“A preliminary objection may arise from factual omissions or circumstances that render further proceedings unnecessary—not merely from pure questions of law.” Clarifies the High Court at Kabale.

Waboga David
Oct 27
5 min read

Facts

On 27th December 2019, the Plaintiff, Birungyi Cephas Bagyenda, entered into a sale agreement with the 1st Defendant, Kabale Municipal Council, for the purchase of Plot 11–17, Mbarara Road, Kabale Municipality, at a price of UGX 1,000,050,000.

The Plaintiff paid the full purchase price on 29th January 2020, but the 1st Defendant failed to deliver vacant possession and the certificate of title, prompting the Plaintiff to file a suit seeking:

A declaration of breach of contract;
Refund of the purchase price;
General damages;
Interest on damages at 24% per annum;
Interest on the purchase price until full payment; and
UGX 500,000,000 as compensation for reputational harm.

During the pendency of the suit, in April 2024, the 1st Defendant handed over vacant possession and the certificate of title to the Plaintiff. The Plaintiff, however, maintained his claims for damages and other reliefs.

At a preliminary hearing on 10th July 2025, the Defendants raised a preliminary objection, arguing that the suit had been overtaken by events, as the subject matter of the dispute had been resolved.

Issues

Whether the delivery of the certificate of title and vacant possession extinguished the Plaintiff’s cause of action.
Whether the residual claims for damages constitute a separate cause of action that can be maintained independently after the Defendant’s performance.

Legal Representation

For the Plaintiff, Mr. Martin Mbanza Karemera and Mr. Justus Muhangi
For the Defendants, Ms. Kanyago Anna, State Attorney
1st Defendant: Represented by the Deputy Town Clerk, Kabale

Submissions

For the Defendants:

The defendants, represented by Ms. Kanyago Anna, argued that the suit was overtaken by events, rendering no triable issues and making the cause of action untenable. They contended that the plaintiff's admission of receiving the suit land and title eliminated the basis for the suit. Citing Auto Garage v Motokov No.3 [1971] EA 514, they urged dismissal where no cause of action is disclosed. They further referenced Western Uganda Importers & Distributors v Mwebesa [2019] UGHCD 12, where an application to set aside a consent judgment was dismissed post-execution, emphasizing that merits are not determined at the preliminary stage but that factual resolution can moot the suit.

For the Plaintiff:

The plaintiff opposed the objection, asserting that a preliminary objection must be purely on a point of law, not facts. Relying on Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696, they quoted:

"A preliminary objection consists of a point of law which has been pleaded or arises out of pleadings, and which if argued as a preliminary point may dispose of a suit. A preliminary objection cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion."

The plaintiff argued that the objection delved into merits and facts (e.g., the handover), which required evidence. In rejoinder submissions, they conceded the implied obligation to perform within a reasonable time under contract law but maintained that residual damages claims (e.g., reputational harm) survived independently. They noted in the rejoinder:

"Secondly, even absent an express timeline, the law implies an obligation to perform contractual duties within a reasonable time."

They urged the court to invoke Section 17(2) of the Judicature Act, Cap 16, to prevent abuse of process while promoting judicial efficiency.

The court observed that the plaintiff's remaining submissions ventured into the merits, which were not to be resolved at this stage.

Court’s Findings

The court defined a preliminary objection as “an independent objection to the continuance of the main action,” drawing from Hugh Thirlway’s The International Court of Justice (Chapter 14, pp. 167–176):

“A preliminary objection is a formal step by which a respondent raises a question which it contends should be dealt with separately, before any other issue in the proceedings is examined. This is usually, perhaps indeed necessarily, on the basis that that question is preliminary in nature; and that, as a result, its resolution (in the sense contended for by the party raising it) will make examination of the rest of the case unnecessary and inappropriate.”

The court rejected the plaintiff’s narrow view that objections must be purely points of law, noting:

“In short, the argument by the plaintiff that a preliminary objection must be purely on a point of law doesn’t hold water. What would be the fate of a catch-all of objections? A point of law may arise from a factual omission… A better categorization of a preliminary objection is whether it goes to the root of the cause of action or is a diversion from considering the suit on its merits.”

The court categorized common preliminary objections, including “mootness, where a cause of action is moot, and no triable issues no longer exist.” Applying this, it found that the core breach—failure to deliver the title and possession (from 29th January 2020 to April 2024)—had been cured, rendering paragraphs 5(f)–(n) of the plaint untenable. Reliefs such as general damages, refund of the purchase price, and interest thereon were therefore nugatory.

On special damages (interest on the purchase price), the court cited Makubuya v Umeme, Civil Appeal No. 1 of 2019 [2023] UGHC at p. 61, quoting Justice Tibatemwa-Ekirikubinza:

“I am alive to the need for clarity, certainty, and particularity in pleadings. And there is no doubt that laxity in drafting pleadings for a claim of special damages would defeat the purpose of pleadings and take by surprise an opponent who must prepare their defence for every allegation in the plaint.”

The court noted that, while some flexibility exists, evidence of a loan or specific interest rate was absent, converting the claim potentially into one for general damages, which are discretionary. The claim for reputational harm was dismissed as one belonging to an action in libel or defamation.

The court held that the reliefs sought offended Order VII Rule 1(g) and Rule 7 of the Civil Procedure Rules, which require a plaint to specify tenable reliefs, citing Dennis Byrne v Mayur Madhvani and 3 Others (FICT-03-CV-CS-009-2022) per Justice Nabisinde.

On Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the court concluded:

“The fact of failure to deliver a certificate of title and vacant possession by the plaintiff was at the root of the cause of action. Both parties are in agreement as to this basic fact; there is nothing left for the court to decide, and all reliefs sought flow from this allegation.”

Holding

The preliminary objection was upheld.
The court held that the cause of action had been extinguished when the Defendant delivered the title and possession.
The suit was dismissed as overtaken by events, with no order as to costs.

Justice Ssemogerere observed:

“Both parties are in agreement as to this basic fact; there is nothing left for the court to decide, and all reliefs sought flow from this allegation. The preliminary objection is upheld. As the dispute is resolved, no costs are awarded.”

Key Takeaways

Extinguished Cause of Action, Once a defendant fully satisfies the plaintiff’s claim (e.g., by delivering property or fulfilling the contract), the underlying cause of action becomes moot.
A preliminary objection may arise from factual omissions or circumstances that render further proceedings unnecessary, not merely from pure questions of law.
Claims such as special damages or interest must be specifically pleaded and supported by evidence, failing which they are unsustainable.
Plaintiffs whose causes of action are overtaken by events may seek amendment of the plaint to reflect residual or consequential claims, rather than insisting on untenable reliefs.
Practical Lesson for Practitioners
Always assess whether factual developments post-filing (e.g., performance by the defendant) have altered or nullified the cause of action, before insisting on trial.