Abaho v Kirwana (Civil Miscellaneous Application 262 of 2023) [2024] UGHC 504 (15 May 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI **MISCELLANEOUS APPLICATION NO. 262 OF 2023**

## (Arising from Civil Suit No. 32 of 2022)

#### **AMOS ABAHO** $\mathsf{S}$

(Claiming as a beneficiary of the.................................... estate of the late William Kahinza)

### **VERSUS**

### KIRWANA SOŻI JUSTINE

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(Executor of the Will of .................................. $10$ the late Mikairi Mukasa)

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Ruling

- The applicant brought the instant application by way of Notice of Motion under 15 Order 6 Rules 28, 29 and 30, Order 7 Rule 11 (a), and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act against the respondent seeking orders that; - a. The main suit vide No. 32 of 2022 is barred by limitation of time and the doctrine of latches. - b. The suit is barred and incompetent for under declaring the value of the suit land. - c. The suit does not disclose a cause of action against the applicant. - d. The suit is frivolous, vexatious and an abuse of the court process. - e. That the caveat lodged by the respondent on the suit land comprised in Gomba Block 29 Plot 6 should be vacated. - f. That this honourable court grants a consequential order that the applicant is entitled to retain vacant possession of the suit land. - g. That civil suit No. 32 of 2022 be dismissed and or struck out with costs. - h. The applicant be granted costs of the application.

The application is supported by an affidavit sworn by Deborah Irene Nannyonjo, an advocate and the grounds briefly are that;

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- 1. The respondent filed a suit vide Civil Suit No. 32 of 2022 against the applicant which is pending disposal in this honourable court. - 2. The suit does not disclose a cause of action against the applicant who is not the registered proprietor of the suit land and was sued in his capacity as a beneficiary to the estate of the late William Kahinza. - 3. The suit is barred by limitation for having been filed 20 years later from the time the late William Kahinza obtained title and was registered on the suit land. - 4. The suit is barred by the doctrine of latches as the applicant and the larger family of the late William Kahinza have adverse possession of the suit land and are entitled to retain vacant possession. - 5. The respondent's suit is barred by law and incompetent for under declaring the value of the suit land which measures 128 acres to be valued at UGX $60,000,000/$ = (Sixty Million Uganda Shillings only). - 6. The suit is frivolous, vexatious and an abuse of the court process. - 7. The respondent who has no equitable interest in the suit land lodged a caveat on it which ought to be vacated. - 8. That it is in the interest of justice that this application is allowed and the suit is dismissed and or struck off the record with costs to the applicants. - The application is opposed through an affidavit sworn by the respondent whereof $20$ he states that he got to know about the fraud that was occasioned by William Kahinza in 2020 when he became an administrator of the estate of his father. That his father who died in the 1980s could not have signed transfer forms in 2001 when the suit land was registered. That the respondent has a cause of action against - the applicant that is based on land fraud. $25$

Brief background:

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The respondent filed a civil suit against the applicant and the Commissioner of Land Registration for declarations that their acts amount to land fraud, that acts of the late William Kahinza amount to land fraud, an order to the 2<sup>nd</sup> Defendant to cancel the name of the late William Kahinza off the certificate of title comprised

- in Gomba Block 29 Plot 6 land at Lugulusu, an order to the 2<sup>nd</sup> defendant to vacate the caveat filed by the applicant on the certificate of title to the land comprised in Gomba Block 29 Plot 6 land at Lugulusu, general damages, mesne profits and costs of the suit. - The suit land was on the O6<sup>th</sup> December, 2001 registered in the name of the late 35 William Kahinza.

The applicant denied all the contents of the plaint and indicated that he intended to raise preliminary objections. Hence, the instant application, where the applicant

in a bid to have Civil Suit No. 32 of 2022 dismissed or struck out raised preliminary objections to wit;

- a. That the suit is barred by limitation and the doctrine of latches. - b. That the suit does not disclose a cause of action against the applicant. - c. That the suit is frivolous, vexatious and an abuse of the court process and for consequential orders that; - The caveat lodged by the respondent on the suit land be vacated. - That the $1^{st}$ applicant is entitled to retain vacant possession of the suit $\bullet$ land.

#### $10$ Representation:

M/s Sabiiti & Co. Advocates represented the applicant while Lillian K appeared for the 1<sup>st</sup> respondent while Godwin Atusasire appeared for the 2<sup>nd</sup> defendant. Only the applicant and the respondent in the instant case filed written submissions.

### Resolution:

#### a. That the suit is barred by limitation and the doctrine of latches. 15

Counsel for the applicant submitted that the suit land was registered in 2001 as such the suit is barred by limitation according to Section 20 of the Limitation Act. That the respondent's right accrued immediately Mikaeri Mukasa died. However, the date of death is not known which means that the respondent deliberately omitted it since the suit was brought out of time. That the late Mikaeri was deregistered in 2001 and the respondent cannot claim to have known about this in 2020 when he obtained Letters of Administration to the estate. That the family of William Kahinza have been on the land for over 20 years giving them adverse possession of the same. (See: Jandu v. Kirpal & Another [1975] E. A 225 at 323).

