Bubangizi & Another v Mugisha (Miscellaneous Application 10 of 2023) [2023] UGHC 434 (15 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT RUKUNGIRI MISCELLANEOUS APPLICATION NO.010/2023** (ARISING FROM CIVIL SUIT NO.01/2022)

1. BUBANGIZI OBADIA KAINO

2. AGABA NABOTH MAKANA::::::::::::::::::::::::::::::::::

#### **VERSUS**

JOY MUGISHA::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE

## **RULING**

The applicants filed the instant application under Section 7, 8 and 98 of the Civil Procedure Act, Cap.71, Section 33 of the Judicature Act, Order 6 Rule 28 and Order 52 Rules 1 & 2 of the Civil Procedure Rules, S. I $71-1$ for:

- 1. A declaration that civil suit no.01/2022 is resjudicata and is barred by statute of limitation; abuse of court process and is frivolous and vexatious; - 2. An order that civil suit no.01 be struck out and dismissed; - 3. An order that the respondent bears costs of the suit and this application.

The grounds of the application are contained in the affidavit of Mubangizi Obadia Kaino, 1st applicant and briefly they are summarized that:

- a) Civil Suit No.01/2022 is fundamentally defective and barred by statute. - b) Civil Suit No.01/2022 is resjudicata having been litigated in Rukungiri Chief Magistrates Court vide C. S No.21/2019 then a Revision cause No.004/2019 at Kabale High Court, which quashed the decision of the Chief Magistrate for want of jurisdiction. - c) That the third time, the matter in the instant plaint was litigated upon at the High Court, Kabale vide C. S No.26/2019 and in all the suits the claim was in respect of the estate of late Enock Kaino who died on 20th May 1999.

The application is supported by the affidavit of Mubangizi Obadia Kaino, the 1st applicant and the grounds are that:

- 1. The 1st applicant is the son and heir of late Enock Kaino who died on 15th May 1998 and the respondent is his sister and daughter of late Enock Kaino; - 2. When his father died he applied for and was granted letters of administration in respect of the estate of late Enock Kaino on 23rd April 1999 in the Chief Magistrate's Court Rukungiri;

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- 3. The estate was completely distributed to the beneficiaries including the respondent according to the wishes of late Enock Kaino in his will; - 4. The letters of administration was granted on 23rd April, 1999 without any objections until the filing of Civil Suit No.21/2019 and several other suits that followed: - 5. The second time the matter on the instant plaint was litigated upon was in Kabale High Court, vide Revision Cause No.004/2019 in which the applicants herein successfully challenged the ruling and orders of the Chief Magistrate vide C. S No.21/2019; - 6. The third time the matters in the instant plaint were filed in Kabale High Court, vide C. S No.26/2019 by his sisters Tumuhairwe Eva and Nyabaishiki Jesicca and the same was dismissed for being time barred; and - 7. The issues raised by the respondent in C. S No.01/2022 were tried, heard and determined by the courts of law and the instant suit is unnecessary and a blatant abuse of court process.

The respondent Joy Mugisha filed her affidavit in opposition to the effect that:

- 1. She is the respondent in the instant application; - 2. She never filed or authorize any person to file any suit on her behalf; - She had never been aware of C. S No.21/2019 and C. S No.26/2019 and she was never part of it; - 4. The issue she raised in C. S No.01/2022 have never been heard, tried and or determined by any court between her and the applicants; - 5. The suit is not time bared since the cause of action arose in 2019 when the 1st applicant sold the suit land to the $2^{nd}$ applicant; - 6. She was never aware of the 1st applicant being granted letters of administration for the estate of her late father until 2019 when the 1st applicant sold the suit land to the 2nd applicant; - 7. She is not re-litigating any matter since there has never been a suit between her and the applicants in any court at all; - 8. She paid all the requisite filing fees; and - 9. The suit is neither time bared nor resjudicata at all.

The background of this application is that the applicants herein were jointly sued by one Tumuheirwe Eva (sister to the 1st applicant herein) vide C. S No.21/2019. In the suit, the 1st applicant filed for Revision vide Revision Cause No.004/2019 challenging the pecuniary jurisdiction of the Chief Magistrate in entertaining the said C. S No.21/2019 and two Miscellaneous applications No.10/2019 and No.81/2019 arising from the said suit. Justice Moses Kazibwe Kawumi, by then presiding over the revision application in Kabale in his ruling dated 5th September, 2019 allowed the application and quashed the decision of the Chief Magistrate for want of pecuniary jurisdiction which was over 50,000,000 Ug.shs and set aside the ruling in Misc. Applications No.10 & 81 of 2019. The Judge then advised the respondent (Tumuheirwe Eva) to file a fresh suit subject to limitation before an appropriate court.

