Kiggundu and Others v Ndagano (MISCELLANEOUS APPLICATION NO.3538 OF 2023) [2025] UGHC 164 (31 January 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 3538 OF 2023 (ARISING FROM CS NO. 1185 OF 2023)

1. KIGGUNDU WILLIAM CHARLES

2. HENRY SSALI

3. BAZANYE LIVINGSTONE

4. NABAYINDA RUTH ::::::::::::::::::::::::::::::::::::

VERSES

NDAGANO LETICIA :::::::::::::::::::::::::::::::::::

BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

RULING

The Applicants moved this court under the provisions of Order 6 rule 10, 30 and 31; Order 52 rules 1 and 2 of the Civil Procedure Rules S. I 71-1; Section 98 of the Civil Procedure Act Cap 282; and Section 33 of the Judicature Act Cap 16, seeking the following reliefs: -

- a. The Respondent's written statement of defence filed on the 1^st November, 2023 in Civil Suit No. 1185 of 2023 be struck out for offending Order 6 rules 8, 10 and 30 of the Civil Procedure Rules. - b. That Judgment be entered against the Respondents/3^rd Defendant for declarations and orders sought. - c. The costs of the Application be provided to the Applicants.

The grounds of the application are supported by the affidavit sworn to by the 1^st Applicant (Kiggundu William Charles) with authority from the 2^nd, 3^rd and 4^th Applicants. He avers that the Applicants filed CS No. 1185 of 2023 against the Respondent, as 3^rd Defendant, and others wherein they sought for cancellation of sale and transfer of Instrument No. WAK-00127355 dated 22/5/2017, which was illegally used to enter the name of the 2^nd Defendant as owner of land comprised in Busiro Block 543-544 Plots 463, 464 (651, 652, 653), and 465 formerly Plot 15 at Lugo (hereinafter referred to as the suit land) from the 2^nd Defendant; an order for

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cancellation of all illegal subdivisions created by and in the names of the Respondent/3^rd Defendant under instrument No. WAK- 00127355 and WAK-00136563 by the Commissioner Land Registration among others.

That the Respondent in her written statement of defence did not deny any of the allegations made by the Applicants but instead made general denials. That the written statement of defence containing general denials offends the Civil Procedure Rules, and ought to be struck out and judgment entered against the Respondent.

Although the Respondent was served through M/s CCAKS Advocates as seen in the affidavit of service deposed to by Mr. Kambamu Ben and dated 20/03/2024, she did not file her affidavit in reply.

It is trite law that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party; and if he or she does not, they are presumed to have been accepted (Samwiri Massa versus Rose Achen [1978] HCB 297; Makerere University Vs St. Mark Education Institute Ltd & Ors (1994) KALR 26). Therefore, the Applicants' averments in the affidavit are hereby presumed as accepted by the Respondent.

Be that as it may, I shall still subject the presumably accepted averments to determination of whether they pass the test of cogency, as it was observed by Kania J in Tororo District Administration vs Andalalapo Ltd (1997) IV KALR 126.

Representation; the Applicants were represented by M/s DAB Advocates who filed written submissions, which have been considered in this ruling.

Issues for determination;

The Applicants' Counsel raised two issues for determination, to wit; -

- 1. Whether the written statement of defence filed by the Defendant/Respondent offends Order 6 Rules 8, 10 and 30 of the Civil Procedure Rules? - 2. What are the remedies available?

Counsel for the Applicant cited Order 6 rule 8, 10 and 30(1) of the Civil Procedure Rules and argued that it is mandatory for a defendant to specifically deny the claims of the Plaintiffs in their written statement of defence, which the Respondent did not do in this case. That under paragraphs 4, 6, 7 and 8 of the

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written statement of defence, the Respondent made evasive denials, without replying to the contents of the claim specifically. That the responses should be intelligible, clear and precise, and give an answer to an allegation by the claimant. Further, that a general or evasive denial renders the defence incurably defective and liable to be struck out, and that not even Article 126 (2) (e) of the Constitution can save.

He also cited Order 13 rule 6 of the Civil Procedure Rules which provides that, "*any* party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties...." He argued that the Respondent ought to have given her response but choose to admit to all claims; and prayed that this court should enter judgment on admission of the claims and prayers in both the plaint and the notice of motion.

In support of his prayer, Counsel relied on Messrs Equator Touring Service Ltd Vs City Council of Kampala Misc. Application No. 406/2013, Central Electrical International Ltd Vs Eastern Builder & Engineers MA No. 176/2008, Excel Constructions Ltd Vs AG HCCS No. 3007 and John Peter Nazareth Vs Barclays Bank International Ltd E. A. C. A 39 of 1976 (UR) where it was observed that "for judgment to be entered on admission, such an admission must be explicit and not open to doubt. Apart from the foregoing, once an admission of facts is made, court may upon application make such order or file such judgment".

In determining the issues, it is necessary to examine the Respondent's written statements of defence against the plaint to establish, if it contains general and evasive denials as alleged by the Applicants. That said, the record, (ECCMS: Electronic Court Case Management System), shows that the Respondent first filed a written statement of defence on 27/10/2023 at 11:30 am through M/s CCAKS Advocates; and filed another one, jointly with the 4^th defendant (Sebuza Douglas), on the 1^st November 2023 through M/s Mukiibi Kyeyune Advocates.

According to the application, the written statement of defence sought to be struck out and judgment entered in favour of the Applicants is one filed on $27/10/2023$ .

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It is unclear, if the Applicants took account of the one filed 1^st November, 2023, before filing the instant application on $20/11/2023$ . What is evident is that the application was only served on Respondent's Advocates of M/s CCAKS Advocates; and not M/s Mukiibi Kyeyune Advocates, who filed the latter defence.

Article 28(1) and 44(c) of the Constitution of the Republic of Uganda, 1995, guarantees a right to a fair hearing. That right includes the right to legal representation (Ssejemba Israel vs Attorney General Constitutional Petition No. 037 of 2014).

In this case, the Respondent Ndagano instructed not only M/s CCAKS Advocates but also M/s Mukiibi Kyeyune Advocates as her legal representatives, as far as the record is concerned. Considering that the latter Advocates filed a defence as well on her behalf; in addition to the nature of the application, the fact that it is unopposed, and was only served on M/s CCAKS per the affidavit of service by Kambamu Ben dated 20^th March 2024, I am hesitant to proceed on it until it is served on $M/s$ Mukiibi Kyeyune Advocates as well. This is aimed at avoiding any likely multiplicity of proceedings. Therefore, the application is hereby stayed; and the Applicants directed to serve it, together with a hearing notice, on M/s Mukiibi Kyeyune Advocates within 14 days hereof. The application shall automatically be dismissed upon failure to do so.

Signed, dated and delivered at Kampala this. 31 day of January 2025.

Nabakooza Havia. K Judge