Bwambale v Byabashaija & 10 Others (Civil Suit 24 of 2020) [2023] UGHC 498 (12 October 2023)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**CIVIL SUIT NO OO24 OF 2020**

**BWAMBALE A. ADAM PLAINTIFF**

**VERSUS**

**BYABASHAIJA PATRICK & 10 OTHERS DEFENDANTS**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Plaintiff represented by M/S Anguria & Co. Advocates.

Defendant represented by M/S Ouma & Co. Advocates.

**RULING:**

This is a ruling on preliminary objections based upon points of law raised by Counsel for the defendants in accordance with Order 6 Rule 28 of the Civil Procedure Rules (CPR) SI 71-1 as amended.

According to Paragraph 3 of the Plaint, the Plaintiff’s claim against the defendants jointly and severally was for:

1. A declaration that the plot of land comprised in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District belongs to the Plaintiff. 2. A declaration that the defendants are trespassers on a plot of land LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District. 3. An order of vacant possession against the defendants on land comprised in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District. 4. An order of eviction against the defendants from land comprised in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District. 5. An order of demolition of the defendant’s illegal structures constructed on land comprised in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District. 6. An order for mesne profits of UGX 612,000,000/= for the period that the defendants have been in illegal occupation of the suit land. 7. An order for a permanent injunction restraining the defendants, their agents, servants, assignees, or any other person or entity rightly claiming interest under them from interfering with and further trespassing on the suit land. 8. General damages for the inconvenience and economic loss caused on to the plaintiff by the defendants for illegally occupying, dealing and trespassing on the said land without his consent. 9. Interest on the mesne profits at court rate from the date of the cause of action till payment in full and; 10. interest on the general damages at 24% per annum from the date of judgement till payment in full and; 11. costs of the suit.

According to paragraph 4 of the plaint, the plaintiff laid out the facts constituting the cause of action against the 1st and 2nd defendants as follows.

1. The plaintiff is the registered owner of land comprised in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District having purchased the same from Ngamije Sospater. (Proof of purchase attached to the plaint in form of sale agreement and certificate of title marked “A” and “B” respectively). 2. In the year 2003 the Defendants together with several other persons unknown to the Plaintiff started using the suit land for grazing animals and cultivation without the authorization or consent of the Plaintiff. 3. In the year 2018 the 1st and 2nd Defendants accompanied by several people unknown to the Plaintiff planted a boundary hedge on the suit land and claimed ownership of 180 acres without the consent of the Plaintiff. 4. The Defendants employed surveyors to survey and demarcate the suit land in furtherance of their claim of ownership without the consent of the Plaintiff. 5. The Plaintiff demanded on several occasions that the Defendants and any other persons brought on the land by the Defendants pay rent directly to him for using his land without consent but the Defendants had refused to do so claiming that the land belonged to them. 6. The Defendants with the support of the 1st and 2nd Defendants in their capacity as Chairpersons of Nyakatonzi cattle keepers and the LC III Chairperson of Nyakatonzi Sub-County had been authorizing many persons to utilize and rent out the suit land without consent and authority of the Plaintiff. 7. The Plaintiff had on several occasions demanded that the Defendants vacate the suit land and cease all activities on the suit land and desist from further renting out portions of the land by the Defendants had refused and/or neglected to do the same asserting that the land belongs to them.

According to Paragraph 6 of the Plaint, the Plaintiff contended that the Defendant’s continued occupation and the use of the suit land had caused him financial loss and to that extent sought to move court to award him mesne profits from the year 2003 when the defendants illegally entered the land up to date.

When this matter came up for mention on 19th June 2023, Counsel for the defendants expressed the intention to raise a preliminary objection in this matter. Counsels for the Plaintiff and Defendants filed written submissions upon which the Court now relies to make this ruling.

The defendants raised three preliminary objections as follows:

1. The suit before court is time-barred and therefore bad in law. 2. The plaint in effect discloses no cause of action against the defendants. 3. The illegality of the transaction between the plaintiff and Ngamije Sospatel.

