Hofokam Limited v Tibagwa (suing throgh her lawful attorney kusiima) (Miscellaneous Application 102 of 2024) [2025] UGHC 93 (17 January 2025)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA MISC. APPLICATION NO. 102 OF 2024 (Arising from Civil Suit No. 070 of 2023)

#### HOFOKAM LTD:::::::::::::::::::::::::::::::::::: VERSUS

**CATHERINE TIBAGWA** (Suing through her lawful Attorney KUSIIMA ROBINAH)::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **RULING**

- This application brought by Notice of motion is seeking for orders $[1]$ that the Respondent/Plaintiff's suit be rejected, struck out and/or dismissed for failure to disclose a cause of action, being rejudicata, being statute barred and contravening the ruling of Hon. Justice Gadenya Paul Wolimbwa, dated 23/8/2021in MSD H. C. C. S. No. LD **006 of 2016** and then, that costs be in the cause. - The application is supported by an affidavit deposed by **Charles** $[2]$ Isingoma Kaahwa, the Managing Director of the Applicant company and opposed by the affidavit in reply deposed by Kusiima Robinah, the Respondent.

#### Background.

- The Respondent instituted Civil Suit No. 70 of 2023 against the $[3]$ Applicant (1<sup>st</sup> Defendant) and Hoima District Land Board (2<sup>nd</sup> Defendant) for fraudulent acquisition of title to property comprised in FRV MAS 242, Folio 12, Main Street, Plot 24, land at Bank Cell, Hoima Municipality (formerly known as LRV 108, Folio 18, Plot 24, Main Street Hoima) for which the Respondent sought inter alia, cancellation of title, a permanent injunction and damages. - The Applicant/ $1^{st}$ Defendant filed a defence denying the Respondent's $[4]$ claims and a counterclaim for inter alia, a declaration that it is the legal owner of the suit property.

- The suit property originally comprised in LRV 108, Folio 18, Plot 24, $[5]$ Main Street, Hoima was originally registered in the names of a one Merali Ratansi on 7/12/1929 and upon his demise, the property was registered in the names of Kulsum Jamal, the deceased's widow who had acquired letters of administration for her husband's estate. The said Kulsum Jamal sold the said property to a one Joseph Kasaija (deceased). - The suit property being Asian property, upon expulsion of Asians $[6]$ from Uganda in 1972, the suit property was vested in the Departed Asian Properties Custodian Board (DAPCB) by virtue of S.13 of Decree No. 27 of 1973. The late Joseph Kasaija applied to the DAPCB for a transfer of the suit property and the said property was transferred into his names on the $6/2/1978$ . - However, by virtue of the Expropriated Properties Act No. 9 of $[7]$ 1982, the suit property was later vested in the Government under the control of DAPCB and under S.2 of the Act, all purchases and transfers or any dealings in property that took place between when the properties were expropriated by Government in 1973 (i.e. by virtue of Decree No. 27 of 1973) and the time when the Expropriated Properties Act, No. 9 of 1982 came into force on 21/2/1983, were nullified thus the sale of the suit property by Kulsum Jamal to the late Joseph Kasaija in 1978 and the subsequent acquisition of the property from DAPCB were accordingly affected by the operating regime of the law. - On 19/3/2006, the DAPCB wrote to the RDC Hoima District informing [8] him that the purchase of the suit property by Joseph Kasaija in 1978 had been nullified by the provisions of the Expropriated Properties Act, 1982 and the said Kasaija Joseph and the Respondent (widow of the late Tibagwa) who were in occupation of the suit property at the time were requested to apply and purchase the suit property then, offered for sale by the DAPCB. - Upon the re-advertisement for sale of the suit property, the $[9]$ administrators of the estate of the late Joseph Kasaija i.e. Twesige

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Albert, Mbabazi Alex & Byaruhanga Julius re-purchased the suit property from the Government of Uganda at a consideration of Ugx. $10,000,000/$ = though a certificate of purchase or receipt of property was issued under the name of Joseph Kasaija who was already the deceased. The administrators of the estate of the late Joseph Kasaija sold the suit property to the Applicant on 14/12/2015.