Following the advice, Tumuheirwe Eva joined by one Nyabaishiki Jesica, who is also her sister as well to the 1st applicant and the respondent herein, filed C. S No.26/2019 against the respondents herein. In that suit, the plaintiffs (Tumuheirwe Eva and Nyabaishiki Jesica) claimed that the duo, together with the 1st

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applicant herein were the children of late Enock Kaino who died on 20th May, 1998. They contended that the 1st applicant on 23rd April, 1999 fraudulently and without knowledge of the family secured letters of administration to the estate which he never distributed.

At the hearing of this application, the Applicants were represented by M/S Birungi, Barata & Associates while the Respondent was represented by M/S Ahimbisibwe & Agaba Co. Advocaates.

# SUBMISSIONS FOR THE APPLICANTS

a) Limitation of time.

On the point of limitation, Counsel for the applicants relied on section 5, 6 (2) and 20 of the Limitation Act, cap 80 to the effect that any claim in respect of the personal estate of a deceased person or to any share or interest thereon must be filed within 12 years from the date on which the right to a share or interest accrued. It was further submitted that in determining preliminary objection Court must only look at the pleadings only to determine if the suit barred by any law and no evidence is required. It was his submission that late Enock Kaino on whose estate the respondent/plaintiff brings the claim as a beneficiary, died on 28th May, 1998 and the same is pleaded and undisputed. He further submitted for the applicants that it also pleaded and not disputed that letters of administration and probate were issued to the 1st defendant/1st applicant in April 1999. That Civil Suit No.02/2022 was commenced on 7th September, 2022, over 21 years after the death of late Enock Kaino. He submitted that the cause of action arose upon the time of death of late Enock Kaino that is on 28th May, 1998. He referred court to the case of Nwoya District Local Government Council VS John Paul Onyee C. A No.031/2019 and Susan Komuhangi & ors vs Francis Ngabirano HC No.04/2013.

It was further submitted that the respondent/plaintiff is seeking recovery of land described as "block 1633, 1634, 1559 and 1560 situated at Nyakinengo, Kigaaga, Nyakagyeme, Rukungiri District" which the respondent claims to have been part of the estate of late Enock Kaino at the time of his death in May, 1998. Counsel for the applicants also submitted that the respondent/plaintiff's locus standi to bring this suit stems from their claim to being beneficiaries to the estate of late Enock Kaino which comprised of the land described as "block 1633, 1634, 1559 and 1560 situated at Nyakinengo, Kigaaga, Nyakagyeme, Rukungiri District" as such it puts the respondent within the ambit of the Limitation Act relating to recovery of land and claims to estates of the deceased persons.

b) Resjudicata.

On resjudicata, it was submitted for the applicants that Civil Suit No.01/2022 is identical and on all fours with matters determined by the High Court at Kabale in Civil Suit No.26/2019. That the parties in both suits are substantially the same as the suit is brought in the capacity of apparent beneficiary. Counsel for the applicants referred to Section 7, explanation 6 of the Civil Procedure Act. He further submitted that there was final determination in as far as the previous decision in Civil Suit No.26/2019 is concerned. He referred to General Industries (U) Limited VS Npart & 3 ors C. A No.51/2007 to substantiate his submission.

c) Frivolous, vexatious and abuse of Court process

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As to whether the suit is frivolous, vexatious and an abuse of court process, it was submitted for the applicants that the matter and issue in HCCS No.01/2022 having been determined and concluded in various other claims by a Court of competent jurisdiction prior to the instant action, the respondent/plaintiff's insistence on presenting such continuous and multiple cases on the same matter constitutes abuse of court process. Counsel for the applicants referred to Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 ors, C. A No.25/2002 (2009) KLR 229.

Counsel for the applicants finally prayed that court upholds the preliminary objections and dismisses Civil Suit No.01/2022 with costs.