**OBJECTION 1:**

**DEFENDANT’S SUBMISSIONS ON LIMITATION:**

Counsel for the defendant placed reliance on the case of ***Yaya Farajallah v. Obur Ronald & 3 Others – HCCA No. 81 of 2018***wherein Justice Stephen Mubiru defined the preliminary objection to consist of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit.

Counsel for the Defendant further cited Order 6 Rule 28 of the Civil Procedure rules as amended wherein it is stated that a point of law that is pleaded which when so raised is capable of disposing of the suit, may then by consent of the parties, or by order of the court on the application of either party, be set down for hearing and disposed of at any time before the hearing.

Counsel for the defendant went on to explain that the plaintiff had filed the suit for a declaration of ownership of land comprised in in LRV 1358 Folio 25, Plot 1 Block 36 Land at Nyakatonzi, Rwenzori, Kasese District. Counsel further pointed out that the Plaintiff was seeking a declaration that the defendants were trespassers on the suit land, and that the plaintiff further sought an eviction order, an order for mesne profits and general damages among other prayers.

Counsel for the defendant pointed out that under Paragraph 4(b) of the plaint the Plaintiff had pleaded as follows. “*The defendants in the year 2003 together with many other people unknown to the plaintiff started using the plaintiffs land for grazing animals and cultivating crops without the plaintiffs consent or authorization.*”

Counsel for the Defendant further pointed out that under Paragraph 6 of the plaint the Plaintiff had stated as follows. “*The plaintiff shall aver and contend that the defendants continued occupation and use of the suit land has caused him financial loss... But the defendants have continued to earn income by renting about 180 acres of land out and also using the suit land without the plaintiffs consent or authorization for which the plaintiff shall move court to award him mesne profits from the year 2003 when the defendants illegally entered the land up-to-date.”*

Based upon the observations above, Counsel for the Defendant was of the view that the plaintiff had clearly asserted that he had first come to learn of the trespass and/or illegal acts of the defendants in the year 2003 and that as such the plaintiff's cause of action for recovery of the suit land and in trespass had a reason in the year 2003.

Counsel for the Defendant then placed reliance on Section 5 of the Limitation Act Cap 80 and argued that there was a 12 year time limit for any person to take out a claim seeking to recover land or any action in trespass.

Furthermore Counsel for the Defendant further argued that under Section 6(1) of the Limitation Act Cap 80 it was provided that,

“*Where the person bringing an action to recover land, or some person through whom he or she claims has been in position of the land and has while entitled to it been dispossessed or discontinued his or her possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”*

Counsel for the Defendant contended that the Plaintiff’s cause of action arose in 2003 when he was dispossessed by the defendants and that it was also clear from the Plaint and its annexes that the Plaintiff acquired the suit land in 2003 and that at the time of the purchase the suit land was in position of the defendants. Counsel for the Defendant therefore observed that there had been a period of 17 years between the time when the cause of action arose and when the suit was filed and that to that extent the plaintiffs claim was untenable and could not be sustained by court as it was time-barred.

Counsel for the Defendant went on to highlight that the Plaintiff’s arguments as raised in the written statement of defence and counterclaim were to the effect that the cause of action was in trespass and that trespass being a continuous tort was not subject to the law of limitation.

Counsel for the Defendants contended that upon close examination of the Plaint it was evident that the suit was for recovery of land under the Plaintiff was seeking an eviction order an order for vacant position against the defendants. Counsel further argued that even if the suit had been based on trespass, it was now well settled law that all claims for recovery of land including those in trespass of a continuous nature are subject to the law of limitation and more specifically Section 5 of the Limitation Act Cap 80.

Counsel for the Defendants placed reliance upon the decision in ***Kiwanuka Kakumutwe v. Kibirige Edward (Civil Apppeal No. 272 of 2017)***wherein it was held that,

“*Since the tort of trespass to land deals with possessory rights to land, an auction for trespass to land falls squarely within the scope of ‘actions to recover land' whose limitation period is prescribed by the Limitation Act. Said differently, the Limitation Act applies to actions in trespass to land.”*

Counsel for the defendant further pointed out that in the case above the Court of Appeal had cited with approval the case of ***Lutaaya v. Stirling Civil Engineering Company*** wherein it was held that where trespass is continuous, the person with the right to sue may, subject to the law on limitation, exercise the right immediately after the trespass commences or anytime during its continuance or after it has ended.