Further, that the suit is barred by the doctrine of latches which provides for $25$ enforcement of equitable rights without unreasonable delay. (See: Henry Wabui & Another v. Rogers Hanns Kiyonga Ddungu & 2 Others, H. C. C. S No. 102 of 2009).

Counsel for the respondent on the other hand quoted Sections 15 and 25 (a) of the Limitation Act and submitted that time does not start to run as against an administrator/executor until they obtain a grant. That where an action would otherwise be barred by limitation and the action is based on fraud, the time does not begin to run until the plaintiff has discovered the fraud.

Counsel went on to submit that upon obtaining Letters of Administration in 2020, he went ahead and conducted a search on the land register and found that the late

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William Kahinza had registered himself on the Certificate of Title and that was when he sued for fraud.

Counsel added that the applicant claiming to have stayed on the suit land for over 20 years after his father had obtained the title may not be in dispute however, there are exceptions to limitation among which there is fraud. That the applicant can therefore not claim to be an adverse possessor. And the fraud was discovered in 2020.

I have carefully considered the submissions of both parties in regard to this preliminary objection. It is true that the in cases where there is fraud that the time starts to run when the fraud is allegedly discovered as per the provisions of **Section** 25 of the Limitation Act and in the instant case it would be in 2020. In the case of Sufi Murisho Jamil and 2 Others v. Abed Hussein, Civil Appeal No.044 of 2017, it was observed that:

> "It is further provided in Section 25 (a) (b) & (c) Limitation Act that where a case is based on fraud, the limitation period shall not begin to run until the plaintiff has discovered the fraud or could have with reasonable diligence discovered it. There is a rider under Section 25 (d) that interests of those that purchased bona fide with no notice or being party to the fraud, are protected against actions of recovery of land".

The applicant also claimed adverse possession. Adverse possession has been 20 defined according to the case of Jandu v. Kirpal & Another, [1975] E. A 225 at 323, while adopting the definition in the case of Bejoy Chundra v. Kally Posonno $[1878]$ 4, Cal.327 at p. 329; as;

"By adverse possession I understand to be meant possession by a person holding the land on his own behalf, (or on behalf) of some person other than the true owner, the true owner having immediate possession. If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner."

- It is my considered view that the definition above is similarly captured under 30 Section 16 of the Limitation Act which is to the effect that at the expiration of the period of twelve years prescribed under Section 5 of the same Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished. - In the case of AIR 2008 SC 346 Annakili v. A. Vedanayagam & Others, the Supreme 35 Court of India gave the essential elements of adverse possession as below;"

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"Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now settled principle of law that that mere possession of land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the prescribed period under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title."

Thus, a person dispossessed of land cannot therefore bring an action for recovery land after the expiration of twelve years from the date on which the right of action accrued; which is the date of dispossession. (See: Section 5 of the Limitation Act).

Secondly; after the expiration of the said twelve years the title of the registered owner shall be extinguished. (See: Section 16 of the Limitation Act and the case of Masailabu v. Simon Mwanga, S. C. C. A No. 4/93 (reported in (1994) V KALR 156, where it was observed that a defendant who settled on land in 1964 acquired it by adverse possession and a plaintiff who filed in 1986 to contest that possession could not succeed).

Thirdly; the person in adverse possession is entitled to a title by possession. And Section 29 of the Limitation Act provides that the registered owner ceases to hold the title to land in his own right but in trust of one in adverse possession.

- The applicant's father in the instant case was registered on the Certificate of title $25$ in 2001 and is still the registered proprietor of the suit land. The late Mikaeri William had also been registered on the certificate of title in 2001. - It is my considered view that adverse possession is not applicable in the instant case. The applicant has not satisfied the preconditions for adverse possession. The applicant claims to derive his interest from the current registered proprietor of the 30 suit land who is his late father. Adverse possession can only come into play if one has been in occupation of registered land for a period of over 12 years unchallenged by the registered proprietor which is not the case in the instant matter. - 35 This preliminary objection is hereby overruled.

# b. The suit does not disclose a cause of action against the applicant.

counsel for the applicant submitted that whereas the respondent may actually have an interest in the suit land, the applicant against whom the suit is brought is not

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the registered proprietor of the same nor is he an administrator. That the fraudulent acts referred to by the respondent are acts that were committed by the applicant's father and not the applicant.

Counsel for the respondent on the other hand submitted that the respondent in the plaint stresses that the land belonged to his late grandfather which was still on a $\mathsf{S}$ blue print before his death in 1980. That the respondent brought the suit against the applicant for recovery of land and vacant possession and that the applicant admits that he and his family are in possession of the suit land. Thus, the applicant cannot claim that the respondent has no cause of action against him while he occupies the suit land that was fraudulently acquired by his father. $10$

Further that the applicant also prayed for vacant possession of the suit and vacation of the caveat. Counsel cited Section 77 of the Registration of Titles Act which provides that; any certificate of title, entry, removal of incumbrance, or cancellation, in the register book, procured or made by fraud, shall be void as against all parties or privies to the fraud. That going by the caveat lodged by the 15 applicant on the 6<sup>th</sup> of June, 2017, the applicant indicates that his claim is founded on his being a beneficiary of the estate of the late William Kahinza. That, the applicant cannot therefore claim to not be liable in an action for vacant possession.

