Aporo v Ondeng & Another (Civil Appeal 44 of 2017) [2023] UGHC 343 (21 February 2023)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF LIRA **HOLDEN AT LIRA** CIVIL APPEAL NO 44 OF 2017 (ARISING FROM CLAIM NO 18 OF 2015) APORO GEORGE GOLDIE.............. $\cdots\cdots\cdots APPELLANT$ **VERSUS**

| 1. MARY ONDENG | | |------------------------|--| | <b>2. ONGENG MOSES</b> | |

#### **JUDGEMENT**

#### **BEFORE:HON. JUSTICE ALEX MACKAY AJIJI**

#### Introduction.

This is an appeal against the judgment and decision of His Worship Hillary Kiwanuka Magistrate Grade 1 delivered on 13<sup>th</sup> /12/2017, in Lira dismissing the appellant's suit on a preliminary objection raised by the respondent pointing that the suit was time barred

#### **Back ground.**

Aporo George Goldie's filed land claim No.018 of 2015 of land situated at Bata Trading Centre, Bata sub-county, Dokolo district formed part of the estate that was bequeathed to the appellant by his father. The appellant, his predecessors, siblings and/ or agents were, at all material times, in ownership, occupation, physical possession and use of the suit land until around 2002 when the defendants trespassed to the suit land started constructing a commercial building on the same. When

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approached by the appellant's agents the respondents alleged to have been allocated the suit land by the committee of Bata Trading centre way back in or around the year 1999. In about 2006 mediation was carried out by the chairman Bata sub-county at the appellant's initiative and subsequently the respondents stopped their trespass on the suit land. The Respondents however resumed their construction in March 2015.

In their defence, Mary Ondeng and Ongeng Moses denied the claim that Aporo George Goldie was not in possession and that the Respondents were in possession of the suit land. He further contended that the suit is barred by limitation and that he agrees with counsel for the appellant that limitation was not pleaded in the pleadings filed by the appellant but the point of contention is that is the suit barred by law of limitation or not

### Grounds of appeal.

- 1. That the learned trial Magistrate erred in law and fact when he ruled that the plaintiff's (now appellant) suit was barred by limitation. - 2. That the learned trial magistrate erred in law and fact when he dismissed the plaintiff's suit with costs.

In his decision, the learned Magistrate found that the suit was time barred

## Duty of the first appellate court.

The duty of the first Appellate court has been reiterated in numerous cases. It is to re-evaluate and re- appraise the evidence on record and come to its own conclusion. Hon. Justice A. Karokora (J. S. C as he then was) in the case of Sanyu Lwanga Musoke versus Sam Galiwanga, SCCA No. 48/1995 held that;

"...it is settled law that a first Appellate Court is under the duty to subject the entire evidence on the record to an exhaustive scrutiny and to re-evaluate and make its

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own conclusion while bearing in mind the fact that the Court never observed the witnesses under cross-examination so as to test their verocity..." See also case of Banco Arabe Espanol Vs Bank of Uganda, SCCA NO.8 OF 1998 Order JSC.

Once I perused the record, I saw Court allowed written submissions. M/s J Adar & co. Advocates filed their submissions and rejoinder for Aporo George Goldie on 23/10/2018 and 23/11/2018 respectively, and Omara & Co. Advocates filed their submissions on $13/11/2018$ .

#### **Resolutions of grounds of appeal.**

#### Ground 1

In his submissions, Counsel for the appellant referred court to the paragraph 1 at page of the judgment, where the learned magistrate *stated that*;

"The cause of action arose in 1999 when the defendants were allocated the suit land"

To the contrary counsel submitted that the cause of action arose in March 2015 three months after which a suit was files.