Counsel for the Defendant therefore contended that the legal position is that where there is trespass whether continuous or not, any claim arising therefrom would still be subject to the law on limitation based upon when the cause of action arose. To that extent it was Counsel’s position that the Plaintiff had neglected his rights for over 17 years and that the doctrine of acquiescence had caught up with him.

Counsel for the Defendant concluded his arguments by stating that the suit was clearly outside the limitation period and therefore constituted an illegality and could not be entertained by the court. Counsel for the Defendant therefore prayed that the court find merit in the preliminary objection under the court be pleased to dismiss the plaintiff suit with costs to the defendants.

**PLAINTIFF RESPONSE TO FIRST OBJECTION:**

In response to the Defendants’ submissions on the question of limitation Counsel for the Plaintiff argued as follows.

Counsel for the Plaintiff argued that the suit is not time barred. According to Counsel for the Plaintiffs the question was when the cause of action in trespass arose and that the Plaintiff’s Plaint was clear on this. According to Paragraph 4(b) of the Plaint, the Plaintiff stated that the first and second Defendants along with other people had planted a boundary hedge on the suit land in 2018 and carved out 180 acres of land without the consent of the Plaintiff. Furthermore, according to paragraph 4(c) of the Plaint, the Plaintiff stated that the Defendants had started claiming ownership of the land and engaged surveyors to demarcate the suit land.

Counsel for the Plaintiff agreed that Section 5 of the Limitation Act restricts an action to recover land to 12 years from the time the cause of action arose.

However, it was Counsel’s submission that according to the facts in the Plaint the cause of action in the suit arose in 2018. Counsel for the plaintiffs contended that the cause of action came about in 2018 when the defendants employed a surveyor to demarcate 180 acres of the suit land.

Counsel for the plaintiffs therefore argued that the suit which had been filed in 2020 was not out of time and prayed that court overrule the preliminary objection with costs.

**DEFENDANT’S SUBMISSIONS IN REJOINDER:**

Counsel for the Defendants submitted in rejoinder that the suit was time barred and reiterated that the Plaintiff was bound by his own pleadings wherein he sought to recover mesne profits for a period of 17 years from the year 2003. Counsel for the Defendants further argued that even if the Plaintiff had not intended to plead the time when the cause of action against the Defendants arose, the Plaintiff had by necessary implication under Paragraph 6 of the plaint pleaded that the cause of action arose against the Defendants in 2003.

Counsel for the Defendants argued that it would be prejudicial to the Defendants who had been on the land unchallenged for 17 years after the Plaintiff had purchased the same. Counsel for the Defendants further pointed out that the Plaintiff had not pleaded any of the exceptions under Section 21 of the Limitation Act and that as such his case fell under the operation of Section 5 of the Limitation Act rendering it barred by limitation.

Counsel for the Defendants argued that the rationale behind statutory provisions on limitation as stated by Lord Edmund-Davies in *BIrkett v. James (2 All England Reports [1977] P. 801)* at Pages 815-816 was as follows.

“*Statutory provisions imposing periods of limitation within which actions must be instituted seek to serve several aims. In the first place, they protect defendants from being vexed by stale claims relating to long past incidents about which their records may no longer be in existence and as to which their witnesses, even if they are still available, may well have no recollection. Secondly, the law of limitation is designed to encourage plaintiffs to institute proceedings as soon as it is reasonably possible for them to do so... Thirdly, the law is intended to ensure that a person may with confidence feel that after a given time he may regard as finally closed an incident which might have led to a claim against him, and it was for this reason that Lord Kenyon describe statutes of limitation as ‘statutes of repose'.”*

Counsel for the Defendant further cited the cases of ***Bernard Tumuhimbise & 3 Others v AG and Uganda Wildlife Authority – HCCS No. 778 of 2003*** and ***Peter Mangeni t/a Makerere Institute of Commerce v. Departed Asians Property Custodian Board - Civil Appeal No. 13 of 1995***in support of the position that a suit that is time-barred cannot stand.

Counsel for the Defendants concluded by reiterating that the Plaintiff suit was time barred for having been filed 17 years from the time the cause of action arose and accordingly invited Court to uphold the preliminary objection and to dismiss the plaintiff’s suit with costs to the Defendant.

