  1. The appellant sued the respondents jointly and severally for a declaration that two plots of land situated at the junction of Ignatius Latoo Road and Elia Abonga Road at Pece Prison sub-ward, Laroo Division in Gulu Municipality from part of the estate of the late Farajallah Fadulu, an order of vacant possession, a permanent injunction, general damages for trespass to land, mesne profits, interest and costs.
  2. The appellant’s case was that on an unspecified date, the late Farajallah Fadulu bought approximately 21 acres of land from a one Wai Wai where he proceeded to establish his homestead. Subsequently the late Farajallah Fadulu gave one care of that land to his friend, Suleiman Farajallah alias Murefu, father of the 1st respondent. When Suleiman Farajallah alias Murefu married a second wife, the late Farajallah Fadulu gave him an additional half of an acre of his land. Suleiman Farajallah alias Murefu planted Nsambia trees to mark the boundary of the entire one and half acres of land given to him, which trees exists to-date. When Suleiman Farajallah alias Murefu died during the year 1992, the 1st to the 4th appellant remained in occupation of that land. Following the death of his mother, the 1st respondent during or around February, 2015 purported to sell the land now in dispute to the 5th respondent, which land is beyond the boundaries of that which had been given to his late father. On basis of forged documents, the 1st respondent caused a survey of that land during or around the month of April, 2015. The estate of the late Farajallah Fadulu never authorised the survey of that part of the estate property nor sale of the same by the 1st respondent to the 5th respondent.
  3. In their joint written statement of defence, the 1st to the 4th respondents refuted the appellant’s claim. They denied having sold the land to the 5th respondent and claimed that they themselves occupy and cultivate the land as part of the estate of their late father Suleiman Farajallah alias Murefu. Their land is separated from that of the appellant by a line of eucalyptus trees. They prayed that the suit be dismissed. The 5th respondent never filed a defence to the suit and a default judgment was entered against him on

The appellant's evidence in the court below:

  1. P.W.1 Yaya Farajallah testified that the land in dispute belonged to his late father, Farajallah Fadulu. The 1st respondent’s late father, Suleiman Farajallah alias Murefu was the late Farajallah Fadulu’s casual labourer on account of which he gave him a part of his land during the year 1979. The land given to the respondents’ father is to the South of the land now in dispute. Instead of selling part of the land that was given to their late father, the 1st to the 4th respondents had sold part of the land that forms part of the estate of the late Farajallah Fadulu to the 5th respondent. To effect that sale, the 1st respondent had colluded with the appellant’s Secretary, Gabriel Odur, and forged his signature. The respondents have since undertaken activities on that land including cultivation, the moulding of bricks and construction of houses. They have since caused a survey of the land using forged documents. He was in occupation of the land in dispute until the year 2014.
  2. P.W.2 Sheik Musa Khalil testified that he is the appellant’s nephew. He was raised on the land in dispute by his grandfather the late Farajallah Fadulu and therefore knows that it belongs to his estate. The 1st respondent’s late father, Suleiman Farajallah alias Murefu was the late Farajallah Fadulu’s casual labourer on account of which he gave him a part of his land. Instead of selling part of the land that was given to their late father, the 1st to the 4th respondents had sold part of the land that forms part of the estate of the late Farajallah Fadulu to the 5th respondent, without the consent of the family of the late Farajallah Fadulu.
  3. P.W.3 Aluu Rosemary alias Maimuna testified that she is the appellant’s sister-in- law. It was during the year 1950 that she was married into the family of the late Farajallah Fadulu. She was married to the late Mohammed Farajallah Openy, one of the appellant’s brothers. The 1st respondent sold land that belongs to the estate of the late Farajallah Fadulu, and not the one that was given to his late father, Suleiman Farajallah alias Murefu.

The respondent's evidence in the court below:

  1. After cross-examining P.W.1, the then Counsel for the defendants, M/s Ocorobiya & Co. Advocates raised what they described as “a preliminary point of law” and opted not to cross-examine P.W.2 and P.W.3. In their submissions they argued that the appellant had testified that the respondents began using the land in dispute in 1979. Since the appellant admitted that the respondents have been using the land since 1979, a suit filed in 2015 was time barred. In response, counsel for the plaintiff, M/s Komakech-Kilama& Co. Advocates submitted that a preliminary point of law must be raised at conferencing. Trespass to land is a continuing tort and cannot be affected by limitation. He prayed that the objection should be overruled.

Ruling of the court below:

  1. In his ruling delivered on 10th October, 2018, the trial Magistrate found that the appellant had admitted that the land was occupied in 1979. His claim was not for a trespass to land but rather for a declaration that the land forms part of the estate of the late Farajallah Fadulu. The principle that trespass to land is a continuing tort was inapplicable to the facts of the case. The suit was dismissed for being time barred, with costs to the respondents.

The grounds of appeal:

  1. The appellant was dissatisfied with that decision and appealed to this court on the following grounds, namely;
  1. The trial Magistrate erred in law and when he held that the suit was barred by the law of limitation, hence occasioning a miscarriage of justice.
  2. The trial Magistrate erred in law and fact when he dismissed the default judgment against the 5th respondent.

Arguments of Counsel for the appellant:

  1. Counsel for the appellant did not file any submissions.

Arguments of Counsel for the respondents:

  1. Counsel for the respondents, submitted that section 5 of The Limitation Act, bars suits for the recovery of land filed after expiry of 12 years. In his testimony, the appellant stated that the respondent’s encroachment on the land began in 1979. The trial court was therefore correct in its finding that the suit was time barred.

Ground one and two: Limitation and court’s dismissal of the Default Judgment against the 5th Defendant.