- [10] According to the Respondent, the suit land was acquired by the Respondent and her late husband, Joshua Tibagwa with Thomas Kasaija (father to the late Joseph Kasaija) on the other hand in 1971 and each of them occupied and developed half of the property, coexisting harmoniously until in 2006 when the DAPBC offered them the property and the Respondent and her late husband together with Thomas Kasaija on the other hand, agreed to jointly obtain the property and they contributed funds for the said process. That it is then that the Respondent and her late husband in 2015 learnt that the family of Thomas Kasaija fraudulently registered the property in the names of Joseph Kasaija who was already deceased and then into the names of had the property transferred the later. administrators of the estate of the late Joseph Kasaija without the Respondent and her late husband's knowledge with the intention of defeating their interest in the property. - [11] That it was upon realising of this fraud that the Respondent's husband instituted MSD H. C. Civil Suit No. 06/2016 against the administrators of the estate of the late Joseph Kasaija challenging the alleged fraudulent transfer of the property in their names and further, caveated the property with the aim of protecting their interest. - [12] Unfortunately for the Respondent, her late husband's MSD C. S. No. LD 06 of 2016 was on 25/8/2021 dismissed for non-disclosure of a cause of action. Upon dismissal of the suit, the Applicant proceeded to apply for and obtained a certificate of title of the suit property now comprised in FRV MAS 242, Folio 2, Plot 24, Main Street, Bank Cell, Hoima. Consequently, the Respondent instituted the present suit against the Applicant's acquisition of the suit land on grounds of

fraud leading to the present preliminary objections raised by the Applicant.

# **Issues for determination.**

- [13] As per submissions of both Counsel for the parties, the following issues are for determination of this application. - Whether the Plaintiff's suit discloses a cause of action. $\mathbf{1}$ - Whether the Plaintiff's suit is resjudicata. $2.$ - Whether the Plaintiff's suit is barred by statute. $\overline{3}$ . - Whether the Plaintiff's suit contravenes the ruling of Hon. Justice $4.$ Gadenya Paul Wolimbwa dated 23/8/2021 in MSD C. S. LD 006 of 2016.

# Issue No.1: Whether the Plaintiff's suit discloses a cause of action.

- [14] In order for one to prove that there is a cause of action, it is now a settled proposition of the law, the plaint must show 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, Tororo Cement Co. Ltd vs Frokina International Ltd S. C. C. A. No. 2 of 2001. As was held in Norottan Bhatia vs Boutique Shazim Ltd S. C. C. A. No. 19 of 2009, in determining whether a plaint discloses a cause of action, the court must look at **only** the plaint and annexures thereto with the assumption that all facts pleaded are true. A cause of action therefore, is that set of facts when considered together show that the plaintiff enjoyed a certain right, that the right was violated by the defendant and that by virtue of the violation, the plaintiff has suffered loss and is entitled to a remedy. - [15] In the instant case, the Respondent/Plaintiff's cause of action against the Applicant (as $1<sup>st</sup>$ Defendant) and Hoima District Land Board (as $2<sup>nd</sup>$ Defendant) is fraudulent acquisition of title to property comprised in FRV MAS 242, Folio 12, Main Street, Plot 24, Bank Cell, Hoima Municipality (formerly LRV 108, Folio 18, Plot 24, Main Street Hoima) for which the Respondent/Plaintiff, interalia, seeks cancellation and a

The cause of action is based on long permanent injunction. possession/stay and utilization of the suit property since the early 1970s todate where she owns a shop and collects rent from several tenants as the owner of the property.

- [16] The Plaintiff claims an equitable interest on the suit property as a bonafide occupant thereof and a permanent injunction restraining the Defendants from interfering with the long possession of the property contending that the Defendants violated her right when they fraudulently created a title with the intention of dispossessing her of the property, defeating her interest thereon. The particulars of the fraud as clearly set out in the plaint at this stage, have to be presumed true. - [17] Counsel for the Applicant submitted that the Plaintiff does not disclose a cause of action on the basis that the suit land was dealt with under the Expropriated Properties Act, Cap. 87 from which the administrators of the estate of the late Joseph Kasaija derived title and therefore passed a good title to the 1<sup>st</sup> Defendant/Applicant. Counsel based all this on the history of the suit property as clearly brought out by this court in the background of this application. This This court at this is however the Applicant/ $1^{st}$ Defendant's case. stage is neither required to go into the defence nor to test with rigor whether what the facts as stated in the plaint with its annexures is It is merely to look at the plaint and the accompanying true. annexures and assume that the facts alleged are true. - [18] Whereas I agree that S.2 of the Expropriated Properties Act nullified all dealings of whatever nature and kind in the property of departed Asians prior to the enactment of the Act notwithstanding any provisions of the law thus nullifying the sale of the suit property to the Kasaija's family in 1978 and whatever understanding that existed between the Kasaija's family and the Respondent's late husband Joshua Tibagwa, this did not extinguish the Respondent's equitable interest of long possession/stay on the suit property for about 13 years at the time of expropriation of the suit property and about 45 years as of when the suit property with her developments is alleged