# RESPONDENTS SUBMISSION

#### a) Preliminary objection

In reply it was submitted for the respondent that the application is defective and should be struck out with costs. To substantiate his argument, counsel submitted for the respondent that the applicants filed this application yet only supported only by the affidavit of the 1st applicant alone without any authority from the second applicant. He cited order 1 rule 12 (1) & (2) CPR to the effect that the 2nd applicant ought to have given his authority. He also referred to the case of Joy Kaingana vs Dobo Boubon to the effect that to sue one must possess power of attorney, be an advocate or person authorized. He also referred to Misc. apln No.184/2014 kaheru Osbert & 2 ors vs Nyanga Kweijuka SACCO on the same principle. He prayed that the application should be struck out as S.98 CPA and Article 126 (2) (e) of the Constitution could not apply.

#### b) Resjudicata.

On resjudicata, Counsel for the respondent further submitted that the respondent/plaintiff was not a party to the prior suit as such resjudicata does not apply to her. He referred to the rulings of the lower Court which did not show the plaintiff/Respondent as a party and paragraphs 4,5,6,7 &8 of the affidavit in reply.

#### c) Limitation.

In respect of limitation, counsel submitted that the cause of action arose in 2019 when the 1st applicant sold to the 2nd applicant. That the plaintiff is not challenging the distribution but rather letters of administration for cancellation. He also submitted that the interpretation of Section 7 of the CPA is that it applies when one brings suit on behalf of another person who had filed and that the respondent's claim is not in respect of the others who were in Court before.

Counsel for the Respondent challenged the grant of the letters of administration by the Grade II Magistrate who according to him had no jurisdiction. He referred to the case of Sanua Kabega Teddy& anor vs Andrew Bbale Kabega CS No.150/2011 where according to him; Justice Masalu Musene held that Grade II Court had no jurisdiction under section 2 (d) of the Succession Act. He further submitted that a decision made by a Court without jurisdiction and subsequent proceedings are null and void. That the person selling property had no authority because the letters of administration was a nullity.

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d) Frivolous, vexatious and abuse of Court process.

On whether the suit is filed in abuse of court process, counsel for the respondent submitted that the respondent is a beneficiary claiming in her rights and was not a party to the earlier suits and as such her claim is bonafide and genuine and can not be determined in a preliminary objection.

#### DECISION OF THE COURT

Before addressing the merits of this application, I will address a number of issues raised by counsel for the respondent as points of law to the effect that the application is incompetent and should be struck out with costs.

#### Preliminary objection.

Firstly, with due respect to counsel for the respondent the instant application is in respect of point of law which may or may not be supported by an affidavit. Affidavits are the only pieces of evidence in applications as this one. It is not disputed that both applicants were sued by the respondent in Civil Suit No.01/2022. Besides, an affidavit may be deponed by one knowledgeable with the facts and even if the application is to be struck out in respect of the 2nd applicant, whose affidavit was not filed, the application would still remain supported by the affidavit of the 1st applicant or better still it could still proceed unsupported by an affidavit on its merit. This is so because points of objection are of pure points of law which do not require evidence to support them. Court in such cases needs to look at only the pleadings in the current suit and that of the prior suits and judgments/rulings of the prior courts reflecting the same, with the pleadings in the current suit. Therefore, with or without the affidavit of the 2nd applicant the application still stands.

Secondly, with due respect to Counsel for the respondent, the matter before court in C. S No.01/2022 is not in respect of the grant of letters of administration but rather a claim for recovery of land and a share in the estate of the deceased person for which the grant of letters of administration is being challenged among other prayers sought therein.

Thirdly, the question of validity of the letters of administration is a question not only of law but rather questions of mixed law and facts, which require going into the merit of the current suit and the prior suits. The application at hand challenges the instant Suit No.01/2022, for being time barred, resjudicata and abuse of process. These are pure points of law which do not go into the merit of the case. Court can actually decide it by only looking at the pleadings and the decisions made in the prior court (s) and looking no further. What the learned counsel for the respondent is trying to ask court to do is to go to the merit of the case and distract court from the real issues at hand which is about recovery of land and share of property of a deceased person. I find no merit in the preliminary objection and overrule it.

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#### Issues for determination by the Court.

- 1. Whether Civil Suit No.01/2022 is barred by limitation? - 2. Whether civil suit No.01/2022 is resjudicata? - 3. Whether Civil suit No.01/2022 is frivolous, vexatious and abuse of court process? and - 4. What remedies are available to the parties?

# Issue No.1: Whether Civil Suit No.01/2022 is barred by limitation?

Section 5 of the Limitation Act, Cap.80 provides

"no action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him/her or, if it first accrued to some person whom he or she claims, to that person."