**ANALYSIS:**

Order 6 Rule 28 of the Civil Procedure Rules SI 71-1 as amended provides that,

*“Any party shall be entitled to raise by his or her pleading any point of law, and any point so raised shall be disposed of by the court at or after the hearing; except that by consent of the parties, or by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing.”*

In the case of ***Mukisa Biscuit Manufacturing Co. Ltd v. West End Distillers Ltd (1969) EALR 196***, the defunct East African Court of Appeal held *inter alia* that,

*“A preliminary objection is in the nature of what used to be called a demurer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct.”*

It was also held in the same case that a preliminary objection consists of an error on the face of the pleadings which arises by clear implication out of the pleadings and which if argued as a preliminary objection may dispose of the suit. The Court further held that a plea of limitation was one such example of an error on the face of the pleadings.

In this case it was argued by Counsel for the defendants that the basis for the preliminary objection was limitation on the face of the Plaintiff’s own pleadings. To wit Paragraphs 4(b)&(c) of the Plaint clearly bring out a cause of action based upon facts arising in 2003. For avoidance of doubt Paragraph 4(b) & (c) of the Plaint states,

*“The facts constituting the cause of action [emphasis mine] against the 1st and 2nd Defendants arose as follows:*

1. *…* 2. *The defendants in the year 2003 together with many other persons not known to the Plaintiff started using the Plaintiff’s land for grazing animals and cultivating crops without the Plaintiff’s consent or authorization.* 3. *The 1st and 2nd defendants accompanied with many other people unknown to the plaintiff in the year 2018 without the consent of the plaintiff planted a boundary hedge on the suit land claiming ownership of the curved [sic] out part of the suit property measuring approximately 180 acres.* 4. *…”*

It is equally pertinent to note that even in Paragraph 6 of the Plaint the Plaintiff clearly expressed an intention to move court to award him mesne profits from the year 2003. It was on this basis that Counsel for the defendant argued and court agrees that the cause of action in this matter effectively commenced in 2003.

Considering the foregoing, I address my mind to Section 5 of the Limitation Act Cap. 80 upon which the defendants base the preliminary objection of limitation in this suit. It is provided thereunder that,

*“No action shall be brought by any person to recover any land after the expiration of twelve years from the date of which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.”*

In that same regard it is also pertinent to make reference to Section 6(1) of the Limitation Act wherein it is provided that the Plaintiff’s right of action upon dispossession is deemed to have accrued on the date of dispossession.

By the Plaintiff’s own submission in response to the objection on limitation they do not contest the application of Section 5 of the Limitation Act about their matter. However, Counsel for the Plaintiff argued instead that the cause of action arose in 2018 when the defendants took steps to have the land surveyed, demarcated and fenced off.

I am not inclined to accept the argument of Counsel for the Plaintiff with regard to when the cause of action arose. To do so would be tantamount to allowing the Plaintiff to significantly deviate from his own pleadings before this Court. As already pointed out above the Plaintiff clearly outlined facts constituting the cause of action in this matter in Paragraphs 4(b)&(c) among other facts wherein he clearly established the timeline for the cause of action as having commenced in 2003, 17 years prior to his filing of this suit.

Furthermore, the Plaintiff claimed mesne profits on the suit land dating back to 2003. It would therefore be disingenuous and irrational to claim profits ostensibly accrued prior to 2018 when the Plaintiff would have this court believe the cause of action arose.

At this point it is important to observe that according to the decision ***Mukisa Biscuit Manufucturing Co. Ltd v West End Distributors Ltd (supra)*** cited above, it was clearly established by the now defunct East African Court of Appeal that a preliminary objection raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct.

By virtue of the ***Mukisa*** decision the defendant is clearly estopped from denying the correctness of his own pleadings once the pleadings have been submitted before court and accordingly relied upon by the defendant to raise a point of law or to make any other response envisaged under the law.