to have been fraudulently acquired by the Applicant/Defendant. Indeed, the Respondent's possession was recognised by DAPCB when it required the occupants who included the Respondent, to apply and purchase the property in its letter dated 13/3/2006 which was accordingly copied to the Respondent.

- [19] The Respondent/Plaintiff's claims in the plaint that her late husband Joshua Tibagwa jointly acquired the suit property with Thomas Kasaija, father to Joseph Kasaija from whom the administrators of his estate and the Applicant derive interest, by jointly contributing funds for the acquisition of the property from Government and therefore, that they co-owned the property and what the Applicant and his Counsel are contending on the other hand, are matters of evidence which shall be subject to proof during the trial. - [20] There are therefore pertinent serious triable issues for trial based on the averment in the plaint, i.e.: - Whether the Respondent/Plaintiff possess any equitable interest $(a)$ in the suit property or whether the Respondent and her late husband contributed funds to the Kasaija family for the purchase of the suit property. - Whether the Applicant/ $1^{st}$ Defendant's title was fraudulently $(b$ procured to defeat the Respondent's interest in the suit property. The parties are entitled to the determination of the above issues on merit. - $[21]$ As a result of the totality of the above, I do find that as per the plaint, the Respondent/Plaintiff has a right in the suit property based on her possessionery rights, which rights have been allegedly violated by virtue of alienation and she holds the Applicant and the 2<sup>nd</sup> Defendant liable. The $1^{st}$ issue is found in the affirmative. The Respondent's plaint discloses a cause of action against the Applicant.

# Issue No.2: Whether the Respondent/Plaintiff's suit is resjudicata.

[22] The Applicant's claim that the Respondent/Plaintiff's suit is res judicata is based on the ruling in MSD H. C. C. S. No. LD 006 of 2016 which was instituted by the Respondent's late husband Joshua Tibagwa against the Administrators of the late Joseph Kasaija, his father Thomas Kasaija and the Commissioner Land Registration that was rejected and struck out under O.7 r.11(a) CPR by Hon. Justice Gadenya Paul Wolimbwa for non-disclosure of a cause of action.

- [23] Res judicata is governed by S.7 CPA which states that a court shall not try any suit 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 the subsequent suit in which the issue has been subsequently raised, and has been heard and finally decided by that court. See also the case of James Katabazi & 21 ors vs Secretary General of the East African Community & Anor, E. A. CJ Ref. No. 1 of 2007 where the doctrine of **Res judicata** was summarised as follows: - The matter must be directly and substantially in issue in the two $(i)$ courts. - The parties must be the same or the same parties under whom $(ii)$ any of them claim, litigating under the same title. - (iii) The matter must have been finally decided in the previous suit.

In Kamunye & ors vs The Pioneer General Assurance Society Ltd [1971] E. A 263, the test to be applied by court to determine the question of **Res judicata** was held thus:

"The test whether or not a suit is barred by res judicata...- is the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject matter of litigation and which parties or their privies exercising reasonable diligence, might have The subject matter in this brought forward at the time.

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subsequent suit must be covered by the previous suit, for res judicata to apply".