It is trite that to determine whether the plaint discloses a cause of action against the defendant, court has to look at only the plaint and its annextures. The Court of 20 Appeal in the case Kapeka Coffee Works Ltd V NPART, C. A. C. A No.3/ 2000, held that; in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annexures if any and nowhere else.

Under Order 7 Rule 11(a) of the Civil Procedure Rules, a plaint may be rejected by the court if it does not disclose a cause of action. A cause action is said to exist if $\overline{2}$ the plaint shows that the plaintiff enjoyed a right; that the right has been violated: and that the defendant is liable. If the three elements are present, a cause of action is disclosed and any defect or omission can be put right by amendment. (See: Tororo Cement Co Ltd V Frokina International Ltd Civil Appeal No. 2/2001).

In the instant case the respondent is the administrator of the estate of Mikaeri 30 Mukasa and states that he discovered in 2020 that the suit land had been registered in the name of William Kahinza. That when he went to survey the suit land, he found the applicant in occupation of the suit land as a son and beneficiary of William Kahinzza. The applicant was also found to have lodged a caveat on the suit land in 2017. 35

It is my considered view that the plaint discloses a cause of action against the applicant. The same applicant is the one who lodged a caveat on the suit land and not anyone from his family.

This preliminary objection is hereby overruled.

## c. The relief claimed is undervalued.

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Counsel for the applicant submitted that the suit land is way over UGX 100,000,000/= and not UGX 60,000,000/= as stated by the respondent as such the plaint should be rejected for being in contravention of Order 7 Rule 11(b) of the Civil Procedure Rules.

Counsel for the respondent on the other submitted that the value of the subject matter was estimated to be above UGX 60,000,000/= for purposes of bringing the suit within the jurisdiction of this court. That in the instant matter what is in contention is not in terms of its value. Counsel prayed that in the event that court finds that the subject matter was undervalued, the respondent be allowed to pay

- additional court fees as has been the practice. (see: Pinnacle Projects v. Business in Motion). The applicant is the instant case contended that the suit land was undervalued - however, provided no valuation report to substantiated on this submission. I am $15$ therefore, unable to determine the value of the suit land with no valuation report provided. As, such I am unable to tell if the value of the suit was undervalued or overvalued.

I accordingly overrule this preliminary objection.

#### d. The suit is frivolous and vexatious 20

Counsel for the applicant submitted that the plaint does not support the respondent's claim that the applicant was responsible for the purported fraudulent transfer of the title from the names of Mikaeri Mukasa to William Kahinza. That the respondent's Letters of Administration are of no evidential value. That the suit has no legal basis or merit. $25$

"Frivolous" connotes the absence of seriousness or the lack of validity or legitimacy. A frivolous pleading would also be vexatious in that its effect would be counterproductive. (See: Re Singapore Souvenir Industry (Pte) Ltd [1985-1986] SLR(R) 161).

- A matter is said to be "Vexatious" when it is oppressive to the opposing party and 30 it obstructs the court from gaining a full understanding of the issues and a party acts with an ulterior motive. The action is vexatious if the party bringing it is not acting bona fide and merely wishes to annoy or embarrass the opponent or when it is not calculated to lead to any practical result. (See: Lehman Brothers Special - Financing Inc v Hartadi Angkosubroto [1998] 3 SLR(R) 664: Goh Koon Suan v 35 Heng Gek Kiau [1990] SLR(R) 750).

The applicant in the instant case is the one who was found on the suit land and is the same person who lodged a caveat on the suit land in 2017. The applicant has not proved to this court how the suit as brought by the respondent is frivolous and vexatious. I accordingly find that the suit is not frivolous and vexatious. This preliminary objection is also overruled.

e. vacant possession.

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counsel reiterated that the applicant's family has been on the suit land for over 20 years being adverse possessors and are therefore entitled to vacant possession.

As discussed above, the applicant cannot claim adverse possession in the instant case. I find this preliminary objection misplaced, it is accordingly overruled. $10$

f. caveat lodged by the respondent be vacated.

It was submitted for the applicant that since the respondent lacks a cause of action against the applicant and the suit is frivolous and vexatious, the caveated should be vacated.

As already discussed above, the respondent was found with a cause of action, the 15 suit is not frivolous and vexatious. As such a prayer for the caveat on the suit to be vacated is premature in my view.

This preliminary objection is also overruled.

In conclusion, all the preliminary objections as raised by the applicant in the instant application are overruled. The application is found lacking in merit and is 20 hereby dismissed with costs. Let the main suit be fixed for hearing on the nearest available date.

I so order.

Right of appeal explained.

$25$ OYUKO ANTHONY OJOK JUDGE $15/5/2024$