The effect of the foregoing is that it extinguishes the right of one to bring an action to recover land in his/her own right after the lapse of 12 years from the time when the cause of action arose or if the cause of action accrued to some other person prior and the current person derives the claims from that person (emphasis mine).

Section 19(1) of the Limitation Act, Cap.80 provides

"No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—

(a) In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds of the trust property in the possession of the trustee, or previously received by the trustee and converted to his or her use."

Section 20 Limitation Act, Cap.80 provides (I quote):

"Subject to section 19(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy or damages in respect of those arrears shall be brought after the expiration of six years from the date on which the interest became due."

I have considered the applications and supporting affidavit and annexures, affidavit in reply and annexture attached, submissions for and against the applications and the authorities cited and I do not wish to

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reproduce them. I have also considered the position of the law on limitation in Section 5, 19 (1) and 20 of the Limitation Act, Cap.80. The effects of the same are claims for recovery of land or beneficiary interest in an estate of a deceased person cannot be brought after the expiry of 12 years from the time when the cause of action accrued.

The plaintiff/respondent does not dispute being a daughter of late Enock Kaino who died on 28th May, 1998. She brings the instant C. S No.01/2022 for a declaration that the suit land belongs to the estate of late Enock Kaino and cancellation of letters of administration granted to the 1st applicant among other orders as per paragraph 3 of the plaint. The respondent, however, brings in another aspect of joint contribution in the suit property by her mother Edinaisi Kaino as such qualifying the suit property as matrimonial property. These claims are for beneficiary interest in an estate of a deceased person to which Section 20 of the Limitation Act applies. Meanwhile, for actions for recovery of land, the applicable law is Section 5 of the Limitation Act.

Causes of action in respect of the claims of recovery of land of a personal estate or beneficiary interest in the estate of late Enock Kaino arose when Kaino died that is on 28th May, 1998. Therefore by the respondent filing her suit on 7th September, 2022 she was outside the limitation period. Even if Court is to go by her argument that the suit properties constituted matrimonial properties jointly owned by her mother Edinaisi Kaino, the cause of action still arose when the 1st Applicant acquired letters of administration that was on 23rd April 1999 and not when she learnt that the 1st Applicant acquired the grant in 2019. Either way the respondent's claims are outside the 12 years period. Therefore, respondent's claim under C. S. No.01/2022 after over 20 years is time barred under Section 5 and 20 of the Limitation Act, cap.80.

The respondent in her plaint did not plead any disabilities. Order 7 Rule 6 Civil Procedure Rules requires plaints brought outside the limitation period to plead disability and order 7 Rule 11 of the said Rules requires a plaint to be rejected if bared by limitation without pleading disability. Consequently the plaint in respect of C. S No.1/2022 is rejected for failure to comply with Order 7 Rule 6 of the Civil Procedure Rules and it is accordingly struck out.

Consequently, issue No.1 is answered in the affirmative.

## Issue No.2: Whether civil suit No.01/2022 is resjudicata?

Section 7 of the Civil Procedure Act, Cap.71 provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such.

The doctrine of residdicate applies to debar subsequent litigation where four elements are met which include;

- 1. The prior decision was rendered by a court of competent jurisdiction; - 2. There was a final judgment on the merits; - 3. The parties were identical in both suits; and

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4. The prior and present causes of action are the same.

In short there must be finality of decisions by a Court of competent jurisdiction on its merit, arising from similar parties or those deriving their interest under the same title and the cause of action must be the same.

I have looked at the plaint in C. S No.21/2019, C. S No.26/2019 and that of C. S No.01/2022 from which the instant application No.10/2023 arises. The said plaints are similar and identical in that all the parties in the said suits claimed or their dispute arose in respect of the estate of late Enock Kaino who died on 28th May, 1998 and the properties claimed are the same.

In C. S No.21/2019 the parties were Tumuhereirwe Eva as the plaintiff and Mubangizi Obadia Kaino and Agaba Naboth Mukana as the defendants (applicants herein) while in C. S No.26/2019 the parties included Tumuherirwe Eva and Nyabaishiki Jessica as plaintiffs and and Mubangizi Obadia Kaino and Agaba Naboth Mukana as the defendants (applicants herein). In the current C. S No.010/2022, the parties include Joy Mugisha as the plaintiff and Mubangizi Obadia Kaino and Agaba Naboth Mukana as the defendants/applicants.