- [24] In the instant case, applying the above principles, I find it apparently clear that by all standards, Civil Suit No. 006 of 2016 cannot be said to be res judicata because, whereas the former suit was instituted by Joshua Tibagwa against the administrators of the estate of Joseph Kasaija, his father Thomas Kasaija and the Commissioner Land Registration, as Defendants, the present suit was instituted by the Respondent in her own right as the owner of the suit property, suing the Applicant and Hoima District Land Board. So, the parties are not the same or any of them litigating under the same title. Lastly and most importantly, the ruling in Civil Suit No. 06/2016 was not a final decision of court for it did not finally determine the rights of the parties to the dispute. It is therefore not correct as the Applicant asserted in Para. 12 of his affidavit in support of the application that "there is no controversy on the land since the issue of ownership of the suit property was resolved by the ruling... in Masindi High Court -HCT-O-CV-CS-LD-006/2016", what Justice Gadenya did was the rejection of the suit and striking it out for non-disclosure of a cause of action. It was not a final decision or judgment in rem that bound the world including the Respondent. The parties were not given an opportunity to prove their respective cases and or rights and court determine their rights over the suit property. - [25] In conclusion over this issue, I find that the suit is not res judicata. The findings on this issue also disposes off issue No.4 i.e. whether the Respondent/Plaintiff's suit contravenes the ruling in C. S. No. 06 of 2016. The present suit does not contravene the ruling because the present Plaintiff had a right to file the present suit in her own right for purposes of this court to determine the rights of the parties.

## Issue No.3: Whether the Respondent/Plaintiff's suit is statute barred.

[26] The Respondent/Plaintiff in the instant case specifically pleaded fraud and set out the particulars of the alleged fraud. In particular, the Respondent/Plaintiff pleaded in para "J" and "O" as follows:

"(j) ... the family of Thomas Kasaija acted fraudulently and registered the title into their names in 2015. The land was registered into the names of Joseph Kasaija who was already deceased and then transferred to his sons [Administrators of the deceased Joseph Kasaija] without the knowledge of the Plaintiff and her husband and with clear intention of unlawfully defeating their [Respondent/Plaintiff and her husband] interest in the property"

"(o) The $1^{st}$ Defendant [Applicant] did not consult the plaintiff who had developed and was using the property before purchasing the said property. The $1^{st}$ Defendant [Applicant] instead connived with the Kasaija family and the 2<sup>nd</sup> Defendant [Hoima District Land Board] with the intention of overshadowing the Plaintiff's [Respondent] claim in the property"

- pleadings the that the above from $[27]$ It is apparent Respondent/Plaintiff's complaints are in regard to the fraudulent acquisition and sale of the suit land by the administrators of the estate of Joseph Kasaija to the Applicant emanating from 2015 when the Respondent and her husband discovered the fraud. - [28] Since the present suit is for recovery of land, S.5 of the Limitation Act restricts actions for recovery of land to 12 years from the date on which the right of action accrued to the Plaintiff. Under S.25 of the Act, where in the cause of action for which a period for limitation is prescribed either- - "(a) the action is based upon the fraud of the defendant or his or her agent or any person through whom he or she claims or his or her right. - the right of action is concealed by the fraud of any such $(b)$ person as is mentioned in paragraph (a) of this section, or - (c) the action is for relief from the consequences of a mistake, $\frac{d^2}{dt^2}$

The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it,..."

The Laws of England 3<sup>rd</sup> Ed. Vol. 24 para. 631 page 318 on what constitutes fraudulent concealment states:

"Fraudulent concealment has been defined, in relation to an action to recover property, as designed fraud by which a person, knowing to whom the right belongs, conceals the circumstances giving the right and by means of such concealment enables himself of some other person to enter and hold property".

- [29] In the instant case, the Respondent/Plaintiff pleaded that the fraudulent concealment of the registration of the suit property in the names of the Kasaija family was discovered in 2015 which was followed by the fraudulent sale of the property to the Applicant/ $1<sup>st</sup>$ In the premises, since where time of limitation is Defendant. imposed, time begins to run from the date on which the cause of action accrues, Eridadi Otabong vs A. G. S. C. C. A. No. 6 of 1990 [1992] v KALR 1, in the instant case, filed on 16/8/2023 and as per **S.5 of the Limitation Act,** it ought to have been filed within 12 years from 2015 when the Respondent/Plaintiff discovered that the suit property was fraudulently registered in the names of Joseph Kasaija and then, subsequently sold to the Applicant. In the premises, I find that the Respondent's suit was filed within 8 years and therefore within the stipulated limitation period of 12 years. - [30] In the premises, I find that all the 4 preliminary objections raised lack The Plaintiff's suit discloses a cause of action against the merit. Applicant, it is not *res judicata* and it is not time barred. The application is as a result, accordingly dismissed with costs to the Respondent. The main suit is to be heard on its merit.

Dated at Hoima this $17<sup>th</sup>$ day of **January**, 2025.

Byaruhanga Jesse Rugyema JUDGE