Citing numerous authorities, he then submitted that this court is faced with two phases of cause of action, one being under paragraph $4(f)$ of the plaint that the cause of action arose in 2002 and 2006 these cause of action ceased after mediation with the Lc111 of Bata sub-county. He further submitted that there is no law that bars parties from attempting to solve matters outside court. He further stated that when the Respondent resumed construction in 2015 as shown in paragraph $4(h)$ of the plaint, the second phase of the cause of action came into play and the appellant instituted this suit. He further submitted that the plaint does not show disability however when you read the plaint as it is, one would point out that indeed there is

one under paragraphs $4(f)$ , $(g)$ , & $(h)$ of the plaint and that the original cause of action is trespass which is a continuing tort which runs from the date of cessation.

Respondent's counsel agreed with counsel for the appellant never pleaded in their plaint that its case was barred by the limitation Act and it certainly never claimed or pleaded Disability and that the appeal is squarely on where the suit was or was not caught by the law of limitation. They submitted that Appellant's pleadings indicated that the Respondents entered upon the suit land in 1999 and they are still in occupation on the date the complaint was filed. Citing authority, they contended that the claim is not continuing tort which is not barred by limitation but rather claim of ownership of land. They maintained what had been presented in the lower court that the suit land belonged to the Respondents. They further submitted that if the appellants claim is trespass, then they are time barred too within 6 years from the date of accruing. They further contented that the appellant the two phases of cause of action stated by counsel of 2002 and 2015 respectively, counsel for the appellant did not define to court whether the appellant took possession between the period when the appellant constructed, and resumed construction.

#### My decision

In summary, Aporo George Goldie stated his claim to be; a declaration that the suit land belongs to him, vacant possession, permanent injunction restraining the defendants and/or their agents from any further trespass on the suit land, general damages, exemplary damages and costs of the suit. In his decision, while there was preliminary objection on limitation, the Magistrate held that the suit was barred by law of limitation and allowed the preliminary objection that dismissed the main suit. I find her decision wrong, and the following are my reasons. I will consider the law first.

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## Section 5 of the Limitation Act Cap 80 provides that

"No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or her..."

In the case of Ababiri Muhamood & Four Ors V Mukomba Anastansia & Another (Civil Suit No. 22 of 2015) [2019] UGHC 16 (15 May 2019) court referred to the case of Hajati Ziribagwa and Anor Vrs. Yakobo Ntate HCCS 102/09 where Justice Byamugisha (as she then was) held that "...since this was an action for recovery of land, the cause of action must have arisen at the date the defendant acquired the land... "By inference, a cause of action relating to land should accrue on the date that the plaintiff claims it was wrongly appropriated. This seems to be supported by Section 11 of the Limitation Act which states that, the right of action in land will not accrue unless there is adverse possession.

# In the case Odyeki & Anor Vs Yokonani & 4 Ors (CIVIL APPEAL No. 0009 OF 2017) [2018] UGHCCD 50 (11 October 2018) it was held that;

"With regard to actions for recovery of land, there is a fixed limitation period stipulated by section 5 of The Limitation Act. This limitation is applicable to all suits in which the claim is for possession of land, based on title or ownership i.e., proprietary title, as distinct from possessory rights".

Furthermore, Section 11 (1) of the same Act provides that;

No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as "adverse possession"), and where under sections 6 to 10, any such right of action is deemed to accrue on a certain date and

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no person is in adverse possession on that date, the right of action shall not be deemed to accrue <u>until adverse possession is taken</u> of the land. (Emphasis added).

According to section 6 of the same Act, "the right of action is deemed to have accrued on the date of the dispossession." Therefore, a cause of action accrues when the act of adverse possession occurs.

In F. X. Miramago v. Attorney General [1979] HCB 24, it was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed. Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run against the plaintiff. One of the important principles of the law of limitation is that once time has begun to run, no subsequent disability or inability to sue stops it. I would emphasize that the claimant may only obtain protection, if they specifically plead disability.

The nature of rights Aporo George Goldie sought to enforce in the suit were of a proprietary, rather than of a possessory nature. Hence this was for all intents and purposes, an action for recovery of land, of which he contended he had been unlawfully deprived by Mary Ongeng and Moses Ongeng. It did not matter that Aporo George Goldie sought an injunction against Mary Ongeng and Moses Ongeng for trespass. The court will consider the essence of the action rather than the nomenclature adopted by the parties. The essence of his claim was recovery of land and not the tort of trespass to land.