It is a fact on the face of the pleadings in all the foregoing suits that late Enock Kaino died on 28th May, 1998 and the parties excluding the 2nd defendant/2nd applicant are his children. It is also a fact that on 23rd April, 1999 the 1st applicant secured letters of administration in respect of late Enock Kaino. Further in C. S No.21/2019, C. S No.26/2019 and the current C. S No.010/2022 the plaintiffs, who are siblings to the 1st defendant/ 1st applicant all challenge the validity of the letters of administration granted to the 1st applicant in respect of the estate of late Enock Kaino alleging that he acquired the same without their knowledge and fraudulently. They also challenge the land transactions in respect of properties which they believe formed part of the estate of late Enock Kaino.

In the current suit filed on 07/09/2022, the plaintiff (Joy Mugisha), though not a party to the prior civil suits she is also a sister to the parties to the prior suits. She claims that whereas the properties formed part of the estate of late Enock Kaino, late Enock Kaino jointly owned the same with their mother one Edinaaisi Kaino as it was matrimonial property. She also claims that she was not aware of the grant to the 1st applicant/1st defendant until 2019 when he sold the land which formed part of the said estate to the 2nd applicant/2nd defendant. She seeks for declaration that the letters of administration to the 1st applicant/1st defendant was null and void, cancellation of the letters of administration granted to the 1st applicant for fraud, declaration that the sale between the applicants/defendants made on 24/04/2019 was null and void, permanent injunction, declaration that properties comprised in block 11, plots 1614, 1559, 1569, 1633 and 1634 constitute part of the estate of late Edinaisi Kaino being matrimonial properties.

C. S No.01/2022 is on all fours with my understanding of Section 7 of the Civil Procedure Act as the parties are substantially the same ie the plaintiff in Civil suit No.01/2022 derives her claims from the estate of late Enock Kaino though she disguised it under the concept of matrimonial property. The issues and reliefs sought are substantially similar; that is recovery of suit properties and claim for cancellation of letters of administration (claim for beneficiary interest/share in the estate of Enock Kaino). C. S No.26/2019 was

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handled in the High Court of Kabale, which is a competent Court. The Court dismissed C. S No.26/2019 filed by Tumuhaire Eva and Nyabaishiki Jesica, who are siblings to the respondent and the 1st applicant in Civil suit No.01/2022. The ruling dated 16th May, 2022 before Justice Moses Kazibwe Kawumi, which was based on point of law finally disposed of C. S No.26/2019 for being time bared and that formed the final decision of the Court on the merit of the preliminary point of law. That decision binds the parties therein and their privies including respondent herein for as long as it has not been set aside by a higher Court. It is my finding that the respondent, through the concept of matrimonial property and ignorance about the existence of Civil Suit No.26/2019 and the grant of letters of administration to the 1st applicant devised a means of coming back to the same Court to re-litigate a matter which was already settled by the same Court in prior C. S No.26/2019. Litigation must come to an end.

Consequently, issue No.2 is also answered in the affirmative.

# Issue No.3: Whether Civil suit No.01/2022 is frivolous, vexatious and abuse of court process?

A suit is frivolous, vexatious and abuse of court process if filed in court by a party knowing or having reasons to know that it has no genuine/legal basis, with intent to use court to achieve ulterior motives.

The respondent ought to have known, by doing due diligence that there was a suit filed at the High Court of Uganda at Kabale in respect of the same estate she claims in the instant C. S No.01/2022 and the said suit had been disposed of. I therefore find C. S No.01/2022 frivolous, vexatious and abuse of court process.

Consequently, issue No.3 is as well answered in the affirmative.

# Issue No.4: What remedies are available to the parties?

Having been successful in proving the application, the applicants are entitled to remedies as thus;

- 1. Civil Suit No.01/2022 is declared barred by limitation; - 2. Civil Suit No.01/2022 is declared resjudicata; - 3. Civil Suit No.01/2022 is declared frivolous, vexatious and abuse of court process; - 4. Civil Suit No.01/2022 is struck out and dismissed; and - 5. Costs of this application and Civil Suit No.01/2022 awarded to the applicants.

#### It is so ordered.

Ruling read and delivered at Rukungiri this......15th .....day of......... March.......2023 in the presence of both parties and their Counsel.

$\overbrace{\cdots\cdots\cdots}$ ....................................... HON. JUSTICE TOM CHEMUTAI, JUDGE

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