  1. The two grounds of appeal will be considered concurrently. A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit (see Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696). It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It is thus based on a commonly accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Preliminary objections relate to points of law, raised at the outset of a case by the defence without going into the merits of the case. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence.
  2. A defendant wishing to rely on points of law as a preliminary issue is required to set out such points of law in the written statement of defence before the preliminary issue is regarded as properly raised. Some of the matters that must be specifically pleaded are mentioned in Order 6 Rule 6 of The Civil Procedure Rules and they include; fraud, the Limitation Act, release, payment, performance, or facts, showing illegality either by statute or common law. These are matters which if not pleaded, are considered as potentially likely take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings.
  3. It is very clear that for one to say that a suit is statute barred is to raise a defence of the statute of limitation. By that rule, a defendant who intends to raise the defence of The Limitation Act or that the suit is statute barred (as in the instant case) must specifically plead that defence. A limitations defence is an affirmative defence and must be pleaded. Once it is not pleaded, the defendant will ordinarily not be granted the protection of that law since the Court cannot grant a defendant the benefit of the limitation law contrary to the rules of pleading and the principle of avoidance of surprise. This is because failure to raise substantive responses to a plaintiff’s claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of The Civil Procedure Rules and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil suit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.
  4. According to Order 6 rule 28 of The Civil Procedure Rules, a point of law that is pleaded which when so raised is capable of disposing of the suit, may then by consent of the parties, or by order of the court on the application of either party, be set down for hearing and disposed of at any time before the hearing. It is always in the interest of justice to such objections on dispositive points of law at the earliest so as to save time and costs and to avoid a trial in nullity. Although an objection based on a point of law can be raised at any time under the inherent jurisdiction of the Court, there is no doubt that a preliminary objection that is not pleaded but is raised orally during the hearing only serves to ambush and prejudice the opposing party. Prejudice arises from the fact that had the defendant raised the issue in his pleadings, the plaintiff might have tried to settle, or even have withdrawn the suit. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for plaintiff might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the acts complained of constitute a continuing tort.
  5. A party seeking to raise a point of law based on disputed facts which, if properly presented and supported by some form of affidavit evidence, may dispose the suit, is obligated to move the court by way of a formal application raising the point of law. The formal application should be duly supported by an appropriate affidavit containing the necessary evidence in support of the point of law. The respondent would then have the opportunity to file a replying affidavit in opposition to the application, if he so desires. The objection in this case was not pleaded and required evidence of disputed facts to be led before it could be established. The only course open to the respondent was therefore to move the court by way of a formal application raising the point of law.
  6. Be that as it may, whether raised by way of formal application or informally at the commencement of the hearing, the Court has discretion to dispose of the preliminary objection immediately or defer its ruling until after hearing the whole case (see The Attorney General v. Major General David Tinyefunza, S. C. Constitutional Appeal No. 1 of 1997). Such a deferment may be made where it is necessary to hear some or the entire evidence to enable the Court to decide whether the objection raised is dispositive of the suit or not. It is a matter of discretion of the Court as regards when to make a ruling on the objection. No hard and fast rule can and should be laid to fetter the Court’s discretion. The exercise of the discretion must depend on the facts and circumstances of each case. The practice though is that where pleadings have been filed and exchanged between the parties to the suit, and the case has proceeded to trial, any points of law raised by the defendant are taken by the Court alongside the evidence and the rulings thereon made after hearing the whole case, as part of the judgment.
  7. That aside, just as the law relating to pleadings should not be construed and applied with undue rigidity and strictness if no prejudice or embarrassment towards fair trial of the suit is caused, a pleading has to be read as a whole to ascertain its true import. Any interpretation that compartmentalises, dissects, segregates and results in inversion of the language of any segment of the pleading ought to be discarded. Parts of the pleading should not be read in isolation but it must instead be read as a whole and construed reasonably.
  8. When the plaint is read as a whole, alongside the evidence from P.W.1, P.W.2 and P.W3, there is no doubt in this case that the acts of the respondents complained of are alleged to have occurred around February, 2015 to April, 2015 when the 1st respondent is alleged to have sold part of the land that forms part of the estate of the late Farajallah Fadulu to the 5th respondent, without the consent of the family of the late Farajallah Fadulu, instead of selling part of the land that was given to their late father as demarcated by Nsambia trees. The 1st to the 4th respondents refute that claim and contend that they are in occupation and have never sold the land in issue to the 5th respondent and that it forms part of the estate of their late father, Suleiman Farajallah alias Murefu. It is separated from that of the appellant by a line of eucalyptus trees. The suit having been filed on 30th June, 2015 within a few months of the sprouting of the dispute, is clearly not time barred.
  9. Overall, where the objection advanced is not pleaded and cannot be disposed of without ascertaining facts, then it is not a matter that befits a “preliminary objection” (see Katabazi and 21 Others v. Secretary General of the East African Community and Another (Ref No. 1 of 2007) [2007] EACJ 3). Clearly in this case Counsel for the respondents’ preliminary point was not based on a commonly accepted set of facts and therefore the pleadings in the instant case could not form the basis of a preliminary objection on a point of law as understood and accepted in our jurisdiction. Consequently, the trial magistrate erred in law in admitting and relying on oral testimony to dispose what was orally presented to the court as a preliminary objection.
  10. The decision of the court below occasioned a miscarriage of justice and resulted in a mistrial.

Order:

  1. In the final result, there is merit in the appeal. The order dismissing the suit as being time barred is hereby set aside. The suit is accordingly re-instated and should be tried by another Magistrate of competent jurisdiction. Each party is to bear their own costs of this appeal.

Delivered electronically this 30th day of October, 2020 ................... Stephen Mubiru...............................................................................................

Stephen Mubiru Resident Judge, Gulu

Appearances

For the appellant : M/s Komakech-Kilama & Co. Advocates.

For the respondents: M/s Ocorobiya & Co. Advocates.