As I have stated above, a litigant puts himself or herself within the limitation period by showing the grounds upon which he or she could claim exemption, failure of which the suit is time-barred. The Court cannot grant the remedy or relief sought and must reject the claim. This disability must be pleaded as required by Order 18 rule 13 CPR, which was done in the instant case. It is trite law that a plaint that does not

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plead such disability where the cause of action is barred by limitation, is bad in law. Two major purposes underlie statutes of limitations; protecting defendants from having to defend stale claims by providing notice in time to prepare a fair defence on the merits, and secondly, requiring plaintiffs to diligently pursue their claims. Uninterrupted and uncontested possession of land for a specified period, hostile to the rights and interests of the true owner, is considered to be one of the legally recognized modes of acquisition of ownership of land (see Perry v. Clissold [1907] AC 73, at 79).

In respect of unregistered land, the adverse possessor of land acquires ownership when the right of action to terminate the adverse possession expires, under the concept of "*extinctive prescription*" reflected in sections 5 and 16 Limitation Act. Where a claim of adverse possession succeeds, it has the effect of terminating the title of the original owner of the land (see for example Rwajuma v. Jingo Mukasa, H. C. Civil Suit No. 508 of 2012). As a rule, limitation not only cuts off the owner's right to bring an action for the recovery of the suit land that has been in adverse possession for over twelve years, but also the adverse possessor, is vested with title thereto.

a. R

Section 16 of The Limitation Act provides that at the expiration of the period prescribed by the Act for any person to bring an action to recover land, the title of that person to the land is extinguished. It lays down a rule of substantive law by declaring that after the lapse of the period, the title ceases to exist and not merely the remedy. Thus the Supreme Court in her decision of Masailabu Vs. Simon Mwanga SCCA No. 4/93 (reported in (1994) V KALR 156), found that a defendant who settled on land in 1964 acquired it by adverse possession and a plaintiff filed in 1986 to contest that possession could not succeed.

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Aporo George Goldie stated in his claim under paragraph 4(f) of the plaint that the cause of action arose in 2002 and 2006 these cause of action ceased after mediation with the Lc111 of Bata sub-county. He further submitted that there is no law that bars parties from attempting to solve matters outside court. He further stated that when the Respondent resumed construction in 2015 as shown in paragraph 4(h) of the plaint, the second phase of the cause of action came into play and the appellant instituted this suit. He further submitted that the plaint does not show disability however when you read the plaint as it is, one would point out that indeed there is one under paragraphs $4(f)$ , $(g)$ , & $(h)$ of the plaint and that the original cause of action is trespass which is a continuing tort which runs from the date of cessation. Disability had existed, section 21 (1) (c) of the Limitation Act places the cap at thirty years from the date on which the right of action accrued to that person. I would agree with appellant's counsel that by its pleadings, the suit was not time barred. The court of Appeal in Iga Vrs. Makerere University (197) EA 65 held that a plaint barred by limitation must be rejected.

The trial magistrate was therefore wrong in finding that Respondent could benefit from the statute of limitation. I find that appellant's action in the lower court was not time barred and Respondents did not acquire ownership by adverse possession. It was the duty of the Magistrate to have looked at the pleadings and the claim at the earliest opportunity in the proceedings and on this particular one I don't see under Order 7 rr 11(d) CPR applying that the plaint ought to be rejected, where the suit appears from the statement in the plaint, to be barred by limitation.

Accordingly the first ground succeeds.

Ground 2 That the learned trial magistrate erred in law and fact when he dismissed the plaintiff's suit with costs.

In my view, the first ground would dispose of the appeal. There is no necessity for me to consider the second ground.

In conclusion, this appeal succeeds and Aporo George Goldie the appellant shall have the costs of the appeal.

I so order

Dated and delivered in Lira this ....................................

Jorssmi

### **ALEX MACKAY AJIJI**

**JUDGE**

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