Counsel for the defendant argued in rejoinder and the Court is inclined to agree that the Plaintiff is bound by his own pleadings. Counsel for the defendant also argued in rejoinder highlighting the purpose of limitation. In this regard reliance was placed upon the case of ***Birkett v. James (2 All England Reports [1977] 801, at Pages 815-816***. In that case Lord Edmund-Davies of the House of Lords laid down three important reasons justifying imposition of statutory periods as follows.

1. To protect defendants from being vexed by stale claims relating to long past incidents about which their records may no longer be in existence, and as to which their witnesses, even if they are available, may well have no recollection. 2. To encourage plaintiffs to institute proceedings as soon as it is reasonably possible for them to do so. 3. To ensure that a person may with confidence feel that after a given time he may regard as finally closed an incident which might have led to a claim against him.

The same principles are also aptly summarized in ***Donovan v Gwentoys Ltd (1990) 1 Weekly Law Reports 472*** where it was held by Lord Griffiths of the House of Lords that,

*“The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim which he never expected to have to deal with.”*

In the case presently before this Court, it is hard to understand why the Plaintiff having noted the commencement of the trespass in 2003 and the introduction of unknown persons onto the suit land as well as animal grazing waited till 2020 to bring a suit.

This Court also considered the pre-emptive arguments of Counsel for the Defendant against the Plaintiff’s arguments in response to the Written Statement of Defence concerning trespass being subject to the Limitation Act despite being a “continuous tort”. This Court is indeed bound by the decision of the Court of Appeal in the Kiwanuka case (*supra*) as cited by Counsel above and is obligated to follow the reasoning thereunder that in circumstances of continuous trespass, the person with the right to sue may exercise the right immediately after the trespass commences or any time during its continuance or after it has ended *subject to the law on limitation.* (Emphasis mine)

**RESOLUTION:**

Having considered all the facts and the law in this matter, it is the ruling of this Court that this suit is indeed time-barred by virtue of Sections 5 and 6(1) of the Limitation Act Cap 80. The suit was brought in 2020 17 years after the cause of action arose on the suit land. This rendered it outside the stipulated limitation period for matters related to recovery of land by 5 years.

To the extent of the inconsistence of this suit with the above-mentioned sections of the Limitation Act, the preliminary objection on limitation is hereby upheld.

However, in as much as no evidence could be entertained by court as to the lawful ownership/occupation of the suit land this court hereby determines that each party should bear their own costs in the matter.

In as much as the preliminary objection on limitation has been upheld this Court finds no need to pronounce itself on the remaining preliminary objections as the first preliminary objection effectively negates the suit.

**OBITER DICTA:**

Notwithstanding the findings of the Court in this matter, it is observed that In his arguments concerning the second preliminary objection Counsel for the defendant pointed out that by virtue of the suit effectively time-barred under Section 5 of the Limitation Act, the Plaintiff effectively had no cause of action as his right to sue had been premised on the assumption that he owned the property in dispute. Counsel for the defendant then pointed out that Section 16 of the Limitation Act effectively extinguished the Plaintiff’s title. For avoidance of doubt, Section 16 provides that,

*“Subject to Sections 8 and 29 of this Act and subject to the provisions thereof, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”*

Counsel further supported his argument with reference to the Kiwanuka case (supra) wherein the Court of Appeal held at P.879 that,

*“Accordingly at the time the plaintiff commenced court action in 2010, his title to the suit land had been long extinguished by operation of law and in law he no longer had any interest or estate or title in the suit land upon which to base the action seeking remedies sought from court.”*

While this court has opted not to pronounce itself on this objection for reasons explained above, Court respectfully *observes* that while mindful and duly bound by the doctrine of precedent and the principle of *stare decisis,* there may be a question of whether a property owner and bearer of a certificate of title can in fact have this right to property extinguished under Section 16 of the Limitation Act without due regard to the Constitutional standard of Protection from Deprivation of Property under Article 26 of the Constitution.

**ORDERS:**

In as much as the preliminary objection on limitation raised by the Defendants has succeeded, **I ORDER** as follows:

1. This suit stands dismissed under Order 7 Rule 11(d) of the Civil Procedure Rules as it is time-barred contrary to Section 5 of the Limitation Act Cap 80. 2. Each party shall bear its own costs.

**David S. L. Makumbi**

**AG. JUDGE**

**12th October 2023**